United States of America, Plaintiff-appellee, v. Ronald Mitchell, Defendant-appellant, 788 F.2d 1232 (7th Cir. 1986)

Ronald Mitchell appeals his conviction for "Bank Robbery and Incidental Crimes" under 18 U.S.C. § 2113(a) and (d), arguing that the trial court erred in permitting him to proceed pro se with standby counsel. Mitchell also challenges the trial court's refusal to sever his trial from that of his co-defendant, its denial of his motion for judgment of acquittal, and his sentence of twenty years' imprisonment. We affirm.

This Court previously characterized the facts of Mitchell's case in United States v. Oglesby, 764 F.2d 1273, 1274-75 (7th Cir. 1985), where we upheld the conviction of Mitchell's co-defendant, Joseph Oglesby. The pertinent information is as follows:

The testimony at the trial of Oglesby and his co-defendant, Mitchell, in the United States District Court for the Southern District of Illinois established a bank robbery in Belleville, Illinois, and the subsequent arrest in East St. Louis, Illinois. At about noon on February 23, 1984, two men, later identified as Oglesby and Mitchell, entered the Illini Federal Savings and Loan Association of Belleville, Illinois. While Mitchell approached the bank manager indicating that he wished to apply for a loan, Oglesby slipped behind the teller's counter and pressed a loaded .38-caliber Derringer in the side of the nearest teller. Mitchell produced a .357 Magnum revolver and threatened the manager. At Oglesby's direction, the teller removed $4,302.00 from the cash drawers and placed the money in a brown bag. Included in the money removed from the cash drawers was bait money, bills whose serial numbers were recorded for identification purposes. The removal of the bait money from the cash drawer activated the saving and loan's surveillance cameras which took a series of pictures, including photographs of Oglesby and Mitchell, during the bank robbery.

After ordering their victims to lie face-down in a rear room of the bank, the two men fled in a yellow Camaro with Tennessee license plates. The two men drove to an apartment complex where they abandoned the Camaro and paid a Bernard Bolden $40.00 to drive them to a location in East St. Louis, Illinois. After leaving the men in East St. Louis, Bolden returned to the apartment complex where he was detained and questioned by the police. Bolden later accompanied the police to the East St. Louis address to which he had transported the men. The police located and apprehended the two subjects, searched the house where they were temporarily residing, and recovered a .38-caliber Derringer, a .357 Magnum Smith & Wesson revolver, and a large sum of money. The police removed one of the bait bills from Mitchell's pockets and about $1,500.00 in cash.

On the first day of trial just before the jury was sworn, Mitchell requested the court to appoint him a new attorney. Because this request came so late, the court denied it and instead decided to allow him to proceed pro se with James Hackett, his appointed attorney, as standby counsel. Mitchell later submitted motions for severance and for a judgment of acquittal, both of which were denied. On April 25, 1984, the jury found Mitchell guilty of violating 18 U.S.C. § 2113(a) and (d),¹  and the court sentenced him to twenty years' imprisonment. This appeal followed.

We consider Mitchell's four contentions in the order presented in his brief.

A. Pro se Representation.

Mitchell, after stating initially that he had irreconcilable differencies with Hackett, requested the district court to appoint him a new attorney. The court, refusing to delay the trial, urged Mitchell to accept the benefit of legal guidance, and it attempted to discuss with the defendant the potential problems of self-representation.²  Mitchell chose to proceed pro se with Hackett as standby counsel rather than go to trial with Hackett as his regular attorney.

For Mitchell to knowingly and intelligently waive his Sixth Amendment right "to have the assistance of counsel for his defense," he had to "be made aware of the dangers and disadvantages of self-representation so that he kn [ew] what he [was] doing and his choice [was] made with his eyes open." Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975). See also McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); Edwards v. Arizona, 451 U.S. 477, 482-83, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). While the trial judge need not give "a hypothetical lecture on criminal law," Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1970), he should have more fully discussed the situation with Mitchell. Instead of stressing problems such as exclusion of evidence, self-incrimination, and waiver of potential defenses, the trial court merely mentioned that "there will be many occasions where possibly objections should be made that you will not recognize that should be made." We do not, however, hold that this failure to inform Mitchell more completely about the dangers of waiving counsel rises to the level of reversible error, but this Court does caution district judges of the problems inherent in allowing criminal defendants to represent themselves without more complete warning.³ 

Mitchell waited until the last minute before first requesting new counsel and then self-representation. Thus he could be asked, in the interest of orderly procedure, to choose between waiver of counsel and another course of action as long as the choice presented to him was not constitutionally offensive. United States v. Davis, 604 F.2d at 483 (quoting Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976)). In the present case, the court offered Mitchell with a clear choice between representation by Hackett or self-representation with Hackett available for consultation at the defendant's discretion. The court indicated it was too near the start of the trial to appoint new counsel for Mitchell. In response, Mitchell persisted in his desire to proceed pro se.

The issue presented here is whether proceeding pro se with Hackett as standby counsel was a constitutionally adequate alternative to potentially ineffective assistance by Hackett's complete representation by Mitchell. Mitchell has asserted no allegation that Hackett was incompetent. Instead, he contends that his "counsel was ineffective insofar as establishing any relationship between" Hackett and himself. Since he and Hackett "could never calmly and productively work together," Mitchell argues that by the court's presenting him with the choice of representation by Hackett or self-representation with Hackett as standby counsel, he could not voluntarily waive his Sixth Amendment right through a free and meaningful choice. See Moore v. Michigan, 355 U.S. 155, 164, 78 S. Ct. 191, 196, 2 L. Ed. 2d 187 (1957); Love v. Young, 781 F.2d 1307, 1316 (7th Cir. 1986). The Supreme Court, however, has held that there is no constitutional right to a "meaningful [i.e., harmonious] attorney-client relationship," Morris v. Slappy, 461 U.S. 1, 13-14, 103 S. Ct. 1610, 1617, 75 L. Ed. 2d 610 (1983),⁴  and therefore, the trial court did not offer Mitchell an impermissible choice by requiring him to proceed either pro se plus standby counsel or with an attorney he didn't like. While as an indigent Mitchell had a constitutional right to have conflict-free, competent legal representation paid by the state, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 92 L. Ed. 2d 799 (1963), he did not have the right to the appointed attorney of his own choice. United States v. Ely, 719 F.2d 902, 904 (7th Cir. 1983), cert. denied, 465 U.S. 1037, 104 S. Ct. 1313, 79 L. Ed. 2d 710 (1984). We therefore hold that Mitchell's decision to proceed with Hackett as standby counsel constituted a knowing and intelligent waiver of his right to counsel.

B. Severance.

Mitchell next asserts that the trial court erred by denying his motion for severance. The court had the discretion to sever the trial if either Mitchell or Oglesby would be prejudiced by joinder. Fed. R. Crim. P. 14. The law in this Circuit is well settled that " [m]otions for severance are committed to the sound discretion of the trial court and will be overturned on appeal only upon a showing of abuse of discretion." Oglesby, 764 F.2d at 1275 (citing Opper v. United States, 348 U.S. 84, 95, 75 S. Ct. 158, 165, 99 L. Ed. 101 (1954)). See also United States v. Tuchow, 768 F.2d 855, 865 n. 10 (7th Cir. 1985). Because Mitchell fails to establish specifically how he would be prejudiced by joinder with Oglesby, we hold that the district court did not abuse its discretion in denying his motion to sever.

C. The Motion for Judgment of Acquittal and the Sentence.

Mitchell argues that his motion for judgment of acquittal should have been granted because the government relied on an in-court identification procedure instead of out-of-court line-up or photographic identification procedure. According to Mitchell, an in-court identification is inherently untrustworthy and should not be the basis of a conviction. Additionally, he argues that a key government witness lied and another witness presented contradictory testimony. These arguments were previously used by co-defendant Oglesby in his companion case. We rejected similar claims there, Oglesby, 764 F.2d at 1278-79, and do the same here. In taking the view most favorable to the government, there was substantial evidence to sustain the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Dennis, 737 F.2d 617, 619 (7th Cir. 1984).

Finally, the defendant argues that his sentence of twenty years constitutes cruel and unusual punishment. Mitchell notes that he has a record of only non-violent crimes, and that no one was injured in the crime under consideration. He contends these factors render the twenty-year sentence cruel and unusual punishment in violation of the Eight Amendment to the United States Constitution. The sentence given to Mitchell was within the statutory limit; the maximum sentence for a violation of 18 U.S.C. § 2113(a) and (d) together is a fine of $10,000 and 25 years' imprisonment. No fine was imposed. Moreover, the sentence was under 18 U.S.C. § 4205(a) permitting release on parole after serving one third of the sentence. "It is widely established that a district court has wide discretion in determining what sentence to impose," United States v. McCoy, 770 F.2d 647 (7th Cir. 1985) (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591, 30 L. Ed. 2d 592 (1972)), and as Mitchell's sentence was within the maximum provided by Congress, it is only subject to review on appeal for a manifest abuse of discretion. United States v. Carter, 720 F.2d 941, 951 (7th Cir. 1983).

Considering the violent nature of Mitchell's crime--he pointed a loaded .357 Magnum revolver at the bank's employees--along with his prior criminal record,⁵  this Court cannot say that the district judge abused his discretion in sentencing him to less than the statutory maximum or that the sentence was disproportionate to the severity of his offense. Compare Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Mitchell has simply failed to demonstrate that his sentence constitutes cruel and unusual punishment within the purview of the Eighth Amendment.

The judgment of the district court is

AFFIRMED.