Unpublished Disposition, 874 F.2d 817 (9th Cir. 1987)

MEMORANDUM^** 

Marcellus Warren appeals his conviction by jury of being a felon in possession of a firearm in violation of 18 U.S.C.App. II Sec. 1202(a) and 18 U.S.C. § 924. He contends that he did not knowingly and intelligently waive his sixth amendment right to counsel. We affirm.

FACTS AND PROCEEDINGS

On March 6, 1986, Warren was arrested by Beverly Hills police officers on a charge of illegal possession of a firearm. He was originally charged in state court with illegal possession of a handgun. The charge was dismissed on the state's motion prior to trial.

On March 3, 1987, Warren was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C.App. II Sec. 1202(a) and 18 U.S.C. § 924. At his arraignment, Warren stated that he wished to represent himself. The district judge strongly urged him to allow her to appoint counsel for him. Warren declined to allow her to do so, and the district judge permitted him to appear pro se, but appointed Deputy Federal Public Defender Elsa Leyva as advisory counsel. Leyva served as advisory counsel throughout the district court proceedings.

On March 27, 1987, Warren moved for a continuance of the trial date. At the hearing on the motion for a continuance, the district judge again urged Warren to allow her to appoint counsel for him, which he declined. The district court denied the motion.

Following a jury trial, Warren was found guilty as charged and the district court sentenced him to 15 years imprisonment. Warren timely appeals.

DISCUSSION

This court reviews de novo whether a defendant knowingly and intelligently waived his right to counsel. Harding v. Lewis, 834 F.2d 853, 857 (9th Cir. 1987), cert. denied, 109 S. Ct. 182 (1988).

A criminal defendant has the constitutional right to be represented by counsel or to represent himself, if he so chooses. Faretta v. California, 422 U.S. 806, 807 (1975); United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987). If a defendant chooses to represent himself, his decision to waive his right to counsel must be made knowingly and intelligently. Balough, 820 F.2d at 1487. The preferred procedure to ensure that a waiver is knowingly and intelligently made is for the district court to discuss in open court with the defendant (1) the dangers of self-representation, (2) his understanding of the charges and (3) the possible penalties. Harding, 834 F.2d at 857.

Nevertheless, the failure of the district court to discuss each of these documents in open court will not necessitate an automatic reversal where the record as a whole reveals a knowing and intelligent waiver. Balough, 820 F.2d at 1488. To determine whether the waiver was knowing and intelligent absent an explicit discussion of these three elements, this court looks to " 'the particular facts and circumstances surrounding (the) case, including the background, experience and conduct of the accused.' " Id. (quoting United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982). This exception is to be applied only in rare cases. Id.

Here, the district judge did advise Warren of the dangers of self-representation. At the arraignment, the district judge urged Warren to allow her to appoint counsel for him because, "... even if you have been representing yourself in this court, the procedures are somewhat complicated, and I can't help you out." When Warren informed the court that he could have difficulty in making a suppression motion in writing, the court answered: "That, among other reasons, is why I am strongly urging you to get a lawyer." See Cooley v. United States, 501 F.2d 1249, 1250-51 n. 2 (9th Cir. 1974) (court found that appellant knowingly and voluntarily waived his right to counsel where district judge "advised appellant that he was in an area where he needed professional competence ... (and) that appellant ... misunderstood, in his opinion, the legal issues involved.") Moreover, in the original state court proceedings, the state judge explicitly informed Warren that there were dangers in representing himself and that he would be expected to know all the law involved in his case. See United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982) (whether the defendant had been advised of the risks of self-representation in prior proceedings is relevant to a determination of whether he knowingly and voluntarily waived his right to counsel).

The district judge, however, did not discuss the nature of the charges and the possible penalties involved should Warren be convicted. Upon review of the record as a whole, we conclude that Warren nonetheless sufficiently understood these two elements. At the hearing on Warren's pretrial motion for a continuance, Warren accurately stated that he faced a possible mandatory 15-year sentence. At the same hearing, Warren accurately stated that he had been charged in state court with being an ex-felon in possession of a firearm, and that he was in federal court on the same charges. Moreover, by Warren's own admission, he had been representing himself in court for approximately 15 years.

Because the record reveals that Warren was advised of the dangers of self-representation, and understood the nature of the charges against him and the possible penalties, we conclude that Warren knowingly and voluntarily waived his right to counsel.

AFFIRMED.