MIAMI (CN) — A convicted identity thief who managed a New York hedge fund before his arrest for a three-year fraud spree has asked an 11th Circuit panel to nix his 22-year sentence, claiming the trial court erred by letting him represent himself.
Gerti Muho — also known as Gerard Morgan and Enton Pinguli — claims the trial court should have forced him to take on legal counsel after he "became aggressive" during cross-examination and "appeared not to understand portions of the proceedings" in a 40-count federal fraud case against him.
Muho was convicted in 2017 of a carrying out a spree of fraud and identity theft that funded gambling trips, his purchase of a Maserati and acquisition of an oceanfront condo in downtown Miami. He was sentenced to 22 years in prison and ordered to pay about $1.7 million in restitution.
The crimes kicked off with an alleged scheme to siphon $2 million from a hedge fund group that had just fired him. In the months that followed, prosecutors say Muho cashed $161,000 in fraudulent checks, illegally secured more than $340,000 in federal tax refunds, and lined up more than a half-million dollars in loans using fraudulent applications and identity theft.
Muho "used the personal identifying and financial information of various employees, interns, and other individuals associated with his former employer" in order to secure loans, the Justice Department alleged.
At trial, two successive lawyers for Muho moved to withdraw as his counsel, citing communication issues and Muho's purported refusal to discuss viable legal strategies. A competency evaluation in early 2017 found that Muho was fit to stand trial in the Southern District of Florida notwithstanding his conflicts with his lawyers.
Muho then asserted repeatedly in open court that he wanted to represent himself. His request to have counsel on hand – to help with specific tasks like cross-examining witnesses – was not permitted by the presiding judge, though Muho was allowed to have a lawyer available for advice when the jury was not present.
In his appellate brief, Muho now claims the district judge should have forced him to enlist a full-time attorney once he started acting confused and irrational during proceedings. The former hedge fund staffer, who says he has a law degree from the University of California – Berkeley, cites testimony in which he apparently lost his temper when a prosecutor questioned him about a bogus Social Security number he had purportedly used.
"What did you ask? And what is your exact question? Because you've locked me up for nine months because of this bullshit," Muho said in the 2017 proceedings.
Beyond that, Muho claims he did not understand what documentation was needed to support his standing to suppress evidence collected from his foreclosed Miami condo.
According the Department of Justice, Muho's arguments "fall far short" of showing any error by the trial court.
The DOJ says Muho is trying to twist "instances of annoyance, confusion, or lack of legal acumen on his part" into grounds for a new trial.
"Muho cannot show that the district court reversibly erred by declining to force him to abandon his right to proceed pro se on the basis of [a] single isolated outburst—particularly one that occurred while he was a testifying witness rather than functioning as his own advocate," the DOJ's brief argues.
Muho's own standby counsel told the trial judge in 2017 that he knew of no mental health issues affecting his client and that he “wholeheartedly” supported Muho’s “desire to represent himself,” the DOJ says.
During oral arguments before an 11th Circuit panel Tuesday, Muho's appellate lawyer Richard Klugh focused on trying to void a sentencing enhancement that he said tacked on as many as four years to Muho's prison term. The federal sentencing enhancement is applied when a defendant "derive[s] more than $1,000,000 in gross receipts from one or more financial institutions as a result of the offense."
The legal tussling revolved around whether the sentencing enhancement applies not only to theft of banks' money, but to theft of third parties' money using banks as a vehicle for the crime. The fraudulent transaction at issue involved Muho's misleading a Monaco bank into believing he had authority to transfer millions of dollars from the investment fund where he used to work.
Klugh maintained Tuesday that the sentencing hike applies only to direct losses incurred by a bank.
"The indictment specifically alleged that this was the corporation's money, the corporation's own funds," he argued.
Appellate attorney for the government, Daniel Matzkin, countered that the purpose of the sentencing enhancement is to "penalize individuals from putting banks at risk or at jeopardy by stealing funds," and "that's exactly what we have here."
"Stealing money from a bank does expose the bank to financial risk even if the funds belong to a third party," Matzkin said.
It is unclear when the judges will issue a ruling in the case.
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