Aaron Hodge v. United States

414 F.2d 1040, 1969 U.S. App. LEXIS 11635

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 3, 1969
• Docket: 20517
• Status: Published

Opinions

MERRILL, Circuit Judge:

In this case a panel of this court, by divided vote, reversed the District Court. This court, in banc, then took the case on rehearing. We affirm.

Appellant stands convicted of the transportation of a stolen motor vehicle in foreign commerce in violation of 18 U.S.C. § 2312. On this appeal he contends that he was, without intelligent waiver, deprived of the assistance of counsel.

The record shows that on arraignment February 8, 1965, five days after filing of the indictment, counsel was appointed to represent appellant and continued to represent him up to the original trial date, March 16, 1965. On that date appellant expressed the desire to represent himself and trial was continued to March 23, 1965, before a different judge, with appellant then representing himself. Although acceding to appellant’s insistence upon self-representation, the court on March 16 nevertheless directed appointed counsel to be present to lend such assistance as would be desired by appellant. At all stages appellant was either represented by counsel or had counsel available for assistance.

The case thus does not present the question of waiver of right to counsel in the typical trial setting exemplified by Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), where counsel was neither requested nor offered and the defendant contended that he was ignorant of his right to be represented.

Here appellant clearly knew of his right. His “waiver” lay in his assertion of his right to represent himself¹—a right the court could not properly deny. 28 U.S.C. § 1654; Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967); Reynolds v. United States, 267 F.2d 235 (9th Cir. 1959). The question, then, is whether his assertion of this right was “intelligent.”² In this context we take this to mean whether he was sufficiently informed of the consequences of his choice. In our judgment he was.³

The question before the judge was not whether the defendant was professionally capable of acting as his own lawyer. New defendants are, and the right of self-representation is not so conditioned. The question was simply whether the defendant understood the charges against him and was fully aware of the fact that he would be on his own in a complex area where experience and professional training are greatly to be desired.

Appellant contends that the warnings of the judges were not sufficient since the standard to be followed by a judge in communicating intelligence is that set forth in Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948):

“To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.”

We note first that appellant makes no showing that he was prejudiced by the failure of the District Court to follow Von Moltke. Nowhere is there any suggestion that specific Von Moltke information was unknown to him and that, possessed of that information, he would have changed his mind about representing himself. The record convincingly suggests the contrary.⁴

However, we do not in any event regard Von Moltke as the appropriate guide to the trial judge in a situation such as this. While its language was couched in general terms of right to counsel and a waiver of such right, the court in Von Moltke was clearly concerned with waiver of counsel occurring contemporaneously with a plea of guilty. The informational items recited as essential to an intelligent waiver relate to such a plea and serve to assure that a defendant understands the consequences of confessing guilt and that he knows enough of the law to be able intelligently to reach the conclusion that he is guilty under the law.

Such colloquy has no place in a case where guilt is denied and an offer of counsel is rejected. Attempts to relate it to such a case would seem to subject the defendant to a questionable pretrial probing of his defenses.

We conclude that appellant waived his right to be represented by counsel by an intelligent assertion of his right of self-representation.

Appellant contends that he was, in any event, entitled to be represented by counsel at the time of sentencing. In absence of any indication to the contrary by appellant, the court was entitled to assume that the waiver was still in effect. White v. United States, 354 F.2d 22 (9th Cir. 1965). Furthermore, appellant’s advisory counsel was present on that occasion for such use as appellant chose to make of him. His failure to utilize him, with full knowledge of his right to do so, amounted to waiver.

Appellant contends that refusal to release him on his own recognizance pending trial was an abuse of discretion and prejudiced him in preparation for trial. Abuse of discretion does not appear. Appellant had counsel for five weeks prior to the request, which was made on the scheduled date of trial. Appellant was from out of state, with no local contacts, family or otherwise, willing to vouch for him. On these facts, the judge could properly conclude that it was not reasonably certain that the defendant would appear.

Appellant contends that he was not permitted to call witnesses and was forced to go to trial unprepared. The record does not bear this out. On March 23 appellant expressed a desire to subpoena certain witnesses and the judge stated that the motion would be taken up later. After ascertaining the Government’s readiness to proceed, appellant and his advisory counsel were taken into chambers and the judge invited appellant to present his motions. After conferring with advisory counsel appellant moved to disqualify the judge before whom he had appeared on March 16. He was advised that he would not be tried by that judge and was asked if he had any further motions to make. Appellant stated that that was all and indicated his readiness to proceed to trial. Nothing was then said about obtaining witnesses. We find no error in proceeding to trial under these circumstances.

Appellant complains that certain evidence came in that would have been held inadmissible had objection been interposed. This, of course, was a risk he took in representing himself.

Appellant complains that it was somehow unfair for the Government to introduce testimony regarding his veracity after he had testified. This is without merit. Such testimony is admissible once the defendant takes the stand. Sawyear v. United States, 27 F.2d 569 (9th Cir.), cert. denied, 278 U.S. 650, 49 S.Ct. 96, 73 L.Ed. 562 (1928); United States v. Walker, 313 F.2d 236 (6th Cir.), cert. denied, 374 U.S. 807, 83 S.Ct. 1695, 10 L.Ed.2d 1031 (1963).

We find no merit in the contention that appellant was prejudiced by the presence of advisory counsel. Bayless v. United States, 381 F.2d 67 (9th Cir. 1967).

Judgment affirmed.

1 . It may be contended that we are not confronted with a question of waiver at all, since the court in effect rejected the waiver tendered by appellant and preserved his constitutional right by making assistance of counsel available at all times. We choose, however, to treat the assertion of the right of self-representation as presenting the question of waiver irrespective of the presence of advisory counsel.

2 . The basic rule stated in Johnson v. Zerbst, 304 U.S. at page 464, 58 S.Ct., at p. 1023 is:

“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The 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, experience, and conduct of the accused.”

3 . On March 16 the following colloquy took place:

“MR. CURTO: I want to make a motion to be relieved in this case, your Honor. As I explained to the Court this morning, the defendant feels there has been an abridgement of his constitutional rights in not being brought to trial timely.

We have had a difference of opinion this morning, so I will let the defendant speak for himself on this matter.

THE DEFENDANT: Due to some circumstances that have come up in the case, I would like to fight it myself because of a witness or two that’s supposed to appear against me, and feel that I have a better chance there than an attorney that don’t know the circumstances of the witnesses. These are witnesses that are supposed to appear in court to testify against me, supposedly.

THE COURT: Do you think you can handle your case?

THE DEFENDANT: I’m no lawyer, but I’m willing to give it a try because my freedom is at jeopardy.

THE COURT: Do you understand anything about the procedure?

THE DEFENDANT: I have been through a couple of small county courts.

THE COURT: Do you know how to select a jury?

THE DEFENDANT: Yes, sir; I think I could select my own jury. I realize that most of it is at the discretion of the Court, but due to some peculiarities in this case, I would like to get a mixed jury, if it is possible.

THE COURT: Well you can advise your counsel as to what, who you want on the jury. You have a right to exercise certain peremptory challenges and you can advise your counsel as to what jurors you wish to keep.

THE DEFENDANT: I just felt that because of one witness, that I had rather he the counsel for my own purposes.

THE COURT: I don’t quite understand what the witness has got to do with it.

THE DEFENDANT: I have just— I understand I have a right to be my own counsel for the defense, and I am asking for that right; that’s all.

THE COURT: You have that right, certainly you do.

THE DEFENDANT: Yes.

THE COURT: And I will allow you to do it.

I think you are making a mistake, but that’s up to you. Mr. Curto is a very competent lawyer.

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THE COURT: I will allow you to act as your own counsel, but I would request that Mr. Curto be present to aid you and help you in procedural matters. But I want you to know that I think you are at a distinct disadvantage in acting as your own attorney. I say that from experience and I know.

THE DEFENDANT: Yes, your Honor.

THE COURT: And if you gum up your case, there is no one to blame but yourself. When a case is gummed up, usually they blame their attorney, but you can’t do that.”

On March 23 the trial judge (a different judge) informed appellant at the outset:

“I am not going to lead you by the hand, here — I am not going to try the case. You were given a chance to have a lawyer. You are going to have a lawyer to talk to. If you get in trouble, you are going to have to bail yourself out. I can’t be your lawyer and the judge, too.”

4 . Throughout trial appellant showed himself knowledgeable in matters of substantive law and procedure. In his opening statement he indicated that he intended, in his defense, to show lack of possession, lack of knowledge, and that his actions took place in Mexico and thus were extraterritorial and beyond federal jurisdiction. In closing argument he explained to the jury that the Government’s burden was to establish every element of the offense beyond a reasonable doubt. He then explained each essential element of a Dyer Act offense and reiterated his defenses. On sentencing he exhibited his awareness of the maximum penalty.

Here it is entirely proper to look beyond the judge’s remarks to ascertain intelligence. See United States v. Plattner, 380 F.2d 271, 276 (2d Cir. 1964). While in Heiden v. United States, 353 F.2d 53 (9th Cir. 1985), approved in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), this court held that such might not be done, we were there dealing with acceptance of a guilty plea under the express requirement of Rule 11, F.R.Cr.P.