United States of America v. Daniel Tepoel

* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 11, 2009 *
Decided March 24, 2009
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2477
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DANIEL TEPOEL,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 07‐CR‐66‐bbc‐01
Barbara B. Crabb,
Chief Judge.
O R D E R
Daniel TePoel defrauded investors of over $2.5 million by telling them he would
invest their money in high‐yield, low‐risk bank instruments, when in fact he was spending
the money on personal expenses and a failed real‐estate venture. A federal jury found
TePoel guilty of four counts of mail fraud, see 18 U.S.C. § 1341, two counts of wire fraud, see
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐2477 Page 2
id. § 1343, one count of conspiracy to commit mail and wire fraud, see id. §§ 1349, 1341, 1343,
and one count of making false statements to an FBI agent, see id. § 1001. The district court
sentenced TePoel to a total of 136 months’ imprisonment, which was in the middle of the
guidelines range. We have allowed TePoel to pursue his appeal pro se, and we affirm the
district court’s judgment.
TePoel does not argue that the government’s evidence was insufficient to convict
him or that his sentence is unreasonable. Instead, he contends that along the way the
district court made a slew of erroneous rulings. First, he takes issue with the court’s denial
of two motions to dismiss the indictment, where he argued that dismissal was appropriate
because the government would not identify the names of the grand jurors who voted to
indict him so that he could challenge their qualifications, and that he was the victim of
selective prosecution. We will overturn a district court’s refusal to dismiss an indictment
only if the court abused its discretion. United States v. Darif, 446 F.3d 701, 708 (7th Cir. 2006).
Given that a jury found TePoel guilty beyond a reasonable doubt, it is hard to see
how errors in the grand‐jury process could matter. See United States v. Mechanik, 475 U.S. 66,
70‐72 (1986); see also Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (holding that
errors or defects in grand‐jury procedures can result in dismissal of an indictment only if
they are prejudicial). Nonetheless, TePoel was not entitled to the names or voting records of
the grand jurors. Although criminal defendants generally may inspect grand‐jury selection
records under the Jury Selection and Service Act, 28 U.S.C. §§ 1861‐78, they are not normally
entitled to know the names or votes of the individual grand jurors who indicted them. See
United States v. Deffenbaugh Indus., Inc., 957 F.2d 749, 755‐57 (10th Cir. 1992); United States v.
McLernon, 746 F.2d 1098, 1122‐23 (6th Cir. 1984). The strong interest in secrecy accorded the
grand‐jury process can be overcome only if the defendant demonstrates with particularity
that grounds might exist for a motion to dismiss based on materials concerning the grand
jury. FED. R. CRIM . P. 6(e)(3)(E)(ii); see United States v. Sells Engʹg, Inc., 463 U.S. 418, 443
(1983); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959); United States v.
Hansel, 70 F.3d 6, 8 (2d Cir. 1995); In re Grand Jury 89‐4‐72, 932 F.2d 481, 489 (6th Cir. 1991);
United States v. Lang, 644 F.2d 1232, 1238‐39 (7th Cir. 1981); State of Wisconsin v. Schaffer, 565
F.2d 961, 965 (7th Cir. 1977). TePoel contends that he wanted this information out of a
general concern that the grand jurors who indicted him might not be qualified, but this
vague grounds for disclosure does not even come close to making the necessary
particularized showing. See Hansel, 70 F.3d at 8; Lang, 644 F.2d at 1238‐39.
Next, TePoel argues that he was selectively prosecuted because of an “abuse of the
grand jury process.” A selective‐prosecution challenge can be successful only if the
defendant establishes that the decision to prosecute him was made on the basis of an

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No. 08‐2477 Page 3
invidious ground such as race, religion, or the exercise of constitutional rights. See United
States v. Moore, 543 F.3d 891, 899‐900 (7th Cir. 2008); Darif, 446 F.3d at 708. TePoel did not
even hint that any of these factors influenced his prosecution, so his motion to dismiss on
that ground was frivolous.
TePoel also contends that he was denied his constitutional right to assistance of
counsel. Over the course of the pretrial proceedings, a magistrate judge appointed TePoel
three attorneys. The magistrate judge urged TePoel to cooperate with each of his attorneys
and advised TePoel that he was not entitled to an unlimited supply of lawyers. The
magistrate judge further warned TePoel that he would end up representing himself at trial
if he could not get along with his counsel. Nevertheless, each relationship eventually broke
down, and the magistrate judge allowed each attorney to withdraw. When the third
attorney withdrew—less than two weeks before trial, which had been continued for a year
while each successive lawyer got up to speed—the magistrate judge concluded that TePoel
had constructively waived his right to counsel and so declined to appoint another.
Nevertheless, the court later appointed a fourth attorney to act as standby counsel at trial,
where TePoel represented himself pro se. Once TePoel was convicted, he requested that the
court appoint the attorney who acted as standby counsel at trial to represent him at
sentencing. The court obliged, but later allowed that lawyer to withdraw when TePoel
became dissatisfied with her performance. TePoel once again represented himself at
sentencing.
A defendant, through his actions, can constructively waive his right to counsel. See
United States v. Oreye, 263 F.3d 669, 670 (7th Cir. 2001); United States v. Harris, 2 F.3d 1452,
1455 (7th Cir. 1993). A defendant makes a knowing and voluntary decision to forgo counsel
if his conduct after the district court has given him a lawyer has “the effect of depriving
himself of appointed counsel.” United States v. Fazzini, 871 F.2d 635, 642 (7th Cir. 1989); see
also Harris, 2 F.3d at 1454‐55. TePoel was unwilling to cooperate with any of the four
lawyers appointed for him during the course of his trial and sentencing despite the
magistrate judge’s warnings that failure to do so would compel TePoel to proceed pro se.
TePoel’s conduct in the face of the magistrate judge’s admonitions demonstrates that he
waived his right to counsel. See United States v. Irorere, 228 F.3d 816, 828 (7th Cir. 2000);
Harris, 2 F.3d at 1455.
TePoel next contends that the district court abused its discretion in denying his
recusal motion. Before sentencing, TePoel asked the judge to recuse herself, see 28 U.S.C.
§ 144, asserting that she was prejudiced against him. As evidence of this, TePoel pointed
out in an affidavit that the judge sustained most of the government’s objections during trial,
refused to let him introduce irrelevant evidence, and remanded him to jail after the guilty
verdicts. But § 144 requires the party requesting recusal to show actual bias—i.e., personal

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No. 08‐2477 Page 4
animus or malice—on the part of the judge, see Tezak v. United States, 256 F.3d 702, 718 (7th
Cir. 2001), and none of TePoel’s assertions came close to meeting this threshhold, see United
States v. Morgan, 384 F.3d 439, 444 (7th Cir. 2004) (noting that a judge’s adverse evidentiary
rulings do not establish bias); Golant v. Levy (In re Golant), 239 F.3d 931, 938 (7th Cir. 2001)
(explaining that loss on the merits or disagreement with judge’s rulings are not evidence of
bias); see also Liteky v. United States, 510 U.S. 540, 555 (1994) (noting that “judicial rulings
alone almost never constitute a valid basis” for a recusal motion). Thus, there was no
reason for the judge to recuse herself.
TePoel also argues that the district court’s application of the sentencing guidelines
violated the statute of limitations. As we understand his argument, he contends that at
sentencing the district court should not have considered some of his victims’ losses as
“relevant conduct,” see U.S.S.G. § 1B1.3, insisting that the conduct leading to these losses
occurred outside the statute of limitations and, because he could not be prosecuted for it, he
should not be punished for it. TePoel did not raise a statute‐of‐limitations objection in the
district court; thus, our review is for plain error. See United States v. Farmer, 543 F.3d 363,
372 (7th Cir. 2008); United States v. Ross, 77 F.3d 1525, 1536 (7th Cir. 1996). But this
argument is a non‐starter because there is no statute‐of‐limitations problem here. The
conspiracy lasted from 1997 until 2007, and because there was an overt act within five years
before the indictment, all of TePoel’s activities in furtherance of the criminal enterprise are
part of the conspiracy, no matter when the criminal conduct started. United States v. Useni,
516 F.3d 634, 655‐56 (7th Cir. 2008); United States v. Yashar, 166 F.3d 873, 875‐76 (7th Cir.
1999). Moreover, we already have determined that the statute of limitations does not
restrict what the district court may consider as relevant conduct during sentencing. See
United States v. Valenti, 121 F.3d 327, 334 (7th Cir. 1997); see also U.S.S.G § 1B1.3 cmt. n.1
(explaining that the “principles and limits of sentencing accountability under” the relevant‐
conduct guideline “are not always the same as the principles and limits of criminal
liability”).
Finally, we have considered TePoel’s remaining arguments and conclude that each is
either undeveloped or meritless.
AFFIRMED.

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