Self-representation and a late suppression motion

A person charged in federal court can choose to go to trial without a lawyer, and that choice can stand when the record shows it was knowing, voluntary, and clear. On October 29, 2026, in a published opinion, the First Circuit affirmed the convictions in United States v. Newton, No. 25-1101. It also left text messages from a border search of a cell phone in the trial record, because the reasonable-suspicion argument made on appeal was not in the pretrial motion. Read the decision (PDF).

What happened

A grand jury in the District of Massachusetts indicted Faith Newton and a co-conspirator on January 28, 2021. The district case is No. 1:21-cr-10035. The indictment charged twelve counts involving health care fraud, a kickback scheme, and money laundering. Before the first trial, the government dismissed six of those charges.

Newton's company, Arbor Homecare Services LLC, billed MassHealth, the Massachusetts Medicaid program, for more than $99 million. The opinion describes those bills as fraudulent. The charges that went forward are federal offenses, tried in federal court.

The first trial began on June 26, 2023. An issue arose during jury deliberations, and the court declared a mistrial. The opinion does not say what that issue was. The retrial began on July 8, 2024. The jury convicted Newton of conspiring to commit health care fraud under 18 U.S.C. § 1349, health care fraud under 18 U.S.C. § 1347, and three counts of money laundering under 18 U.S.C. § 1957.

On January 22, 2025, the district court sentenced her to 144 months in prison, three years of supervised release, a $250,000 fine, and restitution of $99,734,517.50.

Lawyers, warnings, and the choice to proceed alone

The Sixth Amendment says that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defence. In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that this right also includes the right to represent oneself. The government may not, the Court wrote, "hale a person into its criminal courts and there force a lawyer upon him." A person who manages the defense gives up many of the practical benefits of having a lawyer. The waiver of counsel therefore has to be knowing, intelligent, and voluntary. The judge must warn the person of the dangers and disadvantages, so the record shows the choice was made with eyes open.

A Faretta colloquy is that warning. It is the set of questions and cautions a judge gives before allowing someone to proceed without a lawyer. Standby counsel is a lawyer appointed to help with procedure. Standby counsel does not take over the defense.

The First Circuit said it reviews this kind of record effectively de novo, meaning it looks at the waiver question anew. As the opinion describes the court's earlier decision in United States v. Belin, 868 F.3d 43 (1st Cir. 2017), a waiver stands when the record supports a reasoned conclusion that the person was fully told of the right to counsel and of the disadvantages of proceeding alone. The waiver also has to be stated in unequivocal language, meaning the words are clear and not hedged.

Federal Rule of Criminal Procedure 12(b)(3)(C) requires a motion to suppress evidence to be raised before trial if the basis for the motion is then reasonably available and the court can decide it without a trial on the merits. A motion to suppress asks the judge to keep evidence out. Rule 12(c)(1) says the court may set a deadline, and if it sets none, the deadline is the start of trial. Rule 12(c)(3) says that if a party misses the deadline, the motion is untimely, but the court may consider it if the party shows good cause.

What the court decided about self-representation

By the court's count, thirteen lawyers had represented or assisted Newton since the indictment. She had counsel for the 2023 trial. Before the retrial, appointed counsel moved to withdraw. She asked to represent herself only until restrained assets were released so she could hire a lawyer of her choice. In a related federal civil forfeiture case, a judge had frozen properties and accounts in 2021. The criminal court denied the request to wait. It doubted those funds would be released, kept the July 8 trial date, and said it would not allow her to proceed alone until it was satisfied she was prepared to represent herself through trial.

At a hearing on June 5, 2024, the court gave her three options: represent herself, with standby counsel; go to trial with a lawyer who was already in the case; or hire a new lawyer who would be ready in time. She said, "I want to represent myself." The judge warned her, in plain words, that she did not know the rules of evidence and did not have experience picking a jury, giving an opening statement, or cross-examining witnesses. The judge said representing herself was "a terrible idea," and that if she was convicted she could not complain on appeal that it was because she represented herself, because she was choosing that path. She answered, "It's my choice."

She had heard a similar warning in 2022, from a magistrate judge, before the first trial. After that earlier colloquy she did hire counsel. Between the two warnings, she sat through a full criminal trial.

On the morning of the retrial she objected to proceeding without representation. The district court overruled the objection because she had chosen to represent herself. Standby counsel assisted her through the trial.

On appeal she argued that letting her represent herself violated the right to counsel and due process. The First Circuit rejected four reasons.

The warnings were enough. Newton did not claim the words of the warning were inadequate on their face. She argued that mental and language difficulties kept her from understanding them. The court looked at the whole record. She received two sets of warnings. Both told her, in strong and plain language, about the disadvantage of going forward alone. She had also watched an entire trial of her own between the two colloquies. The opinion describes United States v. LaBare, 191 F.3d 60 (1st Cir. 1999), as recognizing that a person who has sat through a criminal trial of her own has to know that a trial involves witnesses, objections, and rules. The court said the record did not support a claim that she lacked understanding. It noted that neither the government nor her lawyers had asked for a psychological examination, and that the district court had watched her over time.

The waiver was unequivocal. "I want to represent myself" and "It's my choice" were clear. She also said she hoped restrained funds would be released so she could hire a lawyer, and that she wanted to proceed without a lawyer only until then. The court held that a desire to represent oneself now is not incompatible with a desire to hire a lawyer later. A person who waives counsel may later retract that waiver. Here, both the magistrate judge and the district court told her she could hire a lawyer if she changed her mind. Her final decision to go forward alone was clear, even if it was not her first preference.

The court could require a choice. The First Circuit has held that, in some circumstances, a district court may require a defendant to choose between representation by unwanted counsel and proceeding alone. This was one of those cases. Newton had not shown that the lawyer who remained willing to represent her was constitutionally inadequate. The court described the conflict as her conduct with her lawyers, not as a failure of counsel. It relied on Morris v. Slappy, 461 U.S. 1, 14 (1983), which rejected the claim that the Sixth Amendment guarantees a "meaningful relationship" between an accused and his counsel. By the June 2024 hearing she had changed lawyers repeatedly, and the case was on the verge of trial. The opinion describes earlier First Circuit law as holding that a court need not tolerate unwarranted delay, and that it may require the case to be tried even if the defendant is not entirely satisfied with the lawyer.

Competence to waive is not competence to try the case. Newton read Indiana v. Edwards, 554 U.S. 164 (2008), as creating a higher competency test for self-representation than for standing trial. The First Circuit disagreed. Edwards permits states to insist on a lawyer for someone who is competent to stand trial but who still has a severe mental illness. It does not create a second competency tier that a federal court must apply. In Godinez v. Moran, 509 U.S. 389, 399 (1993), the Supreme Court said "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." On this record, the court concluded she could make that choice.

The district judge's warning, that she could not later blame a conviction on self-representation, did not stop the appeal. The First Circuit still reviewed whether the waiver was valid. It upheld the waiver and declined to overturn the convictions because of it.

The cell phone search at the airport

On July 30, 2017, Customs and Border Protection agents stopped Newton at Boston Logan International Airport when she returned from Kenya. They seized her cell phone and did a forensic search of its contents. The search produced text messages tied to the Arbor scheme. The government later introduced some of those messages at the retrial.

The night before the retrial, proceeding without a lawyer, Newton filed a motion to exclude the cell phone data and border records. She gave two grounds: the government had no warrant, and a prosecutor had requested the search. On the third day of trial, the district court heard the motion. The government argued that a warrantless non-routine search at the border is allowed if agents have reasonable suspicion that the search will uncover evidence of a crime enforced by Customs and Border Protection. The agents, who have authority to investigate international cash money laundering, suspected she was moving cash overseas and using the phone in that activity. The government pointed to interviews of former employees about money going to Kenya and to a receipt for a $1.7 million deposit into a Kenyan bank.

Her written response repeated the warrant and prosecutor arguments. The opinion says she seemed to contest whether reasonable suspicion was the right standard. She did not argue that the government lacked reasonable suspicion.

The district court denied the motion. It said that, "although it's a close call," there was reasonable suspicion of money laundering and that the search and seizure were permissible. The judge said her objection was preserved. The appeals court later held that this statement covered only the objections she actually made.

On appeal, Newton argued that the facts known at the time were not enough for reasonable suspicion. The Newton opinion describes Alasaad v. Mayorkas, 988 F.3d 8, 18–21 (1st Cir. 2021), as holding that the Fourth Amendment requires reasonable suspicion for a non-routine search at the border, aimed at evidence of activity that violates laws enforced or administered by Customs and Border Protection or Immigration and Customs Enforcement. The First Circuit did not decide whether this search met that standard.

It held that the reasonable-suspicion argument was unreviewable. Failing to mention an argument is not raising it squarely. Representing herself did not excuse the gap. The opinion cites Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), for the point that proceeding without a lawyer does not excuse a party from following the rules. The discussion of reasonable suspicion by the prosecutor and the judge did not put the argument into her motion. A judge's statement that an objection is preserved does not license new arguments on appeal.

She did not try to show good cause under Rule 12(c)(3). The court said she was not entitled to plain-error review. Plain-error review is a limited look at a mistake that was not preserved. The First Circuit did not use it. It left the district court's ruling in place.

The sentence was left in place

The court also affirmed the sentence. On appeal, Newton argued that the loss amount should have been lower if the court had counted the value of services Arbor provided, and that an increase for sophisticated means did not apply because, in her view, depositing money in a Kenyan bank was not an offshore transaction. Those were not the objections she made in the district court. Her briefs did not ask for plain-error review. The First Circuit treated the sentencing arguments as waived and did not decide them.

What it means at a federal trial

• The words of the waiver, and the warnings around them, are the record. In Newton, two colloquies in plain language, plus having already sat through a trial, supported a knowing waiver. The appeals court still reviewed that record. It did not treat the district court's warning as a bar to the appeal.
• Hoping to hire a lawyer later does not, by itself, make a present waiver unclear. A person can retract a waiver of counsel. A statement that self-representation is only until money is released can sit alongside a clear choice to go forward now. In this case, the final choice was unequivocal.
• A firm trial date can narrow the options. The court may require a choice among standby counsel, a lawyer who is ready, and a new lawyer who can be ready in time. Dissatisfaction with a lawyer who remains willing to try the case is not, on its own, a constitutional breakdown of representation.
• A suppression ground has to be in the pretrial motion. "No warrant" and "a prosecutor asked for the search" were not the same argument as "there was no reasonable suspicion." Being self-represented did not change that. Newton does not decide whether this border search of a phone was legal. It decides that the new argument was too late.
• The decision is First Circuit precedent. It governs district courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

Our guides to a federal trial, a motion to suppress, federal health care fraud, appointed and private counsel, and appeals in the First Circuit explain the hearing, the charge, and how a circuit ruling is reviewed.