Case o' The Week: Pro Se, A-Ok -- Engel and Parameters of Pro Se Representation

  Engel’s dialectic?

Mr. Todd Engel

“Tame.” 

United States v. Engel, 2020 WL 4519071 (9th Cir. Aug. 6, 2020), decision available here.

Players: Decision by Judge Bybee, joined by Judges W. Fletcher and Watford.  

Facts: Todd Engel traveled from Idaho to Nevada to impede a Bureau of Land Management (BLM) operation, related to the Bundy confrontation. See generally case description at blog on Bundy, here. Id. at *1. Wearing combat gear and armed with an AR-15, Engel stood on a bridge overlooking the BLM’s position. Id. No shots were ever fired. 

  He was charged with obstruction of justice and interstate travel in aid of extortion. A trial Engel successfully moved to represent himself and was appointed standby counsel. Id. at *2.

 Twenty-one days into the trial, Engel attempted to solicit from a government witness on cross that Special Agent Dan Love had been the subject of an investigation. Id. at *2. The court had previously rejected defense efforts to call Agent Love. Id. The district court sustained the government objection: Engel calmly apologized. Id.

   The government then moved for Engel’s pro se status to be revoked. The court, finding Engel was “smug” and “very proud of himself” for “sliding in” the question, agreed, revoked pro se status, and standby counsel came in. Id. Engel was convicted and sentenced to 168 months. Id. at *3.

Issue(s): “[Engel] contends that the district court violated the Sixth Amendment during his trial when the court terminated his right to represent himself and appointed standby counsel to represent him instead.” Id. at *1.

Held: “When viewed in comparison to these cases, the facts here do not support the district court’s termination of Engel’s right to represent himself. Unlike the defendants in [United States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004) and Badger v. Cardwell, 587 F.2d 968, 971–73 (9th Cir. 1978)], Engel was not defiant and did not engage in   blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, Engel merely asked a question prejudicial to the government. When the government objected, Engel remained calm and ultimately acquiesced in the court’s decision to revoke his right to self-representation.” Id. at *4. 

 “We hold that Engel’s conduct was not sufficiently disruptive to justify termination of his right to self-representation. Because this is a structural error, we vacate Engel’s conviction and remand for a new trial.” Id. at *1.

Of Note: What is the standard of review, when a defendant claims on appeal that his Sixth Amendment right to self-representation was violated? There’s a split: five circuits have held it is de novo review, while the Seventh has held the issue is reviewed for abuse-of-discretion. Id. at *3.

  Judge Bybee explains that the Ninth Circuit hasn’t yet decided the S.O.R., and “[b]ecause we think the result in this case is the same under either standard, we need not resolve this split in authority.” Id. at *3.

  Note this issue for future Sixth Amendment / pro se cases: the standard of review remains up for grabs in the Ninth.

How to Use: How disruptive must a pro se defendant be, to have self-representation yanked? Judge Bybee works through a set of fact patterns where the Ninth upheld the court’s pull of pro se status: heated discussions with the judge, threats to a juror, and specific violations of a court order. Id. at *4. This same discussion reports conduct that is not enough: nonsensical pleadings, occasionally uncooperative, wearing prison garb in front of the jury, and lack of familiarity with the rules. Id. By comparison to these cases, Engel’s conduct in this trial was “tame.” Id. at *5. When dealing with a pro se client, Engel is a useful catalog of the conduct that crosses the line and can bump you from standby counsel to trial counsel.                                              

For Further Reading: Last week President Trump announced his intent to nominate a five Sentencing Commissioners. See press release here. 

Four of the five nominees are former federal prosecutors, who are on record favoring (significantly) higher custodial sentences. See, e.g., “Hang ‘em High” federal judge makes no apologies, here. 

Will the current Senate get around to confirming this daunting crew? The guideline ranges for our future clients, for many years ahead, hinge on whether these five nominations get crammed through the current Senate before it ends on January 3, 2021.   

 

 

Image of Mr. Engel from https://twitter.com/jjmacnab/status/1020058913113178112 .

 

Image of “Hang ‘em High” movie poster from https://www.vudu.com/content/movies/details/Hang-em-High/140796

 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

 

.

  

Case o' The Week: Ninth Nod to the Nutty - Equivocation When Going Pro Se in Faretta Hearings

 Feeling Lucky?

Charles 'Lucky' Luciano

United States v. Audette, 2019 WL 2096455 (9th Cir. May 14, 2019), decision available here.

Players: Decision by Judge M. Smith, joined by Judges Hawkins and Hurwitz. Hard-fought appeal by District of Arizona AFPD Elizabeth J. Krushchek.

Facts: Steven Audette borrowed millions, explaining that he needed to pay federal agents to protect him from the mafia. Id. at *1. He assured victims that he was a relative of organized crime figure Lucky Luciano, and was destined to inherit millions. Id. He and his family would be killed, he explained, and his victims kidnapped, tortured, and murdered, if he didn’t make the pay-offs. Id. at *2.

  In reality, however, the Mafia wasn’t after Audette, nor was he related to Luciano. Id.

  Audette was charged with 90 counts of wire fraud.

  After a court-ordered eval a shrink concluded Audette was not competent. Id. at *2. Audette was shipped off to the BOP, which quickly reported his competency “restored. Id.”

  After a number of Faretta requests, the district court had a hearing. Id. Audette then equivocated about representing himself, and explained that he wanted his attorney. Id. at *3. Ultimately, however, Audette said he wished to go pro se. Id. at *3.

  The court granted his wish, Audette was convicted of all counts, and sentenced to 20 years. Id. at *1.  

Issue(s): “Audette . . . argues that his waiver was equivocal because of what he said at the Faretta hearing before stating that he wished to represent himself. Audette told the court that he ‘want[ed] [appointed counsel] to represent [him] ... I’m scared to death to represent myself, in all honesty, I’m scared to death because I know that I don’t stand a chance against the prosecution.’ A few seconds later, he told the court that ‘when I heard you go over all the things I need to know to adequately defend myself ... it’s daunting. ... I don’t want to go toe to toe with the prosecution. That’s like me going up against Mike Tyson in a boxing match.’” Id. at *5.

Held: “Standing alone, such statements might make a waiver of counsel equivocal . . . . But after making those statements, Audette told the district court: ‘Yes, sir, it is’ in response to whether ‘it [is] your wish to represent yourself pro se?’ That statement was not an ‘impulsive response’ to the court’s question—Audette took five minutes to deliberate with Borrelli before responding to the court’s question. . . . Accordingly, Audette ‘appears to have given the issue serious thought,’ which supports our conclusion that Audette’s waiver of counsel was unequivocal.” Id. at *5 (quotations and citations omitted).

Of Note: Hamlet? Decisive, compared to Audette’s equivocation. See id. at *2.

 Judge M. Smith, however, rejects the argument that Audette’s “equivocal statements earlier in the hearing tainted his final, unequivocal waiver of counsel.” Id. at *5. Instead, the Ninth interprets these “expressions of trepidation” as evidence that Audette “grappled with the difficult decision.” Id.

Steven Audette

  (Bear in mind that Audette also wanted to tell the jury that he and “President Clinton [had hidden] guns and badges in a toilet while eating egg rolls). Id. at *8. 

  The Ninth attributes much introspection to a self-described egg-roll-chomping Friend of Bill.

How to Use: Read Judge Reinhardt’s Fahad concurrence. 190 F.3d 1097, 1107 (9th Cir. 1999). Twenty years ago that prescient jurist advocated for some rational limits on the rights of the mentally-ill to represent themselves. (Not an absolute right, he reminded us). Id.

  Judge Reinhardt’s pitch never got traction, and Audette now follows a line of authority – Kurt Johnson, Brugnara, and the recent Read – that honors the autonomy of delusional defendants to self-incarcerate for decades through wince-inducing pro se trials. (Notably, the Audette panel (Judge M. Smith, author) is the same panel as in Read (Judge Hawkins, author)).

   When faced with the mentally-ill client who is flirting with the idea of self-representation, read Read, (March 2019) and Audette together. This brace of recent decisions now lay out the parameters of pro se in the Ninth.

                                               

For Further Reading: Last week Kenneth Lee became the newest Ninth Circuit judge. Mr. Lee was President Trump’s 40th confirmed circuit judge: he was confirmed 52-45. See article here. 

Image of Charles “Lucky” Luciano from https://www.reddit.com/r/ColorizedHistory/comments/afil3q/mafia_boss_charles_lucky_luciano_in_exile_sicily/

Image of Steven Audette from https://www.timesfreepress.com/news/local/story/2017/jan/22/arizonscammer-maricounty-tie-gets-20-years/408770/

Image of Hamlet and Yorick’s skull from https://www.pinterest.com/pin/688136018040679294/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.

Case o' The Week: Breaking Up is Hard to Do, Mendez-Sanchez

Appointed counsel -- be it CJA or FPD -- are getting fired in droves in the N.D. Cal., thanks to the "priors" policy of United States Attorney Joe Russoniello (left). Perfect timing for a new decision by the Ninth, discussing Faretta motions and motions for new counsel: now-frequent fare for the N.D. Cal. bench. United States v. Mendez-Sanchez,__ F.3d __, No. 08-30044, 2009 WL 1082288 (9th Cir. Apr. 23, 2009), decision available here.

Players: Decision by Judge Gould.

Facts: Mendez-Sanchez was charged with drug conspiracy counts that carried a ten-year mandatory minimum. Id. at *1. His appointed attorney asked to be relieved, explaining that Mendez-Sanchez accused him of “threatening him” whenever counsel discussed the evidence. Id. A pair of new counsel were appointed. Id.

As trial loomed, Mendez-Sanchez moved to fire this second round of counsel: appointed counsel affirmed the defendant was competent, but explained, “he just doesn’t want to hear what I’m telling him. And he just doesn’t want to talk about it, basically.” Id. at *2. Mendez-Sanchez then described his distrust of his lawyers, and said: “I don’t want any lawyer anymore.” Id. at *3. “I don’t want these lawyers. I’m not going to risk my life with these lawyers.” Id. He said that self-representation would be better than being represented by these lawyers, id. at *3, but later asked for another lawyer, id. at *4.

The district court denied Mendez-Sanchez’s request for new counsel, he was convicted at trial, and sentenced to 240 months. Id. at *4.

Issue(s): “We consider the relationship between a motion to substitute counsel and an invocation of a defendant’s Faretta rights.” Id. at *1.

Held: “We hold that while a defendant may invoke his or her self-representation rights after a denial of a motion to substitute counsel, the invocation must be unequivocal. A request to represent oneself made while at the same time stating a preference for representation by a different lawyer and rearguing the change of counsel motion is insufficient to invoke Faretta.” Id. at *1. “[T]he district court’s Faretta inquiry was sufficient . . . the district court did not clearly err in finding that Mendez-Sanchez had not unequivocally waived his right to counsel.” Id. at *9.

Of Note: The core holding of Mendez-Sanchez is that Faretta motions – a motion for self-representation – must be unequivocal. Id. at *7. “Because the exercise of self-representation cuts of the exercise of the right to counsel, often to individual detriment, we recognize the right only when it is asserted without equivocation.” Id. at *8.

This is a confusing and fuzzy area of law. A defendant can place conditions on self-representation and still make an unequivocal demand: e.g., “If I do not get new counsel, I want to represent myself.” Id.

But, if the defendant states, “If I am appointed standby counsel, I would like to represent myself,” then he has made an equivocal demand and Faretta isn’t triggered. Id. (?!?) {As intuitive as “conditions precedent” in Property law.} The absurdity of this area of law is that these are usually indigent, uneducated clients who are struggling to speak to the court – often through a translator. Deciding Faretta on phrase placement by an inarticulate defendant is, essentially, a quiet way of avoiding the train wreck of self-representation: not a bad thing from a policy perspective, but a tough rule to understand.

How to Use: Those who represent indigent defendants in federal court will wince in recognition at the Mendez-Sanchez fact pattern. In addition to its primary holding on Faretta invocation, the decision also has an interesting and lengthy discussion on the frequently-misunderstood (by clients) “right” to new counsel. Id. at *4-*6. Judge Gould recites the three Prime factors in reviewing such motions:

1. the timeliness of the motion,

2. the adequacy of the court’s inquiry, and

3. whether the conflict was so great “as to result in a complete break-down in communication and consequent inability to present a defense.”

Id. at *4.

The decision is a clear, recent example that would be excellent reading material for disgruntled clients anxious to invoke “right” for a new attorney.

For Further Reading: Indiscriminate filing of priors, unfairly bullying defendants into “quick” dispos with threats of priors, filing priors if bail is sought, and a pervasive arrogance in the conveying of offers: a sure recipe for a resource-destroying tsunami of Faretta motions and motions for new counsel. See article here.

Image of USAO Joe Russoniello from http://www.marijuanafreedommarch.org/home/wp-content/uploads/2009/04/225px-joseph_russoniello.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.