United States of America v. James Thomas McBride

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0093P (6th Cir.)
File Name: 04a0093p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES THOMAS MCBRIDE,
Defendant-Appellant.
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No. 02-3931
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 02-00060—George C. Smith, District Judge.
Argued: February 5, 2004
Decided and Filed: March 30, 2004
Before: NELSON, GILMAN, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Robert J. Dunn, Bay City, Michigan, for
Appellant. Daniel Allen Brown, ASSISTANT UNITED
STATES ATTORNEY, Columbus, Ohio, for Appellee.
ON BRIEF: Robert J. Dunn, Bay City, Michigan, for
Appellant. Daniel Allen Brown, ASSISTANT UNITED
STATES ATTORNEY, Columbus, Ohio, for Appellee.
2 United States v. McBride No. 02-3931
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. James Thomas
McBride was convicted of (1) presenting a false claim against
the IRS, and (2) various obstruction of justice and bankruptcy
fraud charges based upon certain financial transactions he
initiated that were related to a tax evasion case against his
girlfriend. He insisted on proceeding without the assistance
of counsel at his trial. The jury convicted him on all counts.
McBride seeks to overturn his conviction on the basis that his
waiver of counsel was ineffective and because the evidence
against him was allegedly insufficient. For the reasons set
forth below, we AFFIRM the district court’s determination
that McBride effectively waived his right to counsel at all
stages of the proceedings and that there was sufficient
evidence to convict him on Counts 2-6, but REVERSE
McBride’s conviction on Count 1 because there was
insufficient evidence to support the verdict on that charge.
We also VACATE McBride’s sentence and REMAND for
resentencing consistent with this opinion.
I. BACKGROUND
A. Factual background
Katina Kefalos was convicted by a jury, in proceedings
before District Judge Algenon L. Marbley, of evading
$12,990.67 in federal income taxes. Kefalos was McBride’s
girlfriend. During the course of her trial, Kefalos fired the
two attorneys—David Axelrod and Terry Sherman—who
were appointed to represent her. Prior to Kefalos’s
sentencing, McBride sent a check for the $12,990.67 to IRS
revenue agent Margaret Nypaver, who had unsuccessfully
attempted to collect this sum from Kefalos and who testified
against her at trial. McBride knew that his check would
“bounce” because it was drawn on an account that he had

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No. 02-3931 United States v. McBride 3
closed one year earlier. He then submitted bad checks from
the same account to the Franklin County Treasurer’s Office
to purportedly pay the real estate taxes for the first half of
2001 on the residences of Judge Marbley, attorneys Axelrod
and Sherman, and agent Nypaver.
The Treasurer’s Office, without waiting to see if the checks
would clear, issued statements to McBride acknowledging
that he had paid these real estate taxes. McBride then used
the statements as evidence of his creditor status when he
subsequently filed four involuntary bankruptcy petitions in
the United States Bankruptcy Court for the Southern District
of Ohio against Judge Marbley, attorneys Axelrod and
Sherman, and agent Nypaver. He also paid the $200 filing fee
for each of the bankruptcy petitions with more bad checks
that were drawn on his closed account.
B. Procedural background
McBride was indicted on the following six felony charges:
presenting a false claim against the government in violation
of 18 U.S.C. § 287, obstructing justice in violation of 18
U.S.C. § 1503, obstructing the due administration of the
internal revenue laws in violation of 26 U.S.C. § 7212(a), and
three counts of bankruptcy fraud in violation of 18 U.S.C.
§ 157.
In two appearances before the designated magistrate judge,
McBride was advised of his right to counsel, including his
right to appointed counsel if he could not afford to retain an
attorney. At his arraignment, McBride elected to proceed pro
se. David Graeff was appointed as standby counsel.
During a pretrial conference, the district court extensively
questioned McBride about his decision to represent himself.
McBride was first asked about his educational background
and then questioned to verify that he was not under the
influence of prescription medication, narcotics, or alcohol.
The court also inquired about McBride’s legal experience.
4 United States v. McBride No. 02-3931
McBride responded that he had been a criminal defendant
before, that he had assisted other people in representing
themselves in several cases, and that he had participated in
both federal and state criminal proceedings. The court then
went over each count of the indictment in detail and stressed
the severity of the penalties involved, including the possibility
of consecutive sentences. With the following exchange, the
court closed this line of questioning:
THE COURT: So, you know just exactly how much
jeopardy that you are in, in this
proceeding? You realize that if you
represent yourself, you are on your own?
Do you realize that, Mr. McBride?
MCBRIDE: Yes, sir, I do.
The court proceeded to ask McBride about his familiarity
with the trial process, the Federal Rules of Evidence, and the
Federal Rules of Criminal Procedure. McBride expressed
comfort with these procedural matters. He was then advised
that should he take the stand, he would have to ask questions
of himself and would not be permitted to testify in narrative
form. Finally, the court issued the following warnings to
McBride:
THE COURT: In looking at the charges against you, Mr.
McBride, and the complexity of this case,
this is not an ordinary - - this isn’t some
fender bender accident?
MCBRIDE: Exactly, sir.
. . .
THE COURT: At least in the opinion of the Court, you
would receive a far better defense if you
would proceed with a lawyer, rather than
being on your own. And I think it is

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No. 02-3931 United States v. McBride 5
unwise for you to try and represent
yourself. And while you are familiar with
the law, you are not familiar to the depth
that would be necessary to give yourself
the best possible defense, considering the
complexity of what you are charged with.
MCBRIDE: I understand.
THE COURT: And while you have been in a court
proceeding or maybe more than one,
different things come up at different
proceedings that you may never have seen
or heard of before. . . . And you have at
your elbow there someone who has had
many years of experience in this and other
courts and would be termed probably an
expert on federal trial work.
Let me ask you this, Mr. McBride. Is your
decision entirely voluntary on your part?
MCBRIDE: Yes, sir.
The district court then concluded that McBride had
knowingly and voluntarily waived his right to counsel, that he
was competent to do so, and that he had demonstrated an
understanding of the proceedings and the charges he faced.
Graeff was nonetheless requested by the court to continue in
his role as standby counsel.
McBride represented himself throughout his trial with the
assistance of Graeff. The jury found him guilty on all counts.
At sentencing, McBride raised no objections to the
Presentence Report and used the hearing to state his view that
the district court and the U.S. Attorney’s Office were engaged
in fraudulent “smoke and mirrors” accounting practices. The
district court sua sponte raised concerns about the probation
officer’s determination that McBride should be sentenced
6 United States v. McBride No. 02-3931
under the United States Sentencing Guidelines in accordance
with Offense Level 26, Criminal History Category IV, within
a range of 92-115 months of imprisonment. It decided that
McBride should instead be sentenced under Offense Level 22,
Criminal History Category IV. The court then sentenced
McBride to 78 months of imprisonment on Count 2; 60
months on Counts 1, 4, 5, and 6; and 36 months on Count 3,
all to be served concurrently.
II. ANALYSIS
A. McBride knowingly and intelligently waived his right
to counsel
1. Standard of review
McBride argues on appeal that he did not effectively waive
his right to counsel at trial or at sentencing. Both parties
agree that the standard of review for such claims is de novo,
but neither party provides any citations to applicable Sixth
Circuit precedent directly on point. Our sister circuits
uniformly apply a de novo standard of review to a district
court’s conclusion of law that a defendant has waived his
right to counsel. See, e.g., United States v. Kimball, 291 F.3d
726, 730 (11th Cir. 2002); United States v. Turner, 287 F.3d
980, 983 (10th Cir. 2002); Lopez v. Thompson, 202 F.3d
1110, 1116 (9th Cir. 2000) (en banc).
In this circuit, however, two trends have developed. We
have on occasion applied “plain error” review to examine the
validity of a defendant’s waiver of counsel. See United States
v. Modena, 302 F.3d 626, 630-31 (6th Cir. 2002) (holding
that the plain error standard applies where the defendant fails
to object to continuing his self-representation); United States
v. Herrera-Martinez, 985 F.2d 298, 301 (6th Cir. 1993)
(holding that because no specific objection was made at trial
to the defendant’s proceeding pro se, the plain error standard
applied).

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No. 02-3931 United States v. McBride 7
Other panels have approached the waiver-of-counsel issue
by omitting discussion of the standard of review and
proceeding to engage in a thorough review of the colloquy
between the district court judge and the defendant. See, e.g.,
United States v. Colbert, No. 00-1481, 2002 WL 31873484,
at *3 (6th Cir. Feb. 12, 2002) (unpublished opinion)
(reviewing the hearing transcript to determine whether the
judge conducted the model inquiry); Noble v. Wilkinson, No.
92-4121, 1993 WL 436850, at *1 (6th Cir. Oct. 27, 1993)
(unpublished opinion) (“When reviewing on direct appeal a
claim of error regarding a waiver of counsel, we examine the
substantive, detailed inquiry required of the district court
pursuant to United States v. McDowell”) (citation omitted);
United States v. Miller, 910 F.2d 1321, 1324 & n.3 (6th Cir.
1990) (reproducing the colloquy and holding that it
constituted an effective waiver).
Because the result in this case would be the same under
either plain error or de novo review, we have no need to
resolve the ambiguity created by the above cases. Instead, we
will proceed to examine the district court’s colloquy to
determine whether McBride made an effective waiver of his
right to counsel.
2. McBride’s waiver of counsel at trial
Before a criminal defendant may represent himself at trial,
he must knowingly and intelligently waive his right to
counsel. Faretta v. California, 422 U.S. 806, 835 (1975)
(“[H]e should be made aware of the dangers and
disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is
made with eyes open.”) (citation and quotation marks
omitted). Whenever a district court in the Sixth Circuit is
faced with an accused who wishes to represent himself, the
court must ask the defendant a series of questions drawn
from, or substantially similar to, the model inquiry set forth
in the Bench Book for United States District Judges. United
States v. McDowell, 814 F.2d 245, 250 (6th Cir. 1987); see
8 United States v. McBride No. 02-3931
also Miller, 910 F.2d at 1324 (holding that literal adherence
to the recommended battery of questions is not required).
After the questioning, the district court should make an
express finding on the record that the accused has knowingly
and voluntarily waived his right to counsel. McDowell, 814
F.2d at 250.
The model inquiry encompasses thirteen questions and one
strongly worded admonishment. In the present case, the
district court asked McBride, verbatim, twelve of the thirteen
questions, and delivered the requisite warning. The only
question that was not specifically asked was the following:
Now, in light of the penalty that you might suffer if you
are found guilty and in light of all the difficulties of
representing yourself, is it still your desire to represent
yourself and to give up your right to be represented by a
lawyer?
Id. at 252. But the court substantially complied with the
essence of this inquiry when it reviewed the maximum
penalty for each count that McBride faced, asked McBride
whether he realized the jeopardy he was in, and informed him
that he would be on his own if he chose to represent himself.
The court also advised McBride that his case was complex
and would be better handled by his standby counsel, who was
an expert at federal trial work.
After the lengthy colloquy with McBride, the district court
asked McBride whether his decision to represent himself was
“entirely voluntary” and, based upon McBride’s affirmative
response, made the following finding:
The Court finds that the defendant has knowingly and
voluntarily waived his right to counsel. The Court also
finds the defendant is competent to waive his right, as he
has demonstrated an understanding of the proceedings
and the factual allegations against him, and I will permit
you to represent yourself.

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No. 02-3931 United States v. McBride 9
Because the district court substantially adhered to the model
inquiry as prescribed by McDowell, we affirm the court’s
conclusion that McBride knowingly and voluntarily waived
his right to counsel at trial.
3. McBride’s waiver of counsel at sentencing
McBride next argues that the district court should have
obtained a second, independent waiver of his right to counsel
at the sentencing phase. The “plain error” standard of review
is appropriate for this contention because, at the start of the
sentencing proceeding, McBride could have objected to
continuing his self-representation. He in fact failed to do so.
See United States v. Modena, 302 F.3d at 630-31. “Plain
error is defined as an egregious error, one that directly leads
to a miscarriage of justice, or error that is obvious, affects
substantial rights, and seriously impairs the fairness or
integrity of the judicial proceedings.” United States v.
Camejo, 333 F.3d 669, 672 (6th Cir. 2003) (citation and
quotation marks omitted).
In an unpublished opinion, this court has held that “[t]he
elaborate waiver procedure outlined in McDowell does not
apply to waiver of counsel during sentencing. The dangers of
self-representation at trial are simply not present at
sentencing.” United States v. Napier, Nos. 88-164, 88-1693,
88-1763, 88-1765, and 88-1766, 1989 WL 100865, at *5 (6th
Cir. Sept. 1, 1989). We need not decide whether this is a
correct holding in the present case. The issue here is the
narrower one of whether a defendant’s waiver of counsel at
trial carries over to the sentencing phase. Other circuits have
held that a valid waiver remains in effect at subsequent
proceedings in the absence of an explicit revocation by the
defendant or a change of circumstances that would suggest
that the district court should make a renewed inquiry of the
defendant. See, e.g., United States v. Unger, 915 F.2d 759,
762 (1st Cir. 1990) (holding that the district court was free to
find that the defendant’s earlier waiver was still in force at the
sentencing hearing in the absence of intervening events);
10 United States v. McBride No. 02-3931
United States v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989)
(“Once the defendant has knowingly and intelligently waived
his right to counsel, only a substantial change in
circumstances will require the district court to inquire whether
the defendant wishes to revoke his earlier waiver.”); Arnold
v. United States, 414 F.2d 1056, 1059 (9th Cir. 1969)
(holding that, after a competent waiver of the right to counsel,
a new waiver need not be obtained at every subsequent court
appearance of the defendant); Davis v. United States, 226
F.2d 834, 840 (8th Cir. 1955) (same).
This court has held, in a somewhat analogous situation, that
where a magistrate judge has engaged in the McDowell
colloquy with the defendant and found an effective waiver,
the district judge is under no obligation to repeat the inquiry
at trial in the absence of any indication from the defendant
that he has had a change of heart. Modena, 302 F.3d at 631.
Both Modena and Napier lead us to adopt the rule set forth
above by our sister circuits that a defendant’s waiver of
counsel at trial carries over to subsequent proceedings absent
a substantial change in circumstances. Because we find the
rule to be a sound one, we adopt it as part of this circuit’s
jurisprudence.
McBride’s behavior at the sentencing hearing also sheds
light on the continuing validity of his waiver of counsel. See
United States v. Gangler, No. 95-2406, 1997 WL 618783, at
*2 (6th Cir. Oct. 6, 1997) (unpublished opinion) (holding that
“waiver can be inferred from a defendant’s actions”) (citation
omitted). At sentencing, the district court first asked
McBride’s standby counsel if he believed that McBride
understood the Presentence Report. After receiving an
affirmative response, the court asked for any objections to the
report, resulting in the following exchange:
THE COURT: Mr. McBride, do you wish to have
[standby counsel] say anything on your
behalf?

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No. 02-3931 United States v. McBride 11
MCBRIDE: May I speak on my own behalf?
THE COURT: You may speak on your own behalf, but
please answer the question I asked you. I
just asked you, do you wish to have
[standby counsel] speak?
MCBRIDE: I only wish to speak on my own behalf.
THE COURT: Okay. So, the answer is no? You may
speak on your own behalf.
McBride’s conduct at sentencing demonstrates that he did
not wish to revoke his previous waiver of counsel. He
refused to let his standby counsel speak on his behalf to voice
any objections to the Presentence Report. Because nothing
occurred between trial and sentencing that would have
prompted the district court to make a more thorough inquiry
of McBride’s wish to continue to represent himself, we reject
McBride’s claim that his waiver of counsel at trial was not in
force at the sentencing hearing.
B. The district court had no duty to assist McBride in
the conduct of his own defense
McBride also argues that the district court should have
informed him that he had a right to bring a Rule 29 motion for
a judgment of acquittal either at the close of the government’s
evidence or after the close of all the evidence. Fed. R. Crim.
Proc. 29. The Supreme Court, however, has made clear that
“[a] defendant does not have a constitutional right to receive
personal instruction from the trial judge on courtroom
procedure.” McKaskle v. Wiggins, 465 U.S. 168, 183 (1984).
“Nor does the Constitution require judges to take over chores
for a pro se defendant that would normally be attended to by
trained counsel as a matter of course.” Id.
12 United States v. McBride No. 02-3931
In the present case, the district court explicitly told
McBride that it would be unable to assist him in the conduct
of the trial:
THE COURT: I cannot tell you how to try your case. I
can keep everyone, including the
prosecutor under a certain amount of
control, but I can’t tell you what to do or
when to do it.
MCBRIDE: Right.
THE COURT: And I can’t question witnesses for you or
cross-examine them or give you a word of
advice. The Court desires to be and is,
neutral in this and in every other case.
MCBRIDE: I understand.
THE COURT: I will not provide you with personal
instruction on courtroom procedure or
perform any legal duties that counsel
would normally carry out.
The court then inquired whether McBride was familiar with
both the Federal Rules of Evidence and the Federal Rules of
Criminal Procedure, to which McBride answered in the
affirmative. Under these circumstances, we find McBride’s
contention that the district court had a duty to suggest that he
make a Rule 29 motion to be without merit.
C. Sufficient evidence supports McBride’s conviction on
Counts 2-5, but not on Count 1
McBride next argues that the evidence was insufficient to
sustain the jury’s guilty verdict on the five counts that he
contests. In order to appeal a jury’s verdict on the basis of
insufficient evidence, the defendant must have moved for
acquittal in the district court pursuant to Rule 29. United
States v. Charles, 138 F.3d 257, 265 (6th Cir. 1998).

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No. 02-3931 United States v. McBride 13
McBride made no such motion. Because of this failure, the
evidence against McBride is reviewed under a “manifest
miscarriage of justice” standard and “we only reverse a
conviction if the record is devoid of evidence pointing to
guilt.” United States v. Carnes, 309 F.3d 950, 956 (6th Cir.
2002) (citation and quotation marks omitted).
In McBride’s brief, he appears at first glance to question the
sufficiency of the evidence only for Counts 3-5. But
embedded in his discussion of his waiver of the right to
counsel is a challenge to the sufficiency of the evidence for
his conviction on Counts 1 and 2 as well. McBride concedes
that there was sufficient evidence to convict him on Count 6.
We will therefore address below the sufficiency of the
evidence for Counts 1-5 solely to determine if the record is so
devoid of evidence pointing to guilt as to constitute a
miscarriage of justice. Carnes, 309 F.3d at 956.
1. Count 1: false claim against the government
The jury found McBride guilty of presenting a false claim
against the government, in violation of 18 U.S.C. § 287,
because he sent a governmental agency, the IRS, a bad check
to cover the outstanding tax liability of Kefalos. Section 287
provides in pertinent part as follows:
Whoever makes or presents to any . . . department or
agency . . . any claim upon or against the United States,
or any department or agency thereof, knowing such claim
to be false, fictitious, or fraudulent, shall be imprisoned
not more than five years and shall be subject to a fine
. . . .
The word “claim” is not defined in the statute. Typical § 287
cases in this circuit have involved the filing of a false tax
return seeking an unjustified tax refund, see, e.g., United
States v. Nash, 175 F.3d 429 (6th Cir. 1999), or the filing of
a fraudulent claim for Medicare reimbursement for services
that were never rendered, see, e.g., United States v. Campbell,
14 United States v. McBride No. 02-3931
845 F.2d 1374 (6th Cir. 1988). In both of these situations the
defendant is using fraudulent means to secure an unjustified
monetary payment from the government. McBride, on the
other hand, convincingly argues that he cannot fall within the
ambit of this statutory provision because, by sending the IRS
a bad check for Kefalos’s outstanding tax obligation, he could
not possibly have obtained any money, property, credit, or
reimbursement from the government in return.
The government devotes only three sentences to McBride’s
contention in its brief. Its position is essentially that “the
presentation of the claim, in this case the bad check, with the
knowledge that it is false, . . . comprises the offense.” But no
authority was cited to support its contention, and we have
found none. One of the citations that the government did
provide on this issue actually confirms the plain-meaning
understanding of § 287, which does not cover McBride’s
conduct. See United States v. Miller, 545 F.2d 1204, 1212
n.10 (9th Cir. 1976) (observing that the filing of a false tax
return pursuant to a scheme to obtain an unjustified tax refund
constitutes a false claim under § 287) (citation omitted).
Another case relied upon by the government is United
States v. Jackson, 845 F.2d 880 (9th Cir. 1988), cited for the
proposition that § 287 covers situations where the defendant
seeks a “reduction in liability from the government.” Id. at
882. The facts in Jackson, however, do not support the
government’s position in the case before us. In Jackson, the
defendant received and cashed nine educational benefits
checks from the Veterans Administration (VA) for which he
was later found ineligible. Id. at 881. With the knowledge
that he was both ineligible for the benefits and that he had
already deposited the checks, Jackson submitted a claim form
to the VA stating he had never received the checks and
requesting that they be reissued to him. Id.
In analyzing the meaning of a false “claim,” the Jackson
court stated that the “focus must be on the substance of the
transaction, the disbursement of government funds, and not on

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No. 02-3931 United States v. McBride 15
the timing or form of the entry in the government’s
accounting ledgers.” Id. at 882 (emphasis added). The court
held that Jackson’s conduct fell within the ambit of § 287
because, by denying that he had received the first set of
checks, Jackson sought to avoid reimbursing the government.
Id.; see also United States v. Duncan, 816 F.2d 153, 155 (4th
Cir. 1987) (holding that submitting a false travel voucher to
obtain credit for previously advanced government funds
constitutes a false claim because the government is at risk of
suffering a monetary loss).
Jackson is easily distinguishable from the present case.
The defendant in Jackson did two things that involved the
disbursement of government funds. He first sought to reduce
his liability to the government in the sense that he attempted
to avoid refunding to the government the VA payments that
he had received but to which he was not entitled. Second, he
made a false claim upon the government by requesting that
these checks be reissued to him. Nothing McBride did, on the
other hand, involved the disbursement of government funds.
He neither received any undue payments from the
government nor tried to induce the government to send him
duplicate payments. McBride simply sent the IRS a bad
check in purported payment of his girlfriend’s tax liability.
The closest case that we have found to the one before us is
United States v. Morgan, 3 Fed. Appx. 633, 2001 WL 123838
(9th Cir. Feb. 12, 2001) (unpublished opinion). In Morgan,
the Ninth Circuit affirmed the defendant’s conviction under
§ 287 where she “sought both to pay her tax liability and to
obtain a refund based on lien drafts that she knew to be
false. . . .” Id. at 635. We surmise, based on the only other
federal case to use the term “lien draft,” United States v.
Rudd, No. 98-30218, 1999 WL 98618 (9th Cir. Feb. 17, 1999)
(unpublished opinion), which also originates from the United
States District Court in Idaho, that these documents were
fictitious comptroller warrants distributed by Leroy
Schweitzer, a ringleader of the Freemen of Montana who
assisted others in tax evasion. See United States v. Finley,
16 United States v. McBride No. 02-3931
301 F.3d 1000, 1002-3 (9th Cir. 2002) (describing
Schweitzer’s seminars on the use of fraudulent financial
instruments with which to “satisfy” outstanding tax liability
and seek unjustified refunds from the IRS); United States v.
Wells, 163 F.3d 889, 893 (4th Cir. 1998) (same). In the
absence of additional information, we will assume for the
purposes of analyzing Morgan that the false lien drafts were
the equivalent of a bad check.
The key factor that distinguishes Morgan from McBride’s
case is that the defendant in Morgan sought an unjustified
payment from the government—a tax refund. McBride, on
the other hand, did not attempt to elicit a payment from the
IRS when he sent it a bad check; he was at most, according to
his brief, trying to harass the IRS and its agent.
The Morgan court considered the defendant’s false lien
draft as a “claim” because “the government would suffer a
monetary loss if she were successful.” 3 Fed. Appx. at 635.
Morgan’s concern with the potential loss to the government
indicates that the real focus of the court was on the unjustified
refund sought by the defendant, because the government’s
financial position does not change when a proposed payment
for taxes owed is returned for insufficient funds; the tax
liability remains outstanding both before and after the bad
check or false lien draft is tendered.
The unpublished Morgan opinion has little independent
reasoning, relying on Jackson for the proposition that a
“‘claim’ includes seeking a reduction in liability to the
government.” Id. This phrase—“seeking a reduction in
liability to the government”—is taken out of context. As we
have already pointed out, the defendant in Jackson had
received prior VA payments from the government for which
he was ineligible and for which he was seeking replacement
checks. There is a significant difference between filing a
form to deceive the government about funds that have been
advanced and to which one is not entitled, as occurred in
Jackson, and simply sending a bad check to purportedly

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No. 02-3931 United States v. McBride 17
“cover” a person’s tax liability. Similarly, there is a big
difference between McBride’s conduct, which had no
potential for causing any payment to emanate from the
government, and the Morgan lien drafts whose very purpose
was to obtain an unjustified tax refund. Because the
reasoning of Morgan is unpersuasive and not even a
permissible citation in its own circuit, see U.S. Ct. of App.
9th Cir. Rule 36-3, we decline to apply it to the present case.
Our decision on this issue would have been greatly
simplified if § 287 had defined the word “claim,” but it does
not. “When the text of a statute contains an undefined term,
that term receives its ordinary and natural meaning.” The
Limited, Inc. v. Comm’r of Internal Revenue, 286 F.3d 324,
332 (6th Cir. 2002). The leading law dictionary defines a
“claim” as a “[d]emand for money or property as of right.”
BLACK’S LAW DICTIONARY 247 (6th ed. 1990). Even more
on point, the False Claims Act, 31 U.S.C. §§ 3729-3733, the
civil counterpart to § 287, defines a “claim” as
any request or demand, whether under a contract or
otherwise, for money or property which is made to a
contractor, grantee, or other recipient if the United States
Government provides any portion of the money or
property which is requested or demanded, or if the
Government will reimburse such contractor, grantee, or
other recipient for any portion of the money or property
which is requested or demanded.
31 U.S.C. § 3729(c) (emphasis added).
Both definitions reaffirm the prevailing understanding in
this circuit that a “false claim” for the purposes of § 287 is an
unjustified demand for money or property from the
government. See United States v. Logan, 250 F.3d 350, 357-
59 (6th Cir. 2001) (affirming a §287 conviction for filing
forms to induce the government to pay on false HUD/FHA
loan insurance claims); Nash, 175 F.3d at 436-37 (affirming
a § 287 conviction for filing fictitious tax returns to obtain
18 United States v. McBride No. 02-3931
unjustified refunds); United States v. Hebeka, 25 F.3d 287,
289, 292 (6th Cir. 1994) (affirming a § 287 conviction for
making an unjustified request to the government for
redemption of $7.2 million worth of food stamps); Campbell,
845 F.2d at 1381-83 (affirming a § 287 conviction for billing
the government’s Medicare program for unperformed medical
services). Because “any ambiguity in criminal statutes [is]
resolved against the government and in favor of the criminal
defendant,” United States v. Jolivette, 257 F.3d 581, 584 (6th
Cir. 2001), we are loath to adopt a meaning of “false claim”
that is contrary to both the plain meaning of the term and our
circuit’s precedent.
After scouring the federal case law, we can find no case
holding that the sending of an insufficient-funds check to the
IRS constitutes a false claim under § 287. We decline, for all
the reasons set forth above, to be the first court to do so.
Because McBride never received any advance payments from
the government to which he was not entitled, nor could his
action of sending the IRS a bad check have possibly elicited
any payment from the government, he cannot, as a matter of
law, be found liable under § 287. We therefore reverse
McBride’s conviction on Count 1.
2. Count 2: impeding the administration of justice
The jury convicted McBride of corruptly endeavoring to
influence, intimidate, or impede the administration of justice,
in violation of 18 U.S.C. § 1503. To sustain a conviction
under this section, the government must prove that McBride
acted with the intent to influence, in the sense of interfering
with, judicial proceedings. United States v. Atkin, 107 F.3d
1213, 1218 (6th Cir. 1997). A defendant must “undertake
action from which an obstruction of justice was a reasonably
foreseeable result,” but he need not be successful in his
endeavor. Id. (quotation marks omitted).
In United States v. Fleming, 215 F.3d 930, 933-38 (9th Cir.
2000), the Ninth Circuit affirmed the conviction of a

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No. 02-3931 United States v. McBride 19
defendant who attempted to file a $10 million dollar lien on
real property owned by the judge who had dismissed the
defendant’s civil case. Although the lien was never filed, the
defendant’s conduct was considered an attempt to influence
or intimidate the judge, in violation of § 1503. Similar
circumstances are presented here. McBride filed a fraudulent
involuntary bankruptcy petition against Judge Marbley, the
district judge presiding over Kefalos’s trial, in the period
between her conviction and sentencing. He admitted at his
trial that he filed the petition in response to what he perceived
as “injustices” in the Kefalos trial. A reasonable jury could
find that McBride acted with the intent to intimidate Judge
Marbley as the latter prepared to sentence Kefalos, even
though McBride was unlikely to be successful. We see no
miscarriage of justice in affirming McBride’s conviction on
Count 2.
3. Count 3: impeding the administration of the IRS
McBride was convicted of corruptly endeavoring to
obstruct or impede the administration of the internal revenue
laws, in violation of 26 U.S.C. § 7212(a). “[T]o act corruptly
means to act with the intent to secure an unlawful benefit
either for oneself or another.” United States v. Winchell, 129
F.3d 1093, 1098 (10th Cir. 1997) (collecting cases). The
defendant must also be acting in response to “some pending
IRS action of which [he is] aware.” United States v. Kassouf,
144 F.3d 952, 957 (6th Cir. 1998).
McBride filed a fraudulent petition to place Nypaver, the
IRS revenue agent assigned to Kefalos’s case, into
involuntary bankruptcy. Although Kefalos had already been
convicted of tax evasion when McBride filed the petition, the
IRS still had a pending claim against Kefalos of which
McBride was aware. A reasonable jury could find that
McBride’s filing of a false petition against Nypaver was
intended to intimidate Nypaver or otherwise interfere with the
revenue agent’s efforts to collect the unpaid taxes from
Kefalos. See, e.g., United States v. Rosnow, 977 F.2d 399,
20 United States v. McBride No. 02-3931
410 (8th Cir. 1992) (holding that the filing of a false federal
tort claim against an IRS agent was sufficient evidence to
allow a jury to conclude that the defendant intended to
impede the administration of the internal revenue laws under
26 U.S.C. § 7212(a)); United States v. Reeves, 752 F.2d 995,
1001-02 (5th Cir. 1985) (holding that the defendant’s filing of
frivolous common law liens against an IRS agent constituted
a prohibited corrupt endeavor under 26 U.S.C. § 7212(a)).
We see no miscarriage of justice in affirming the jury’s
verdict on Count 3.
4. Counts 4 and 5: bankruptcy fraud
The jury convicted McBride of devising or intending to
devise a scheme to defraud Kefalos’s two defense attorneys,
Axelrod and Sherman, in violation of 18 U.S.C. § 157.
Section 157 “contains three elements: 1) the existence of a
scheme to defraud or intent to later formulate a scheme to
defraud and 2) the filing of a bankruptcy petition 3) for the
purpose of executing or attempting to execute the scheme.”
United States v. DeSantis, 237 F.3d 607, 613 (6th Cir. 2001).
Filing the petition “itself is the forbidden act. . . . Success of
the scheme is not an element of the crime.” Id.
McBride does not dispute that he filed false involuntary
bankruptcy petitions against Axelrod and Sherman. Attached
to the petitions were official acknowledgments from the
Franklin County Treasurer’s Office showing that McBride
had purportedly paid the real estate taxes on Axelrod’s and
Sherman’s residences for the first half of 2001, thus making
McBride one of their creditors. A reasonable jury could find
that McBride’s actions evidenced an intent to defraud them of
their property. “The statute makes the crime complete upon
the filing of the bankruptcy petition” as long as the scheme or
intent to formulate the scheme exists. Id. (emphasis in
original). Under the circumstances of this case, we see no
miscarriage of justice in affirming McBride’s conviction on
Counts 4 and 5.

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No. 02-3931 United States v. McBride 21
D. McBride’s sentence
Embedded in McBride’s claim that he did not waive his
right to counsel at sentencing is a separate complaint about
the district court’s calculation of loss to the victims. But
McBride made no objection to the Presentence Report’s
calculation of loss at his sentencing hearing. “[A]bsent plain
error, this Court will not address claims of alleged
misapplication of the [sentencing] guidelines unless the
defendant first raised the claim before the district court.”
United States v. Thomas, 24 F.3d 829, 832 (6th Cir. 1994).
U.S. Sentencing Guidelines § 2B1.1, which addresses
offenses involving fraud and deceit, establishes the sentencing
range for Counts 1, 4, 5, and 6. By operation of the rules for
aggregating multiple counts, the offense level for the latter
counts also determines the sentencing range for Counts 2 and
3. U.S. Sentencing Guidelines Manual ch. 3, pt. D (2003). A
decision to vacate McBride’s sentence for Counts 1, 4, 5, and
6 would therefore require remand and resentencing on all of
the counts.
Determination of the offense level under § 2B1.1 depends
on the amount of loss caused or intended by the defendant.
The Application Note to this section provides as follows:
“Intended loss” (I) means the pecuniary harm that was
intended to result from the offense; and (II) includes
intended pecuniary harm that would have been
impossible or unlikely to occur (e.g., as in a government
sting operation, or an insurance fraud in which the claim
exceeded the insured value).
U.S. Sentencing Guidelines Manual § 2B1.1, cmt. n. 3 (2003).
In the Presentence Report, the probation officer estimated the
total intended loss at $1,139,760.67, which represented the
sum of the bad checks written by McBride to the IRS
($12,990.67) and to the bankruptcy court ($800), plus the
total market value of the residences of Judge Marbley,
22 United States v. McBride No. 02-3931
attorneys Sherman and Axelrod, and agent Nypaver
($1,125,970). The market value of these individuals’
residences was included because had McBride been
successful in forcing his victims into involuntary bankruptcy,
he could have obtained a creditor’s interest in their property.
Even though McBride would never have succeeded in
obtaining possession of his victims’ residences, the district
court nonetheless felt obliged to use the residences’ value
because intended loss is defined as including “harm that
would have been impossible or unlikely to occur.” The U.S.
Sentencing Guidelines provide that where the cumulative loss
exceeds $1 million, the court should increase the base offense
level of 6 by 16 levels.
Because it was highly improbable that McBride intended,
or would have been able, to obtain ownership of these
residences, the district court was troubled by the inclusion of
the full value of each victim’s home in the loss calculation.
But the district court concluded that Amendment 617 to the
U.S. Sentencing Guidelines, which clarified that “intended
loss” included unlikely or impossible losses, effectively
overruled the Sixth Circuit’s practice of vacating sentences
where “the total intended loss bore no relation to ‘economic
reality,’ . . . because . . . the plan had no chance of success.”
United States v. Fleming, 128 F.3d 285, 288 (6th Cir. 1997)
(collecting cases); see also United States v. Watkins, 994 F.2d
1192, 1196 (6th Cir. 1993) (holding that a defendant “may not
be sentenced on the basis of harm that he or she was
incapable of inflicting”).
The district court nonetheless decided that there were many
variables that can affect a residence’s market value and, “out
of an abundance of caution,” sua sponte reduced the
probation officer’s loss figure by 15 percent. This reduced
the total loss that McBride intended to inflict to $970,865.17.
McBride’s base offense level was thus increased by 14, rather
than 16, levels.

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No. 02-3931 United States v. McBride 23
On appeal, McBride argues for the first time that the district
court misapplied § 2B1.1. He contends that he did not
actually intend to acquire his victims’ homes, but rather only
intended to harass the individuals. McBride correctly notes
that pecuniary harm does not include emotional distress. U.S.
Sentencing Guidelines Manual § 2B1.1., cmt. n.3. He
therefore contends that the intended loss was at most only
$800, which is the sum of the four filing fees paid with bad
checks to the bankruptcy court.
The district court properly recognized that Amendment 617
resolved a circuit split regarding the meaning of “intended
loss” by clarifying that the definition reached “unlikely or
impossible losses . . . because their inclusion better reflects
the culpability of the offender.” U.S. Sentencing Guidelines
Manual app. C. at 181 (2003). We have previously
acknowledged that “the amendments abandon this circuit’s
interpretation of intended loss . . . .” United States v.
Anderson, 353 F.3d 490, 505 n.13 (6th Cir. 2003). On the
other hand, there is surely some point at which a perpetrator’s
misperception of the facts may become so irrational that the
words “intended loss” can no longer reasonably apply. For
instance, if someone vandalized a federal building by spray
painting an incantation that all government gold shall
disappear, the “intended loss” would presumably not be the
value of all the gold in Fort Knox, even if the vandal
genuinely believed that all the gold would disappear.
McBride’s actions in the case before us, however, do not
rise to that level of irrationality. The probation officer’s
calculation of intended loss thus appropriately included the
total market value of the residences of McBride’s victims,
despite the fact that McBride could never have caused them
to lose their homes. But that is not the end of the matter.
Application Note 18(C) to § 2B1.1 provides: “There may
be cases in which the offense level determined under this
guideline substantially overstates the seriousness of the
offense. In such cases, a downward departure may be
24 United States v. McBride No. 02-3931
warranted.” The Sentencing Commission has provided no
further guidance regarding the application of this downward
departure. We agree, however, with the observation by one
district court that “[b]ecause the loss determination essentially
dictates the severity of the sentence, it is this determination
that will almost always be the subject of departure scrutiny.”
United States v. Roen, 279 F. Supp. 2d 986, 990 (E.D. Wisc.
2003).
The Roen court described four scenarios in which a loss
determination may significantly overstate the severity of the
offense. Id. at 990-91 Only one concerns us here. Where
sentencing is based largely or solely on intended loss, a
downward departure may be warranted under the “economic
reality” principle. Id. at 991; see also United States v.
Stockheimer, 157 F.3d 1082, 1089 (7th Cir. 1998) (same).
The underlying theory behind this principle is that “where a
defendant devises an ambitious scheme obviously doomed to
fail and which causes little or no actual loss, it may be unfair
to sentence based on the intended (but highly improbable)
loss determination from the [§ 2B1.1] table.” United States
v. Forchette, 220 F. Supp. 2d 914, 924-25 (E.D. Wisc. 2002).
A court should therefore consider “whether there was any
reasonable possibility that the scheme could have caused the
loss the defendant intended.” Roen, 279 F. Supp. 2d at 991.
This is so because the Sentencing Commission is using
intended loss as a proxy for the defendant’s degree of
culpability. U.S. Sentencing Guidelines § 2B1.1 cmt.
background (stating that “loss serves as a measure of . . . the
defendant’s relative culpability”). The Roen court
persuasively pointed out that
[t]hose who devise ridiculous schemes (1) do not
ordinarily have the same mental state and (2) do not
create the same risk of harm as those who devise cunning
schemes. In short, they are not as dangerous. Thus, it is
entirely proper to mitigate their sentences by a departure.

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No. 02-3931 United States v. McBride 25
Roen, 279 F. Supp. 2d at 991.
In Roen, the defendant had a life insurance policy valued at
approximately $9,700. He induced the insurance company to
issue him loans against the policy, which he “repaid” by
writing checks drawn on a closed account. Defendant’s
scheme cost the insurance company approximately $19,000.
Id. at 986. But the defendant wrote other bad checks, to the
tune of $1.2 million, for various high-priced items. None of
the recipients of the checks provided defendant with any
goods or services. Id. at 987. According to the Presentence
Report, the total loss was approximately $1.26 million—the
sum of the actual loss to the insurance company and the
intended loss based on the other bad checks. Id. For losses
over $1 million, § 2B1.1 dictates a 16-level enhancement to
the base offense level of 6. Roen’s total offense level was
thus placed at 22 in the Presentence Report. Id. at 987.
Because Roen’s scheme was not so improbable as to defeat
a finding of intent, the court in Roen accepted Offense Level
22 as the starting point for sentencing. Id. at 989. But the
court determined that a downward departure was necessary
because there was no reasonable possibility that Roen’s
scheme could have caused over a million dollars in losses. Id.
at 992.
The Roen court also discussed a second measure of the
economic reality of the intended harm: “the variance between
the intended loss and the realistic possibility of such a loss.”
Id. at 991 (citing Stockheimer,157 F.3d at 1091). “Of course,
the best evidence of a scheme’s probable success is its actual
success.” Roen, 279 F. Supp. 2d at 991. In Roen, the court
held that “the discrepancy between the actual
loss—$19,000—and the intended loss—over $1.2 million—
was extreme.” Id. at 992. Because of this disparity, the court
concluded that a downward departure was warranted. Id.; see
also Stockheimer, 157 F.3d at 1090-92 (holding that where it
was highly unlikely that the intended loss would have reached
26 United States v. McBride No. 02-3931
$80 million and the actual loss was only $200,000, a
downward departure was warranted).
The quixotic nature of McBride’s activities had far less
chance of success than the defendant’s scheme in Roen.
Conceivably, in Roen, a vendor could have provided the
defendant with goods or services before realizing that the
check was drawn on a closed account, thereby triggering
actual losses. In McBride’s case, it defies common sense to
believe that McBride would have succeeded in forcing Judge
Marbley, attorneys Axelrod and Sherman, and agent Nypaver
into involuntary bankruptcy and thereby obtained possession
of their residences.
The disparity between the presumed actual loss of $800 (as
measured by the bad checks actually deposited by the
bankruptcy court in payment of filing fees) and the intended
loss of $1,139,760.67 is also far greater in McBride’s case—a
ratio of 1:1425— than the disparity in Roen (1:67) and
Stockheimer (1:400). We conclude that the impossibility that
McBride’s scheme would succeed and the gross disparity
between the actual loss and the intended loss demonstrate that
there is a significant risk that “the offense level determined
under this guideline substantially overstates the seriousness
of the offense. . . [and] a downward departure may be
warranted.” U.S. Sentencing Guidelines Manual § 2B1.1,
cmt. 18(C); see also United States v. Coffman, 94 F.3d 330,
336-337 (7th Cir. 1996) (applying the economic reality
principle in considering a downward departure under §2B1.1).
Despite our conclusion on the merits of this issue, we
recognize the general rule that “a court’s failure to . . . grant
a downward departure is not reviewable.” United States v.
Coleman, 188 F.3d 354, 357 (6th Cir. 1999) (en banc). We
will review a failure to depart, however, “if the district court
judge incorrectly believed that he lacked any authority to
consider defendant’s mitigating circumstances as well as the
discretion to deviate from the guidelines.” Id. (citation
omitted). In such circumstances, we will vacate the

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No. 02-3931 United States v. McBride 27
defendant’s sentence and remand for reconsideration. United
States v. Truman, 304 F.3d 586, 589 (6th Cir. 2002).
To determine whether the district judge believed that there
was no authority to depart, we review the sentencing hearing
transcript. United States v. Ebolum, 72 F.3d 35, 37 (6th Cir.
1995). Omission from the Presentence Report of any
discussion concerning an applicable downward departure may
also suggest that the court was not aware of its ability to
depart. United States v. Hall, 71 F.3d 569, 573 (6th Cir.
1995) (holding that the failure of the Presentence Report and
the district court to consider the applicability of a particular
downward-departure provision, given defendant’s
circumstances, indicated that the court was not aware of its
discretion to depart).
We typically invoke the above standards when a defendant
has made a motion for a downward departure that was
rejected by the district court. Here, McBride neither objected
to the Presentence Report nor made a motion for a downward
departure. The court’s failure to consider sua sponte a
downward departure must therefore rise to the level of plain
error before we will consider granting any relief to McBride.
An examination of the sentencing transcript indicates that
the district court was predisposed to reducing McBride’s
offense level. The court “question[ed] the appropriateness of
including the value of each victim’s home in the loss
calculation,” recognizing that it did not fit with longstanding
Sixth Circuit practice to “limit[] intended loss to harms the
defendant was actually capable of inflicting.” But the court
assented to the use of the value of the victims’ homes because
Sentencing Guidelines “Amendment [617] resolved . . . the
application of the economic reality test, and in effect,
prohibited the use of this doctrine under the Sentencing
Guidelines.” (Emphasis added.) Although Amendment 617
did bar the court from applying the economic reality principle
when calculating “intended loss,” there is no basis for the
district court’s conclusion that the test was categorically
28 United States v. McBride No. 02-3931
prohibited under the Sentencing Guidelines. The implication
is that the court was unaware that it could apply the economic
reality principle in considering a downward departure.
There is additional evidence to suggest that the district
court wanted to depart but did not recognize that it could do
so. First, the court found another way to decrease McBride’s
offense level when it reduced the intended loss figure by 15
percent because “too many variables exist in determining the
fair market value of the victims’ homes to use the probation
officer’s calculations.” The court thus did depart, albeit in a
nontraditional manner. Second, the Presentence Report
contains no discussion of the circumstances in McBride’s
case that might have warranted a downward departure. The
probation officer in fact recommended enhancing McBride’s
offense level for misrepresentation during a bankruptcy
proceeding and obstruction of justice. Both of these
recommendations were rejected by the district court.
The sentencing proceedings strongly suggest that the
district court was disposed to depart downward from the
initial offense level but, because it erroneously believed that
the economic reality principle was completely discredited, it
did not invoke the principle in considering a downward
departure. We are mindful, however, that we are reviewing
McBride’s sentence under the plain error standard because he
failed to object to the Presentence Report and failed to make
a motion for a downward departure.
Both the D.C. and Seventh Circuits have held that plain
error may be shown where a defendant fails to make the
appropriate objections or motions and the record indicates
that the district court erroneously believed that it lacked the
authority to depart on a particular ground. See United States
v. Draffin, 286 F.3d 606, 610 (D.C. Cir. 2002) (concluding
that plain error may lie, notwithstanding defendant’s silence,
where the sentencing court makes plain that it is choosing not
to depart on a particular ground because of the mistaken
belief that it lacks the authority to do so); United States v.

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No. 02-3931 United States v. McBride 29
Stockheimer, 157 F.3d 1082, 1091 (7th Cir. 1998) (holding
that even where defendants fail to make a motion for a
downward departure, plain error may be shown where “the
district court has both a substantive basis and an inclination
to consider a downward departure”).
Stockheimer is of particular relevance because, like
McBride, the defendants in that case were sentenced under
§ 2B1.1 and the estimated intended loss significantly
overstated the seriousness of the actual fraud committed. 153
F.3d at 1089-90. Because the defendants failed to make a
motion for a downward departure, the Seventh Circuit applied
plain error review to this issue. Id. at 1091.
Reviewing the sentencing hearing transcript, the
Stockheimer court concluded that the district court
erroneously decided that circuit precedent barring
consideration of economic reality when calculating intended
loss also barred the principle from being taken into account in
considering a downward departure. Id. at 1090. This was
held to be an error of law. The Seventh Circuit reaffirmed
that “the place for mitigation on the basis of a large
discrepancy between intended and probable loss is, under the
guidelines, in the decision whether to depart downward,
rather than in the calculation of the intended loss.” Id. at
1091 (citation omitted).
We agree with our sister circuit that this court should “not
blithely recognize plain error in a sentencing court’s decision
not to depart downward.” Id. But, as in Stockheimer, the
district court below erred in believing that it could not apply
the economic reality principle at all, when in fact it remains
a valid basis for a downward departure. We therefore adopt
the Seventh Circuit’s conclusion that the plain error standard
is met here because
the record suggests that the district court had a legal basis
and some predilection to depart downward, [so] the error
affected [McBride’s] substantial rights. . . . [B]ecause of
30 United States v. McBride No. 02-3931
the apparently unprecedented magnitude of the
discrepancy between the actual and intended loss, we
conclude that the error seriously affected the fairness of
[McBride’s] sentencing proceedings.
Id. at 1092. We therefore vacate McBride’s sentence and
remand to the district court for resentencing.
As a final caveat, we note that even though our opinion
“reflect[s] a strong conviction that on the basis of the record,
consideration of a downward departure is appropriate, the
actual decision is entirely in the hands of the district court.”
Id. The district court has already reduced McBride’s offense
level by somewhat arbitrarily deflating the intended loss
figure. Our point is that this adjustment—and any other
appropriate adjustment—should be made through the
downward departure mechanism.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM
McBride’s conviction on Counts 2-6, REVERSE his
conviction on Count 1, VACATE his sentence, and
REMAND for resentencing consistent with this opinion.

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