ON REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 01-4836

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLIAM M. BRYSON, JR.,

Defendant - Appellant.

No. 04-6010

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLIAM M. BRYSON, JR.,

Defendant - Appellant.

Appeals from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., District Judge. (CR-01-240; CR-01-712)

Submitted: October 1, 2004 Decided: November 30, 2004

Before LUTTIG, GREGORY, and SHEDD, Circuit Judges. No. 01-4836, affirmed in part, vacated and remanded in part; No. 04-6010, dismissed by unpublished per curiam opinion.

Michael A. MacKinnon, Greenville, South Carolina, for Appellant. Mark C. Moore, Assistant United States Attorney, Columbia, South Carolina; Regan Alexandra Pendleton, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

- 2 - PER CURIAM:

Following a jury trial, William M. Bryson, Jr., was

convicted of numerous charges arising out of a scheme to defraud

Ethel Swink out of money and properties. These charges include

conspiracy,

(2000), mail fraud,

(West Supp. 2004), making false statements,

(2000), money laundering,

, 1957 (West 2000 &

Supp. 2004), and conspiracy to launder money in violation of

(h) (West Supp. 2004). He was also convicted of

threatening to assault a federal official,

(West

2000 & Supp. 2004), and mailing a threatening communication,

(West Supp. 2004). The district court sentenced

Bryson to 188 months imprisonment, followed by five years of

supervised release. The court also imposed a $6300 special

assessment, ordered restitution in the amount of $1,348,491, and

provided for forfeiture of Bryson’s interest in property in the

amount of $800,000, as directed in the preliminary order of

forfeiture.

Bryson noted these two appeals from the judgment. The

second notice of appeal (No. 04-6010) was filed on December 29,

2003, seeking review of his sentence. A notice of appeal in a

criminal case must be filed within ten days of the entry of

judgment. Upon a finding of excusable neglect or good cause, the

district court may extend the time to file a notice of appeal for

- 3 - a period not to exceed thirty days. Fed. R. App. P. 4(b)(4).

These time limits are mandatory and jurisdictional. United

States v. Raynor,

(4th Cir. 1991); United

States v. Schuchardt,

(4th Cir. 1982). Because

Bryson’s second notice of appeal from his judgment and commitment

order was filed well beyond both the appeal period and the time in

which the district court could have granted an extension, this

court is without jurisdiction over this appeal. Accordingly,

appeal No. 04-6010 is dismissed.

In appeal No. 01-4836, Bryson’s attorney filed a brief

pursuant to Anders v. California,

(1967), representing

that, in his view, there are no meritorious issues for appeal, but

asserting that Bryson was denied timely access to some discovery

materials and that the district court may have erred in admitting

into evidence a statement made by Bryson. Bryson has filed a pro

se supplemental brief raising a plethora of issues. After a

thorough and painstaking review of this voluminous record, we have

identified an error in the determination of the forfeiture amount

with respect to district court case No. 01-712, and vacate in part

and remand with instructions to conform the judgment to the

evidence. In all other respects, Bryson’s convictions and

sentences are affirmed.

We find no merit to Bryson’s claims that his Fourth

Amendment rights were violated during the search of his residence

- 4 - and the seizure of his records. See United States v. Sprinkle,

(4th Cir. 1997) (providing standard). We also

find no merit to Bryson’s assignments of error with respect to the

order directing a psychiatric examination and his claim that he was

denied a speedy trial. See

(h)(1)(A) (2000)

(excluding any delay “resulting from any proceeding, including

examinations, to determine the mental competency or physical

capacity of the defendant”); see United States v. West,

, 285 n.1 (4th Cir. 1989).

We have reviewed Bryson’s numerous challenges to the

sufficiency of the indictment and the sufficiency of the evidence

and find no error. See Glasser v. United States,

(1942); United States v. Wicks,

(4th Cir. 1999);

United States v. Williams,

(4th Cir. 1998).

Contrary to Bryson’s contention that he was forced to

proceed pro se during his trial, we find that the court

appropriately advised Bryson of the dangers of self-representation

and conducted an adequate inquiry to assure that his waiver of

counsel was: (1) clear and unequivocal; (2) knowing, intelligent,

and voluntary; and (3) timely. We conclude that the district court

appropriately allowed Bryson to proceed pro se. See Faretta v.

California,

(1975); United States v. Frazier-El,

(4th Cir. 2000). Additionally, the court

required Bryson to proceed with hybrid representation—appointing a

- 5 - lawyer to serve as Bryson’s standby counsel. Such a decision was

within the district court’s discretion. McKaskle v. Wiggins,

(1984).

Counsel asserted that Bryson was denied access to some of

the discovery materials in sufficient time to prepare for trial.

See Fed. R. Crim. P. 16(a)(1)(E). While Bryson did not receive

records in one of the eleven boxes of documents and records in a

timely manner, once the oversight was discovered, the government

made every effort to assure that Bryson had sufficient time and

opportunity to review these records. We find no abuse of

discretion by the district court in allowing the use of these

records, given that Bryson was provided access to them and he

asserts no prejudice from the delayed access. See United States v.

Beras,

(1st Cir. 1999); United States v. Ford,

(4th Cir. 1993).

The other issue raised by counsel in the Anders brief is

that the district court erred in allowing the jury to hear evidence

that, shortly after the Oklahoma City bombing incident, Bryson

remarked to Ethel Swink’s nephew that he, Bryson, would be capable

of such a thing. The government asserted that the evidence was

relevant to present a chronology and an explanation for the origin

of the proceedings that led to the discovery of Bryson’s misdeeds

with respect to Swink’s assets.

- 6 - Even if the evidence is relevant under Fed. R. Evid.

404(b), it must be more probative than prejudicial in order to be

admissible. See Fed. R. Evid. 403. Here, we find that this

evidence of Bryson’s comment concerned a sensitive subject matter,

made even more sensitive by the events of September 11, 2001. See

United States v. Tedder,

(4th Cir. 1986)

(citations omitted). However, in light of the overwhelming

evidence of Bryson’s guilt, we find that any error in the admission

of this statement was harmless. See United States v. Ince,

(4th Cir. 1994); United States v. Grooms,

(4th

Cir. 1993).

Bryson asserts that the government’s use of the testimony

of three attorneys violates the attorney-client privilege. We find

that the challenged communications either were not made within the

attorney-client relationship or fell within the crime-fraud

exception, and therefore admission of the evidence did not

implicate the privilege. See In re Grand Jury Subpoena,

(4th Cir. 1989).

Next, contrary to Bryson’s challenge, there was no

violation of his Fifth Amendment privilege against self-

incrimination by the use at trial of financial records and

documents seized from Bryson’s residence pursuant to the search

warrant. See Andresen v. Maryland,

(1976)

- 7 - (finding no violation of Fifth Amendment in the admission into

evidence of business records seized from defendant’s law office).

Additionally, we have reviewed the district court’s

rulings on all other evidentiary objections raised during Bryson’s

trial, and find no abuse of discretion. See United States v.

Rawle,

(4th Cir. 1988).

Bryson contends that the amount of the special verdict of

forfeiture for his convictions pursuant to indictment No. 01-712

was not supported by the charges. We agree, and accordingly remand

this case to the district court to conform the judgment to the

evidence. The jury found that $340,000 was involved in or

traceable to specific offenses for which Bryson was convicted in

indictment No. 01-712. The counts to which the jury attributed and

identified this sum all involved specific, uncontested dollar

amounts. The sum of the funds involved in those counts is only

$338,666.68. Additionally, the jury erroneously included two

counts arising from the same transaction. Thus, we find that the

preponderance of the evidence does not support the jury’s $340,000

special verdict. See United States v. Cherry,

(4th Cir. 2003) (providing standard). Accordingly, we vacate the

judgment as to the amount of the forfeiture with respect to

indictment No. 01-712, and remand with instructions to the district

court to conform the judgment to the evidence. The resulting

forfeiture judgment should be reduced by the $1,333.32 difference

- 8 - between the verdict amount and the sum of the amounts involved in

the designated counts and also by the $40,000 that was erroneously

double-counted, resulting in a special verdict of forfeiture for

indictment No. 01-712 of $298,666.68.

Bryson next argues that the forfeiture order was not made

part of the criminal judgment within seven days of sentencing and

therefore is not valid. He asserts that the district court cannot

modify a sentence more than seven days after the date of

sentencing. See Fed. R. Crim. P. 35(a). Although Bryson’s

sentencing hearing occurred on May 23, 2002, the judgment and

commitment order was entered on the docket on June 18, 2002, and

specifically incorporated the preliminary forfeiture order, which

was signed on June 10, 2002 and entered on June 18, 2002. Bryson

is entitled to no relief on this claim.

Bryson also challenges the contents of the forfeiture

order, asserting that he did not own the properties designated for

forfeiture and that there was no showing that the properties were

purchased with tainted funds. These contentions are meritless.

The order provided for forfeiture of Bryson’s interest in any

substitute asserts pursuant to

(p)(1), (2) (West

Supp. 2004), and the court expressly provided that the United

States was “entitled to forfeiture of equivalent substitute

property [ ] in substitution for such property.” See United

States v. Moffitt, Zwerling & Kemler, P.C.,

(4th

- 9 - Cir. 1996); United States v. Hurley,

(1st Cir.

1995). Because the properties listed in the forfeiture order were

designated as substitute assets, the government was not required to

show that the specific seized assets were acquired with Swink’s

money or with tainted funds.

We have also reviewed the district court’s calculation of

Bryson’s sentence under the U.S. Sentencing Guidelines Manual and

Bryson’s challenges to that sentence and find no reversible error.

Accordingly, with the exception of the forfeiture order discussed

above, we affirm Bryson’s sentence.

Bryson contends that he was denied the effective

assistance of counsel. We have previously determined that Bryson

knowingly, intelligently, and voluntarily chose to waive counsel

and proceed pro se. See Faretta,

. Having chosen

to proceed pro se, Bryson cannot now assert that he was denied the

effective assistance of counsel.

at 834-35 n.46. Moreover, to

the extent that Bryson was represented by counsel, because the

record in this case does not conclusively establish that counsel

was ineffective, such a challenge may be brought, if at all, in a

proceeding under

(2000). See United States v.

Richardson,

(4th Cir. 1999); United States v.

King,

(4th Cir. 1997).

In conclusion, we dismiss appeal No. 04-6010 for lack of

jurisdiction. In appeal No. 01-4836, we affirm Bryson’s

- 10 - convictions and his sentence, except to the extent that we have

determined that the forfeiture verdict in case No. 01-712 is not

supported by the preponderance of the evidence. Accordingly, we

vacate the judgment and commitment order in part and remand the

case with instructions to the district court to conform the

forfeiture verdict to the evidence. All pending motions are

denied.

This court requires that counsel inform his client, in

writing, of his right to petition the Supreme Court of the United

States for further review. If the client requests that a petition

be filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to

withdraw from representation. Counsel’s motion must state that a

copy thereof was served on the client.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

No. 01-4836, AFFIRMED IN PART, VACATED AND REMANDED IN PART; No. 04-6010, DISMISSED

- 11 -