Sunday, August 16, 2020

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

  Engel’s dialectic?

Mr. Todd Engel


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 .


Image of “Hang ‘em High” movie poster from


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




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