United States of America v. Francis Burns

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 22, 2024
Decided October 23, 2024
By the Court:
No. 23-1116
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCIS BURNS,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 19-CR-245
Lynn Adelman,
Judge.
O R D E R
Francis Burns was charged with committing wire and mail fraud, 18 U.S.C.
§§ 1343, 1341, engaging in unlawful monetary transactions, 18 U.S.C. § 1957, and filing
false tax claims, 18 U.S.C. § 287. After pleading not guilty, Burns determined that he
wanted to represent himself.
A magistrate judge held a hearing on appointed counsel’s motion to withdraw
and Burns’s desire to waive his right to counsel. After engaging Burns in a lengthy
colloquy, the judge expressed misgivings about Burns’s strategy (noting, for instance,
that Burns’s understanding of the law was “to put it mildly, incorrect” and that his
filings bore “hallmarks of sovereign citizen ideology”), but concluded that Burns had
demonstrated that he was competent to waive his right to counsel, and that he had
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1116 Page 2
done so voluntarily, knowingly, and intelligently. The judge thus granted counsel’s
motion to withdraw and allowed Burns to proceed pro se, with counsel serving
standby.
Before and during trial, Burns sought to dismiss the charges. About halfway
through trial, he stated that he wished to invoke his right to counsel and be represented
by standby counsel. The district judge denied his request, and the trial continued. The
jury convicted Burns on all counts, and the judge sentenced Burns to 60 months in
prison.
Burns appeals, but his appointed counsel asserts that the appeal is frivolous and
moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). In his Anders brief,
however, counsel does not address whether Burns could raise a nonfrivolous challenge
over the waiver of his right to counsel. This issue is vital to the fairness of criminal
proceedings, see United States v. Nichols, 77 F.4th 490, 498–500 (7th Cir. 2023), and an
adequate Anders brief must review “anything in the record” that arguably might
support the appeal. Anders, 386 U.S. at 744.
Counsel is ORDERED to file a supplement to the Anders brief, addressing
whether the district court properly determined that Burns (1) voluntarily and
knowingly waived his right to counsel, and (2) was not entitled to representation by
standby counsel upon his request. To adequately address whether Burns waived his
Sixth Amendment right, counsel should order and review transcripts from the motion
hearing on March 5, 2021, at which the court granted the motion to withdraw.
The supplement is due by December 23, 2024, subject to any extensions
requested due to the time to prepare transcripts.

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