United States v. C. Scott Flewitt, and B. Todd Flewitt

874 F.2d 669, 1989 U.S. App. LEXIS 6449, 1989 WL 47580

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 10, 1989
• Docket: 86-5018
• Status: Published

Opinions

HUG, Circuit Judge:

Scott Flewitt and his sons, Todd Flewitt and Michael Flewitt, were indicted for 12 counts of mail fraud in violation of 18 U.S.C. § 1341. Scott Flewitt was convicted of 11 counts, Todd Flewitt of 7 counts, and Michael Flewitt was acquitted. The principal issue in this appeal is whether the constitutional rights of Scott and Todd Flewitt to self-representation were denied. We hold that they were and therefore reverse and remand for a new trial.

The appellants were doing business under the name of Concept Marketing International (“CMI”). This was a multilevel marketing company designed to sell a variety of household products. A prospective investor paid a membership fee. There were two ways that the investor could profit from involvement in CMI. He could receive commissions from the sales of products; he could also receive bonus payments from other investors he brought into the company and additional bonuses from investors brought in by those he had recruited.

At the initial arraignment, appellants were both represented by the same retained counsel. Thereafter, the retained counsel was relieved and separate counsel were appointed for each defendant. A superseding indictment, which made minor changes, was filed. A trial date was set for April 23, 1985. At a pretrial status conference on April 15,1985, the appellants moved for appointment of new counsel because of a conflict. The appellants contended this was a complex case requiring counsel to review many documents in a warehouse in Pasadena, California. They contended there was no way their counsel could be ready for trial in a week. Counsel confirmed the conflict over the examination of these business records. In the alternative, the appellants moved to represent themselves. The court denied the request for discharge of counsel and self-representation because the appellants would not be ready for trial.

The appellants renewed their request on April 23, stressing the importance to the defense of the documents in Pasadena, and stating,

[T]he most important part of our case is in the documentation. The jury must see the proof of our words, in other words. That proof is in large quantity and lies in a warehouse belonging to the postal department in Pasadena. Because defense counsel has not obtained a court order to make this documentation available to both counsel and defendants at the same time, we can’t show the steps taken in the course of our business to illustrate for the jury that it was without criminality.

The district court granted the appellants’ request to represent themselves and continued the trial for three months to allow them time to prepare for trial. Advisory counsel and an investigator were appointed to assist in trial preparation. There then ensued a series of requests by appellants, who were in custody, to be transported to the warehouse in Pasadena to go through the records. Appellants contended that the investigator and advisory attorney would not be able to make sense out of the records without the appellants sorting and organizing them because they were in disarray after the Government had seized them. These motions were denied. The Government applied ex parte for an order to transport appellants to the courthouse lockup to review certain original discovery materials in the possession of the Government. The appellants were transported pursuant to the order that was issued, but they refused to look at the discovery made available by the Government. The appellants renewed the motion to be transported to the Pasadena warehouse and sought a continuance because they had not been granted access to the records. The trial was continued to October 8. The appellants also requested disqualification of the judge, which request was denied after a hearing before a different district judge.

At a status conference on September 30, 1985, one week before the scheduled trial date, the appellants persisted with their request to be taken to review the documents. The judge pointed out the difficulty and the number of hours of the marshals’s time that would be required. Scott Flewitt replied: “Your honor, we are not asking for hundreds of hours, really. We are asking to be taken to the records, to categorize them at least so someone can find what we are requesting.” The judge requested an offer of proof of what documents they needed. They stated they needed financial records, business records, and customer files. The judge then terminated the appellants’ pro se status stating:

For reasons known best to yourselves, you are not ready for trial and you will not get ready to trial nor will you do the necessary preparation in order to be ready for trial....

But the trial is going to go forward. I am going to find that you are incapable of effectively representing yourselves. You are bright individuals. I don’t know if it is the complexity of the case or whether you are, as I suspect, maybe attempting to make a record that will bring about a successful appeal.

But I am going to rule that you are not capable of further self-representation. I am going to terminate your representation of yourselves, and I am going to re-appoint standby counsel. That order is effective forthwith.

The appointed counsel for each of the appellants proceeded to take over the trial responsibilities. The trial began on October 8, 1985. The appellants were convicted after a jury trial and each sentenced to 15 years of incarceration, and a consecutive 5-year term of probation.

The dissent argues that the defendants did not make an unequivocal demand to proceed pro se. The Government does not advance this argument on appeal and, thus, may have waived that argument. In any event, it is our view that the Government did not raise this issue on appeal because it lacks merit. The court conducted an extensive hearing on September 9, 1985, the express purpose of which was to determine whether the defendants wished to accept the assistance of the counsel the court had appointed for them or to proceed pro se. The district judge had appointed counsel that he had found to be competent and informed the defendants that he did not intend to substitute new counsel. The Flewitts contended that these attorneys were ineffective because they had not done things the Flewitts thought should have been done. The court had found, however, that the counsel were proceeding competently and effectively and that any difficulty was due to the Flewitts’ lack of cooperation.

The court asked numerous direct questions making it very clear that the defendants had to make a specific choice. For example, the court stated:

You have a right to counsel and you have a right to represent yourself. Which of those two alternatives do you choose now?

(T.R. 150.) The response of the two Flew-itts was that they wished to represent themselves, as the choice was put to them, but that they still contended that the failure to appoint new counsel for them was a denial of effective assistance of counsel. As between the choice of accepting the continued services of the counsel that had been appointed for them or representing themselves, they chose the latter. The assistant U.S. attorney expressed some concern. The court then stated:

I don’t agree with you [the assistant U.S. attorney] that it is not a valid waiver if they have only waived because they don’t like their other attorney. I think it is a valid waiver if they know what they are doing.

If they understand they have the right to counsel [and] they reject the offer of counsel by the court. They are mentally able to represent themselves. They choose to represent themselves. I don’t think the motive is that important.

(T.R. 152-53.) We agree with this conclusion of the district court. The district court then made a specific finding:

As of right now I think you are capable of representing yourselves, I believe and I find that you have made an effective waiver of your 6th amendment right to counsel, and there is no reason at the present time why you should not represent yourself.

(T.R. 155.)

The dissent cites to earlier portions of the transcript of the hearing (T.R. 133, 149-154), in which the Flewitts were expressing that the denial of the counsel of their choice was the reason they were choosing to proceed pro se. However, after all the discussion, the finding of the court was as expressed above, that they had made an effective election to proceed pro se. There is no indication in the record that the district court at any time made a contrary finding. The district judge did not terminate the pro se status because the election to so proceed was equivocal (nor does the Government even advance that argument on appeal). Rather, the court found that they had made an effective election to proceed pro se, but terminated it at the status conference on September 30, 1985, for the reason that they were not prepared to go to trial and were not capable of representing themselves. This is clearly expressed in the quotation from the transcript (T.R. 198) on page 4, of this opinion. We are therefore concerned in this appeal with the reason for the termination of the right of self-representation that was unequivocally elected. This was based not on any equivocation in election but on the conduct of the defendants thereafter in failing to make adequate preparation for trial.

The conduct of the defendants was no doubt exasperating, and the district judge displayed admirable patience in granting various requests of the defendants including requests for continuances. However, the issue before us is whether this conduct justified the district court in terminating the defendants’ constitutional right of self-representation.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court stated in no uncertain terms that the Sixth Amendment confers the right to self-representation at trial. The Court explained:

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. ... The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

Id., 95 S.Ct. at 2533.

The Government contends that the defendants’ discovery requests were unreasonable and that they failed to utilize discovery the Government voluntarily provided. However, the defendants’ constitutional right of self-representation may not be abrogated because they were uncooperative with the Government in utilizing discovery opportunities or in making vague and poorly formulated motions. This may be poor defense tactics, and it well could have resulted in adverse rulings. However, if they chose to represent themselves and, after the reasonable opportunities afforded by the court, chose tactics that left them poorly prepared to defend, that was their choice to make.

The district judge terminated the pro per status of the appellants because they were “not capable of further self-representation.” It was not that they had been or would be disruptive; it was that they had not and would not properly prepare for trial. The judge did not indicate that they had been contempuous or failed to obey the rulings of the court.

The Government contends that this constitutes disruption of the trial and thus justifies revocation of pro per status. It relies on footnote 46 in the Faretta opinion, which states:

We are told that many criminal defendants representing themselves may use the courtroom for deliberate disruption of their trials. But the right of self-representation has been recognized from our beginnings by federal law and by most of the States, and no such result has thereby occurred. Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 [1970]. Of course, a State may — even over objection by the accused — appoint a “standby counsel” to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary. [Citation omitted.]

The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of “effective assistance of counsel.”

Id., 95 S.Ct. at 2541 n. 46. This footnote speaks of disruption in the courtroom. Pretrial activity is relevant only if it affords a strong indication that the defendants will disrupt the proceedings in the courtroom. The Supreme Court never suggested that the defendant’s right to self-representation could be terminated for failure to prepare properly for trial. Rather, it stated that “[t]he right of self-representation is not a license to abuse the dignity of the courtroom.” Id. The Court was concerned only with the possibility of defendants “[using] the courtroom for deliberate disruption of their trials.” Id.

Indeed, the case cited by the Court in the footnote, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), merely held that a defendant may be removed from the courtroom during his own trial when he “engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.” Id. at 338, 90 S.Ct. at 1058. The Court noted in that case, “It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.” Id. at 343, 90 S.Ct. at 1061 (emphasis added).

In sum, the footnote in Faretta states only that a defendant’s right to self-representation does not allow him to engage in uncontrollable and disruptive behavior in the courtroom. We do not construe the footnote to mean that a defendant’s Sixth Amendment right to self-representation — so vigorously upheld by the Supreme Court in Faretta — may be extinguished, as it was in this case, due to the defendant’s lack of preparation prior to trial. The Court expressly denies in the footnote that the right of self-representation is “a license not to comply with relevant rules of procedural and substantive law.” Faretta, 95 S.Ct. at 2541 n. 46. There is no indication that a failure to comply with such rules can result in a revocation of pro se status. Instead, the footnote indicates the Court’s meaning to be that a defendant cannot claim “ineffective assistance of counsel” flowing from his failure to follow the rules of procedure or from his misinterpretation of the substantive law. If he chooses to defend himself, he must be content with the quality of that defense.

Of course, a request for self-representation need not be granted if it is intended merely as a tactic for delay. United States v. Smith, 780 F.2d 810, 812 (9th Cir.1986); Armant v. Marquez, 772 F.2d 552, 555 (9th Cir.1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1502, 89 L.Ed.2d (1986). Moreover, a court may consider events preceeding a motion for self-representation to determine whether the request is made in good faith or merely for delay. Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982). Thus, if the district judge determines that the defendants’ request is part of a pattern of dilatory activity, the court has the discretion to deny the continuance and require the defendant to proceed to trial on the scheduled date either with the counsel designated or pro se. A defendant proceeding pro se, or requesting to proceed pro se, is subject to the same good faith limitations imposed on lawyers, as officers of the court.

Pro se status does not excuse a criminal defendant from complying with the procedural or substantive rules of the court. Faretta, 422 U.S. at 835 n. 46, 95 S.Ct. at 2541 n. 46. A defendant who knowingly and intelligently assumes the risks of conducting his own defense is entitled to no greater rights than a litigant represented by counsel, United States v. Merrill, 746 F.2d 458, 465 (9th Cir.1984), cert. denied, 469 U.S. 1165, 105 S.Ct. 926, 83 L.Ed.2d 938 (1985), unless the court’s duty to liberally construe pro se pleadings is considered an enhanced right. Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)). That obligation is fully satisfied by the appointment of standby counsel, whose presence is intended “to steer a defendant through the basic procedures of trial” and “to relieve the judge of the need to explain and enforce basic rules of courtroom protocol_” McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed.2d 122 (1984). The pro se litigant may, of course, refuse to follow his standby counsel’s advice, assuming he even asks for such assistance. That choice, as with all the other strategic decisions made by a pro se litigant, is his own. Having refused this assistance, however, he may not be heard to complain later that the court failed to protect him from his own ineptitude.

The Flewitts’ behavior prior to trial was neither a contemptuous refusal to comply with court orders nor such as to indicate that they would be uncontrollable at trial or abuse the dignity of the courtroom. The district court revoked their pro se status, in large part, because the defendants had not progressed in preparing their defense and had not availed themselves of discovery procedures. The Government seems to contend that the appellants were disruptive because of their continual motions to obtain access to the Pasadena warehouse and their failure to utilize the discovery materials offered by the Government. This is not the kind of disruption meant by the Supreme Court. At most, the defendants simply failed to prepare their defense diligently and made motions for relief to which they may not have been entitled. Had they proceeded to trial pro se, such failure to prepare for trial probably would have worked to their detriment. This, however, is not grounds for retracting their pro se status. The Court in Far-etta emphasized that the Sixth Amendment does not permit denying a defendant the right to self-representation on the basis that the defendant cannot represent himself with the degree of competence a lawyer might have. The Court stated:

It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.”

Faretta, 95 S.Ct. at 2540-41 (citation omitted). It is clear from this statement of the Court that the Flewitts’ failure to engage in meaningful discovery, their failure to make use of the resources available to them, and their general failure to prepare for trial do not constitute a permissible basis for denying them their right to self-representation.

Another justification offered for terminating the defendants’ pro se status warrants separate comment. The Government places emphasis on the fact that the Flewitts refused to cooperate with or properly utilize advisory counsel, and even ceased communicating with advisory counsel for approximately two months. We do not view this as a justifiable rationale for depriving the Flewitts of their right to self-representation. It indeed would be a paradox to justify revoking a defendant’s pro se status on the basis that the defendant failed to consult counsel.

In sum, the district court erred by not allowing the defendants to proceed pro se at trial. Faretta does not grant the court free rein to terminate a defendant’s pro se status based on pretrial conduct of this sort. The defendants’ actions in this case did not rise to the level of obstructionist behavior that threatened the dignity of the courtroom. They simply failed to prepare their defense. That alone cannot justify revoking their constitutional right to self-representation.

REVERSED and REMANDED for a new trial.