US v. David Parker, No. 12-4886 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4886 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID ISAAC PARKER, a/k/a David Green, a/k/a David Smith, a/k/a Jay Smith, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. J. Frederick Motz, Senior District Judge. (8:11-cr-00459-JFM-1) Argued: May 15, 2014 Before WILKINSON and Senior Circuit Judge. Decided: THACKER, Circuit Judges, June 16, 2014 and HAMILTON, Affirmed by unpublished per curiam opinion. ARGUED: Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia, Maryland, for Appellant. Paul Nitze, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Deborah A. Johnston, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A superseding federal grand indictment jury against returned a Appellant three-count David Isaac second Parker ( Appellant ) charging him with conspiracy to import cocaine in an amount greater than five kilograms, in violation of 21 U.S.C. §§ 960 and 963; importing more than 500 grams of cocaine, in violation of 21 U.S.C. § 960; and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). Following a jury trial, where Appellant served as his own counsel, Appellant was convicted of all three counts. district On appeal, Appellant raises a single issue: whether the court conducted a constitutionally adequate inquiry regarding Appellant s desire to serve as his own counsel. Because Appellant s election to proceed pro se was clear and unequivocal, as well as knowing and intelligent, we conclude that the district court conducted a constitutionally adequate inquiry regarding Appellant s desire to serve as his own counsel. Therefore, we conclude the district court did not err in granting Appellant s request to waive counsel and proceed pro se. Accordingly, we affirm. I. Appellant was first arrested on July 20, 2011, when the United States Postal Service executed a controlled delivery of a package containing cocaine 2 that was addressed to, and accepted by, Appellant. charged in followed a by Subsequent to his arrest, Appellant was sealed a criminal complaint sealed indictment on on August July 22, 26, 2011, 2011, and a superseding indictment on November 2, 2011. Finally, on May 23, 2012, second Appellant indictment, the was charged charging in the document upon which superseding the trial ultimately proceeded. Throughout the pendency of this case, Appellant had multiple court appearances in front of both the magistrate court and the district court, and had the benefit of both appointed and retained counsel. During these appearances, Appellant was repeatedly advised of his rights. appearance in magistrate court For example, at an initial on October 24, 2011, where Appellant was represented by retained counsel, the court engaged in a lengthy explanation with Appellant about his constitutional rights as well as the nature of the charges against him. During this colloquy, Appellant continually insisted that he did not understand even the most basic concepts. prompted the court to observe, playing games with the [c]ourt. 1 I Appellant s assertions think J.A. 26. 1 that [Appellant] is Shortly thereafter, Citations to the J.A. refer to the Joint Appendix filed by the parties in this appeal. 3 Appellant ultimately stated that he understood, but just did not agree. [APPELLANT]: I am reading the Indictment[;] I understand what you are saying. But as far as the wording on the Indictment I don t agree with. THE COURT: That is fair. Nothing wrong with you not agreeing with it, that is exactly where your Counsel wants you to be. Not a problem. But do you understand what they are claiming you have done wrong? (Pause) [APPELLANT]: Yes, I understand for the record on this paper what they are accusing me of, yes. Id. at 28. Further, Appellant told the magistrate court that he had no mental condition, illness, or defect that affected his judgment. Appellant 20, December appeared motions 2011 before hearing the to district address a court at a suppression motion filed by Appellant s retained counsel. At this hearing, Appellant s the Appellant retained wished to counsel proceed represented pro se. to According court to that counsel, Appellant desired to litigate motions he had previously filed pro se which presented a sovereign citizen defense. After denying those motions, the district court inquired at length of Appellant as to whether he wished to continue serving as his own counsel. 4 THE COURT: [Your attorney] has expressed on your behalf that you want to represent yourself in this matter. Is that true? [APPELLANT]: Yes. THE COURT: You understand that you have a right to be represented by counsel, and that these are legal issues in which counsel are trained to represent the client s interest, which would include, you know, moving to suppress any statements that were made or any evidence that was seized. Do you understand that? [APPELLANT]: You re comprehend? Yes. asking me do I . . . [APPELLANT]: [My attorney] stated earlier that he would like to take a back seat and just be my advisor. THE COURT: Is that, is that -- do you want him as standby counsel, then, essentially, to advise you, and have you represent yourself? [APPELLANT]: Yes. . . . THE COURT: But, Mr. Parker, as I understand it, with the advice of [your attorney], the questions you want to ask, you want to ask them yourself and you want to pursue any motions that you deem appropriate, is that what I understand you want to do? Or do you want to have him ask the questions of the witnesses? [APPELLANT]: If I can have more time to get myself prepared for that, I would like to do that myself. 5 THE COURT: We will postpone the hearing . . . . But the question is when we do have the hearing, when we do it, do you really want to put yourself in the position where you are asking the questions of the witnesses? [APPELLANT]: Yes. THE COURT: And assuming, which I have no idea because I haven t heard the evidence yet, but assuming I deny the motions, do you want to represent yourself at trial as well? [APPELLANT]: Yes. THE COURT: And you understand that by proceeding in this way, you are, although [your attorney] is there to advise you, I mean, there are certain, I mean, I m not going to let you testify from the counsel table. I mean, if you want to testify, you re going to have to take the witness stand yourself and be subject to the penalties of perjury, if you choose to testify. Of course, you don t have to testify if you don t want to. But you understand that you can t essentially testify by asking questions of the witnesses. Do you understand that? [APPELLANT]: I comprehend well. J.A. 52-55. Per Appellant s request, the district ultimately appointed retained counsel to serve as standby counsel. After Appellant advised the court that he was taking medication for bipolar disorder, the court ordered a competency evaluation. Following his competency evaluation, Appellant appeared before the district court again on April 27, 2012, for another motions hearing. Because Appellant s retained counsel, 6 now serving as his standby counsel, was extremely late, the court commenced the hearing with counsel, who was still a great distance from admonished the courthouse, counsel for his on the telephone. irresponsibility, The and court Appellant stated he no longer wished for retained counsel to serve as standby counsel. The district court again confirmed with Appellant that he wanted to serve as his own counsel. Appellant if he wished to continue After the court asked to represent Appellant responded, I can t represent myself. myself. J.A. 62. to advise him about representing himself? in an I m going to be Clearly frustrated, the court responded, I don t know what I m supposed to advise you. engaged himself, extensive colloquy with What am I supposed Id. The court then Appellant about his understanding of the nature of the charges against him and his desire to serve as his own counsel. the matter claiming he Id. understand. by 63. at Appellant again frustrated comprehend[ed] Appellant but did explained not that comprehend[ing] means he intelligently hear[s] what is being said. Id. The court then explained to Appellant, THE COURT: You are facing a serious charge and you re subject to very serious penalties, including a $100 special assessment, which I don t think was mentioned. . . . That s trivial compared to the prison sentence you face. So whether you comprehend or you understand, the fact 7 of the matter is you ve been examined and have been found competent to stand trial. And also, you had a lawyer, who I really don t think has been very good, to tell you the truth. I don t know whether you re indigent or not, but I ll arrange to have counsel appointed to represent you, if you want. I don t want any injustice done in this case. And I want you to understand that you are subject to a very serious charge, and you re subject to very serious penalties, and that this case is going to proceed in accordance with the law and in accordance with the Federal Rules of Criminal Procedure, which are not easy to understand in all respects, [and] the Federal Rules of Evidence. If you want to proceed representing yourself, you have an absolute right to do so. I can t stop you. On the other hand, I think that -- my own judgment is you would be well advised to have a lawyer representing you. Do you want to proceed with or without a lawyer? [APPELLANT]: Without. Id. at 64-65. The court then proceeded to conduct a hearing on Appellant s suppression motion in which Appellant served as his own counsel and made many objections. After denying Appellant s suppression motion, the court again discussed Appellant s desire to serve as his own counsel: [THE COURT:] As I say, if you want to represent yourself, you re absolutely free to do so and I am not going to do anything to prevent you from doing so. On the other hand, I want to make sure that your interests are properly represented. And I 8 take it -- I don t know. Do you still, do you want a lawyer or you don t want a lawyer? [APPELLANT]: No, I do not. J.A. 91-92. Appellant then confirmed several more times that he wished to serve as his own counsel. court found that Appellant Therefore, the district voluntarily decided to represent himself, stating, I make that finding. I make it reluctantly because I want the defendant s rights to be protected. But it could not be more clear that he wants to proceed pro se without representation of counsel or the assistance of standby counsel. And I so find. . . . There s already been a competency evaluation. We had the doctor examine Mr. Parker, and he found him competent to stand trial. I can t do any more. Id. at 94. 2 On July 30, 2012, the first day of Appellant s trial, before empaneling the jury, the district court again engaged in a lengthy discussion with Appellant and his appointed standby counsel regarding Appellant s wishes to proceed pro se. having been through numerous colloquies on several Despite occasions with the court, Appellant asserted that he did not understand 2 Although Appellant continually asserted at this hearing that he did not want standby counsel, new standby counsel was appointed to him and a notice of appearance for standby counsel was entered on June 12, 2012. 9 anything. J.A. 110. In response to his continued assertions, the court stated, We have a finding, because there were allegations, there were assertions made earlier in the proceedings that Mr. Parker, quote, did not understand , we had an examination. And the conclusion of the examination is that Mr. Parker was competent to understand the proceedings against him. That is the record and we are proceeding on that basis. Continued assertions or allegations that I don t understand do not change that finding. . . . I mean, the result of that finding has all kinds of legal effects itself. If I were to find that you didn t understand the proceedings against you -- and I have no reason to think you don t understand. You just aren t happy. Id. at 132. The court then thoroughly explained to Appellant the trial process, including picking a jury, opening statements, witness testimony, the role of standby counsel, and what the jury was permitted to consider. During trial, Appellant participated in jury selection, gave an opening statement, cross-examined witnesses, made numerous objections to the Government s evidence, raised a suppression issue with regard to the timing of the warrant, and made a closing argument. After three days of trial, on August 1, 2012, the jury found Appellant guilty of all counts. The district court sentenced Appellant on October 26, 2012, to 121 months imprisonment. This timely appeal followed. 10 II. It is clear [w]e review a district court s denial of a defendant s right to self-representation de novo. United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005) (emphasis supplied). Appellant contends we should also review the district court s decision to allow Appellant to proceed pro se de novo. See, e.g., United States v. Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997) ( Determination of a waiver of the right to counsel is a question of law, and thus we review it de novo. (internal citations omitted)). The Government counters that Appellant raises this issue for the first time on appeal, and thus, our review is only for plain error. See, e.g., United States v. Bernard, 708 F.3d 583, 588 (4th Cir. 2013) (applying plain error review because Appellant raised the issue of competency to waive the right to counsel for the first time on appeal). We need not and do not decide the question of which standard of review argument fails when is appropriate measured against here because either Appellant s standard. See, e.g., United States v. Stanley, 739 F.3d 633, 645 (11th Cir. 2014) (declining to select a standard of review when a defendant s challenge to the validity of his waiver of right to counsel failed under both plain error and de novo review). For that the reason, we examine the constitutional 11 adequacy of court s inquiry into Appellant s desire to serve as his own counsel by the less deferential of the two standards, that is, de novo. III. We begin our analysis with the fundamental tenet that a criminal defendant representation. has a Sixth Amendment right to self- United States v. Bernard, 708 F.3d 583, 588 (4th Cir. 2013); see also Faretta v. California, 422 U.S. 806, 819 (1975). A defendant seeking to represent himself may waive the right to counsel and proceed at trial pro se only if the waiver is (1) clear and unequivocal, (2) knowing, intelligent, Bernard, 708 F.3d at 588.3 and voluntary, and (3) timely. However, the right to self-representation is not absolute, and the government s efficiency of the interest trial at in ensuring times outweighs interest in acting as his own lawyer. marks omitted). Ultimately, [t]he the integrity the and defendant s Id. (internal quotation determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, 3 At the outset, it is important to identify that unlike in Bernard, Appellant does not claim that he was not competent to represent himself at trial or not competent to waive his right to counsel. Appellant argues only that his waiver was neither (1) clear and unequivocal; nor (2) knowing and intelligent. 12 experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see also United States v. Singleton, 107 F.3d 1091, 1097 (4th Cir. 1997). Moreover, waiver of counsel while is a trial knowing and court must determine intelligent, no if a particular interrogation of the defendant is required, so long as the court warns the defendant of the dangers of self-representation such that his choice is made with his eyes open. United States v. King, 582 F.2d 888, 890 (4th Cir. 1978) (quoting Faretta, 422 U.S. at 835); see also Iowa v. Tovar, 541 U.S. 77, 88 (2004) ( We have not . . . prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. ). As we have stated, the court must assure itself that the defendant knows the charges against him, the possible punishment and the manner in which an attorney can be of assistance. The defendant must be made aware that he will be on his own in a complex area where experience and professional training are greatly to be desired. King, 582 F.2d at 890 (internal citations omitted). Here, Appellant argues the district court failed to ensure that he actually desired to represent himself, and further, that he actually comprehended his right to counsel in an adequate fashion so as to enter a constitutionally effective waiver of his right to counsel. 13 A. Clear and Unequivocal First, Appellant contends the district court misunderstood some of his statements as a request to represent himself. simply Appellant s did not Br. 10. understand. Instead, Id. at Appellant he According 11-12. argues to Appellant, this is evidenced by his continued assertions of the same. This argument is contrary to the record. repeatedly, court clearly, appearances consistently and if and he directly wished clearly asked at Appellant was several to represent answered in different himself, the and he affirmative. Specifically, the district court asked Appellant multiple times whether he wished to represent himself at both of the motions hearings on December 20, 2011, and April 27, 2012, as well as on the first day of trial on July 30, 2012. In each of the many instances Appellant was questioned, he confirmed that he wanted to represent himself. For example: THE COURT: [Y]ou want to represent yourself in this matter. Is that true? [APPELLANT]: Yes. J.A. 52. THE COURT: [D]o you want yourself at trial as well? [APPELLANT]: Yes. Id. at 54. 14 to represent [THE COURT:] Do you want to proceed with or without a lawyer? [APPELLANT]: Without. Id. at 65. [THE COURT:] Do you still, do you want a lawyer or you don t want a lawyer? [APPELLANT]: No, I do not. Id. at 91-92. THE COURT: Now, what role would you [standby counsel] to play in the trial? like [APPELLANT]: None. Id. at 111. THE COURT: Mr. Parker, do you want [standby counsel] to represent you [APPELLANT]: No, sir. THE COURT: as full counsel? [APPELLANT]: No. THE COURT: No? [APPELLANT]: No, sir. Id. at 121. Based on the record before us, there is no question Appellant s waiver of his right unequivocal. 15 to counsel was clear and B. Knowing and Intelligent Next, Appellant argues the district court failed to ensure that he comprehended what representing himself entailed, rendering constitutionally infirm his waiver of his right to counsel. This argument is likewise contrary to the record. When Appellant first expressed his desire to represent himself at the December 20, 2011 hearing, the district court explained at length what that would require, i.e., presenting motions, questioning witnesses, and presenting evidence. Then, before empaneling the jury on the first day of trial, the district court spent significant time confirming Appellant s desire to represent himself and explaining the particulars of each phase of the trial. the court s We therefore have little trouble concluding that colloquy with Appellant was constitutionally sufficient, and that Appellant certainly made his choice with his eyes open. Faretta, 422 U.S. at 835 (internal quotation marks omitted). 4 We therefore conclude Appellant s election to proceed pro se was not only clear and unequivocal, but also knowing and 4 In attempt to support his argument to the contrary, Appellant simply cherry-picks snippets of the district court s conversation with him. However, when viewing the record as a whole, it is clear the court s conduct was more than constitutionally adequate. 16 intelligent. The record reflects that at the time he waived his right to counsel, Appellant understood the legal proceedings and was aware of the nature of the charges against him and the penalties he faced if convicted, even though he often claimed he did not understand. On multiple occasions, Appellant was informed of the perils of serving as his own counsel and exactly what was involved in undertaking such a task. warnings, Appellant Appellant demonstrated himself by witnesses, elected that presenting raising to proceed he was an capable opening objections, pro and Despite these se. Moreover, of representing statement, questioning presenting a closing argument. IV. Faced with a difficult situation, the district court did all it could constitutional rights. in this case to protect Appellant s A trial court evaluating a defendant s request to represent himself must traverse a thin line between improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation. Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1995) (en banc) (internal quotation marks and alterations omitted). In traversing this line here, the district court went so far as to provide Appellant with the added safeguard and 17 assistance of standby constitutionally Beckton, 740 required F.3d 303, counsel, to 307 do even so. (4th Cir. though See it United 2014) was not States v. ( [A] pro se defendant has no right to standby counsel when he chooses to proceed pro se. ). For the foregoing reasons, the judgment of the district court is AFFIRMED. 18

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