US v. James Venable, No. 08-4871 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4871 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES EUGENE VENABLE, a/k/a James E. Venable, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:08-cr-00199-RLW-1) Submitted: February 23, 2010 Decided: April 14, 2010 Before KING and GREGORY, Circuit Judges, and Joseph R. GOODWIN, Chief United States District Judge for the Southern District of West Virginia, sitting by designation. Reversed and remanded by unpublished opinion. Judge Gregory wrote the opinion, in which Judge King and Judge Goodwin joined. Pleasant S. Brodnax, III, LAW OFFICE OF PLEASANT S. BRODNAX, Washington, D.C., for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. GREGORY, Circuit Judge: Defendant James Eugene Venable ( Venable ) appeals his conviction, claiming that the district court violated his Sixth Amendment right to counsel in not obtaining a voluntary knowing waiver and forcing him to proceed pro se. and We agree and reverse his conviction. I. On April 21, 2008, Venable was indicted on one count of possession violation of of a firearm/ammunition 18 U.S.C. by § 922(g)(1). a convicted One day felon, later, in Venable received appointed counsel from the Federal Public Defender s Office. 2008, He then pled not guilty. Venable numerous requested claims, including new In a motion dated May 20, appointed that: (1) counsel, months have asserting gone by without counsel doing as he wanted; (2) counsel refused to call Venable s former attorney about immunity Venable allegedly received at the Commonwealth s Attorney s Office; (3) counsel refused to investigate Venable s claim that he received immunity when his home was searched; (4) counsel and Venable can t see eye to eye ; and (5) he [found] it very hard to communicate 2 with counsel and wanted a new attorney not from the Federal J.A. 23-24. 1 Public Defender s Office. At the hearing on his motion, Venable stated that he did not feel comfortable with counsel and that, although he had nothing personal against counsel, they were not seeing eyeto-eye on things. J.A. 29. After hearing several similar statements, the court denied Venable s motion for new counsel, explaining counsel, that he comfortable while did not with, defense counsel. and Venable did have right a that J.A. 30. the have to court a right counsel had to appointed he appointed feel[s] capable Without conducting any colloquy with Venable about waiver of his right to counsel and without giving Venable the choice of proceeding with the counsel the court had appointed, the court ordered Venable to proceed pro se: Well Mr. Venable, the Constitution guarantees you the right to have counsel appointed. The Court very carefully appoints lawyers that are competent and capable of handling the type case that is brought against you. The Constitution also gives you an absolute right to represent yourself, and my policy has always been, and I stick to it in any number of these cases, that where I have appointed competent counsel to represent a defendant there is nothing in the Constitution that says that you are entitled to a lawyer that agrees with you, that you feel comfortable with, compatible with, that you have personality fits and that sort of thing. So I am now denying your motion to replace the counsel that you have, but I 1 Citations to J.A. __ refer to the Joint Appendix filed by the parties upon appeal. 3 will keep her in the case on a stand-by basis. And you are now pro se, and you get to represent yourself. And she is not to participate in your case unless you specifically request her. J.A. 29-30. reiterated At its the ruling conclusion on the of the motion hearing, for new the court counsel and encouraged him to enter into a plea agreement: Mr. Venable let me suggest that it would be in your best interest to read what appears to be a plea agreement that has previously been negotiated, but read it over and see if it serves your best interest, because you get so many advantages out of something like this that you can t believe it. And you will have stand-by counsel, and she will talk to you. And I am satisfied that she is more than competent to handle cases of this nature. She has had any number of them before me and my colleagues, so your motion for new counsel is denied. You are basically now pro se, but you will have stand-by counsel. And you can, if you feel that you are getting in over your head and you need her assistance, she will be required to give it to you. Do you understand that? J.A. 35. Although Venable responded that he understood, the court never warned him of the dangers of self-representation and never indicated that Venable had a choice to continue with his appointed counsel rather than represent himself. In an order issued later that day, the court clarified that Venable could continue to be represented by appointed counsel. After the government filed increasing the number guns of a J.A. 37. superseding Venable was indictment charged with possessing, Venable appeared pro se before the district court to be arraigned. At the arraignment, 4 Venable again complained about standby counsel, I had asked counsel to help me get my witnesses and all that, and she stated when we was [sic] here that I am on my own, that she wasn t going to help me. 48. J.A. The court responded that it had ordered standby counsel to carry out Venable s requests for assistance and that Assistant Federal Defender Robert Wagner ( Wagner ) agreed his office would assist Venable. On July 7, 2008, Venable filed one of his many pro se motions, this time asking for new standby counsel. He stated that he became Pro Se with out requesting for such status, and the ineffective counsel . . . became standby counsel; who still refuses to help Venable. J.A. 51. On a separate motion the same day, entitled Motion to Object, Venable claimed that he [a]t no time elected to proceed Pro Se, Nor [sic] did he ever waived [sic] his Federal Constitutional Amendment under the 6 Six [sic] Amendment Right. J.A. 56. On July 23, 2008, the appointed standby counsel moved to withdraw because the attorney-client irreparable [sic] dissolved. that responding to J.A. 90. Venable s relationship [had] She informed the court allegations would breach the attorney-client privilege, and that such response would likely be detrimental to the client. Venable appeared pro se J.A. 89. the following day on a motions hearing and to be arraigned on a second superseding indictment, 5 which again increased the number of guns charged. The court granted standby counsel s motion to withdraw but added for the record that counsel had provided effective assistance. 95. J.A. The court then appointed Wagner as standby counsel and turned to Venable s motion to suppress. After a confused cross- examination of a government witness and an order that crossexamination end, Venable stated that, I would like to point out that I am not an attorney. make sense of all of this. And I am fighting hard to try to J.A. 124. At the conclusion of the hearing, Wagner raised concern that he [didn t] believe that [Venable] ever specifically requested that he represent himself and instead had simply asked for new appointed counsel. 131. J.A. The court held that: I ruled earlier that [Venable] had a right to represent himself, or he had a right to work with counsel. He elected not to work with counsel that I had ruled was competent to represent him. And so it follows that I then ruled that he elected to go pro se. And while he didn t specifically say those magic words, this Court ruled that his actions speak louder than words. J.A. 131-32. an attorney. really Venable himself responded that he was asking for J.A. 132. insisting on a The court told Venable that he was right to pick-and-choose appointed counsel, to which Venable stated, That ain t what I did. 133. However, the court continued: That is the sense of it. But you have no such right. You are entitled to a competent lawyer that the Court 6 J.A. designates to represent you. Once that designation is made, smart defendants will cooperate with their competent lawyer and let that lawyer represent them and take charge of the case. You elected not to do that, so I have ruled because you refused to abide by the rules of the Court and accept a competent attorney[,] then the only other option is to proceed pro se. And that is the option that you now have. And I won t ever readdress the issue of you getting another lawyer. Do you understand that? J.A. 133. Venable replied, No, sir. The court, after ordering the court in recess, stated that Venable still [had] the option to cooperate with Mr. Wagner. J.A. 133. After seven additional pro se motions, the court issued an order in which the Court FINDS that at a status hearing held on June 4, 2008, the defendant waived his Sixth Amendment right to counsel and J.A. 135. irrevocably chose to represent himself pro se. On August 11, 2008, Venable proceeded to represent himself at trial. After proceedings in which Venable constantly expressed his confusion, the jury found him guilty. Wagner subsequently filed a motion requesting that Venable undergo a mental health evaluation for the determining mitigation evidence at sentencing. purpose of On January 21, 2009, the court ordered a mental health evaluation of Venable. During the sentencing hearing, the government informed the court that the evaluation intellectual found functioning. that And Venable it says has his a low level of problem-solving, reasoning, and judgment are likely to be impaired as a result. 7 J.A. 289. The report concluded that given [Venable s] limited cognitive functioning[,] realistic goal. Venable suffered J.A. from self-representation 346. Based severe mental on may its not assessment deficiencies, the be a that court granted Venable a downward variance from the guideline range of seventy-seven to ninety-six months to a sentence of sixty months in prison. Venable timely appealed his conviction, claiming that the court violated his Sixth Amendment right to counsel in failing to obtain a valid waiver and forcing him to proceed pro se. II. Determination of a waiver of the right to counsel is a question of law, and thus we review it de novo. United States v. Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997) (citation omitted). III. a. Although a defendant may waive his right to counsel, the courts entertain every reasonable presumption against the waiver of this fundamental constitutional right. United States v. Johnson, 659 F.2d 415, 416 (4th Cir. 1981). waiver to be valid, it must be 8 shown In order for a that the defendant intentionally relinquished a known right. Id. Thus, [w]aiver of the right to counsel, as of constitutional rights in the criminal ac[t] process done generally, with circumstances. must sufficient be a knowing, awareness of intelligent the relevant Iowa v. Tovar, 541 U.S. 77, 81 (2004) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). It is the government s burden to prove that Venable waived his right to counsel. (1977). See Brewer v. Williams, 430 U.S. 387, 404 Here, the government concedes that because the district court did initially err in ordering the defendant to represent himself without giving him the choice of retaining his existing counsel, and defendant never about defendant s provided the any dangers conviction must of be meaningful explanation self-representation, vacated. Respt. s to . . . Br. 32. Because the government agrees that Venable did not intentionally and knowingly waive his right to counsel, it follows that it did not meet its burden of proving the validity of such waiver. Therefore, although typically the government s confession of error does not relieve this Court of the performance of the judicial function, Young v. United States, 315 U.S. 257, 258 (1942), the admission of error in this case requires that we reverse Venable s conviction. Even putting aside the government s concession, plainly did not waive his right to counsel. 9 Venable Nothing in the record can be construed as a voluntary waiver. The basis for the court s forcing Venable to proceed pro se was a handwritten motion in which Venable expressed discomfort with his appointed counsel. Nothing in this note or Venable s argument to the court demonstrates a clear and unequivocal waiver of the right to counsel. himself. Venable not once expressed a desire to represent Rather, Venable repeatedly asserted that he never requested to proceed pro se and did not understand why he had no representation. Even if he had expressed a desire to represent himself, such waiver would not have been knowingly and intelligently made because the court failed to inform Venable of his options or conduct any inquiry into whether Venable waived the right to counsel. While neither the Supreme Court nor the Fourth Circuit has mandated the exact type of inquiry a court must conduct to determine if a defendant has waived the right to counsel, see Tovar, 541 U.S. at 88, some inquiry must occur so that [the district judge] may know, and the record may demonstrate, beyond cavil, that an accused knows that he has a right to employ and consult with intelligently an attorney . . . relinquishes that and that right. States, 371 F.2d 930, 934 (4th Cir. 1966). include [w]arnings of the pitfalls 10 of he voluntarily Townes v. and United This inquiry should proceeding to trial without counsel. Tovar, 541 U.S. at 89 (internal quotation marks and citations omitted). Here, no warnings were given at all. Based on Venable s motion claiming differences with appointed counsel, the court, without further J.A. 30. it inquiry, Venable must proceed pro se. Although the court sought to clarify after the fact, initially gave representation. relevant Brady, found 397 Venable option other than self- Venable was not, as is required, aware of the circumstances. U.S. no at Tovar, 748). In 541 U.S. addition, at 81 despite (quoting Venable s numerous statements that he did not want to represent himself, the court did not inquire into whether Venable waived his right to counsel or whether Venable s waiver was voluntary, knowing, and intelligent. 2 Thus, the court violated Venable s Sixth Amendment right to counsel in forcing him to proceed pro se in the absence of a valid waiver. 2 The district court, in refusing to hear Venable s express desire to not waive his right to counsel, found Venable s actions [spoke] louder than words. J.A. 131-32. While some law outside this Circuit supports the general proposition that a defendant can waive the right to counsel without affirmatively invoking his right to self-representation, the same case law provides that waiver is only valid if knowingly and intelligently made. See United States v. Garey, 540 F.3d 1253, 1265-66 (11th Cir. 2008) ( [W]hen an indigent defendant rejects competent, conflict-free counsel, he may waive his right to counsel by his uncooperative conduct, so long as his decision is made with knowledge of his options and the consequences of his choice. ). 11 b. Although both parties agree that this case should be remanded, they differ on the appropriate relief. The government argues not that according the to mental any health statutory evaluation authority, was and that conducted on remand, Venable s competency to stand trial should be evaluated under 18 U.S.C. § 4241. We need not decide whether the court took proper notice of the evaluation at issue because we do not consider the propriety of district court Venable s is, of sentence. course, free Likewise, to conduct although a the competency hearing on remand, such issue is beyond this appeal. On the other hand, Venable argues that we should dismiss his case with prejudice, but such remedy is not appropriate for the Sixth Amendment violation before us. IV. Based on the foregoing analysis, we reverse Venable s conviction and remand the case for a new trial. REVERSED AND REMANDED 12

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