United States v. Marlin Gougher

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2020
• Docket: 17-50436
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50436 18-50352 Plaintiff-Appellee, D.C. No. v. 3:14-cr-00635-WQH-1

MARLIN LEE GOUGHER, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted May 14, 2020 Pasadena, California

Before: COLLINS and LEE, Circuit Judges, and PRESNELL,** District Judge. Concurrence by Judge COLLINS

This case involves two consolidated appeals. The first is an appeal from

Marlin Lee Gougher’s (“Gougher”) convictions for distribution, receipt, and

possession of child pornography in violation of 18 U.S.C. § 2252. The second

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. appeals the denial of a motion to correct transcripts that were filed for the first

appeal. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

I. Gougher’s Representation

Gougher’s representation by counsel and his objections to that representation

appear to be based on his “sovereign citizen” beliefs. Sovereign citizens share a

common belief that the court system is “a vast governmental conspiracy” controlled

by complicated and enigmatic rules. United States v. Glover, 715 F. App'x 253, 256

n.2 (4th Cir. 2017). They generally take the position “that they are not subject to”

federal laws and proceedings. United States v. Mesquiti, 854 F.3d 267, 269-70 (5th

Cir. 2017). This creates a difficult balancing act for trial courts when considering

whether to allow criminal defendants with profoundly flawed views of the law to

represent themselves.

Gougher first argues that the district court violated his Sixth Amendment

rights by (1) allowing him to represent himself at the bail revocation hearing when

he had not yet made an unequivocal decision to represent himself, and (2) not

allowing him to represent himself at trial once he had made an unequivocal decision

to represent himself. We review waivers of counsel de novo. United States v.

Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004). The Ninth Circuit has “not yet clarified

whether denial of a request to proceed pro se is reviewed de novo or for abuse of

discretion.” United States v. Maness, 566 F.3d 894, 896 n.2 (9th Cir. 2009).

2 17-50436 “Whether to allow hybrid representation, where the accused assumes some of the

lawyer's functions, is within the sound discretion of the judge.” United States v.

Williams, 791 F.2d 1383, 1389 (9th Cir. 1986).

The first question is whether Gougher, as he argues, engaged in “self-

representation without counsel” at the revocation hearing. Gougher had the benefit

of counsel both prior to and during the revocation hearing. Because Gougher would

not permit his counsel to speak without interruption, the district court permitted

Gougher to assume some of counsel’s functions: questioning witnesses, making

objections, and giving oral argument. The Court also gave Gougher’s counsel the

opportunity to object, to cross-examine, and to give oral argument. At most,

Gougher’s participation created a hybrid counsel situation. The district court did not

abuse its discretion in permitting Gougher to participate.

The next question is whether Gougher made an unequivocal decision to

represent himself at trial and whether the district court violated his Sixth Amendment

rights by failing to honor that decision. “In order to deem a defendant's Faretta

waiver knowing and intelligent, the district court must [e]nsure that he understands

1) the nature of the charges against him, 2) the possible penalties, and 3) the ‘dangers

and disadvantages of self-representation.’” Erskine, 355 F.3d at 1167 (quoting

United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987)). The district court

denied Gougher’s request to represent himself at trial. Gougher had repeatedly

3 17-50436 insisted, and continued to insist, that he did not understand the nature of the charges

against him. A district judge cannot be expected to ensure that a defendant

understands the nature of the charges against him when the defendant repeatedly and

consistently refuses to acknowledge that he understands them.

Gougher also argues that the district court’s refusal to appoint substitute counsel

following Gougher’s bar complaint against his attorney violated the Sixth

Amendment. We review de novo claims “that trial counsel had a conflict of interest

with the defendant.” United States v. Nickerson, 556 F.3d 1014, 1018 (9th Cir.

2009). The Sixth Amendment is violated when an attorney has an actual conflict of

interest that adversely impacts his or her performance in a criminal case. United

States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998). Where, as here, the defendant

has been repeatedly uncooperative with successive counsel, we have declined to find

that an eve-of-trial filing of a bar complaint against the defendant’s latest counsel

gives rise to an actual conflict of interest that would require a substitution of

counsel. See United States v. Plasencia-Orozco, 852 F.3d 910, 916–18 (9th Cir.

2017). Beyond his mere filing of a bar complaint against his fourth appointed

counsel, Gougher does not otherwise explain why the district court should have

found an actual conflict. Accordingly, there is no basis for finding that the district

court’s refusal to appoint substitute counsel violated the Sixth Amendment.

II. Speaking in Court

4 17-50436 Gougher argues that the district court abused its discretion by prohibiting

Gougher from making statements during court proceedings. A represented defendant

does retain authority over some aspects of the case, such as whether to plead guilty,

to have a jury trial, to appeal, and to testify on his own behalf. United States v. Read,

918 F.3d 712, 720 (9th Cir. 2019). Beyond that, it was not an abuse of discretion for

the district court to otherwise insist that Gougher speak only through his appointed

counsel. See United States v. Williams, 791 F.2d 1383, 1389 (9th Cir. 1986) (district

court has discretion to deny “hybrid” representation in which defendant supplements

attorney’s representation). Moreover, Gougher cites no persuasive authority to

support his argument that the First Amendment somehow grants a criminal

defendant the right to speak at his trial outside the strictures of the applicable rules

of court.

III. Gougher’s Stricken Testimony

We review de novo comments on a criminal defendant’s failure to testify.

United States v. Inzunza, 638 F.3d 1006, 1022 (9th Cir. 2011). When the defendant

fails to object at trial, we review Fifth Amendment claims for plain error. United

States v. Sehnal, 930 F.2d 1420, 1426 (9th Cir. 1991).

Gougher contends that (1) the cross-examination about child pornography on

the computers and (2) the rebuttal argument that mentioned Gougher’s failure to say

5 17-50436 anything contradicting the government’s evidence both violated the Fifth

Amendment. But the Fifth Amendment privilege is not self-executing. A defendant

who wishes to avail himself of the privilege against self-incrimination “must claim

it or he will not be considered to have been ‘compelled’ within the meaning of the

Amendment.” Minnesota v. Murphy, 465 U.S. 420, 427 (1984) (quoting United

States v. Monia, 317 U.S. 424, 427 (1943)). Gougher voluntarily took the stand, and

at no point during his testimony did Gougher assert his Fifth Amendment privilege.

Thus, neither the cross-examination nor the rebuttal argument violated his Fifth

Amendment rights.

IV. The Motions for Discovery and Evidentiary Hearing about Current

NCIS Investigative Practices

We review district court discovery rulings for abuse of discretion. United

States v. Sellers, 906 F.3d 848, 851 (9th Cir. 2018). However, if the district court

applied the wrong legal standard, it necessarily abused its discretion. Id. at 852. We

review de novo the question of whether the district court applied the correct legal

standard. Id. at 851. Essentially, Gougher argues he was entitled to discovery that

could show that a different case, United States v. Dreyer, 804 F.3d 1266 (9th Cir.

2015), was wrongly decided. The district court did not abuse its discretion when it

found that such information was irrelevant to this case. And Gougher fails to

establish that the district court applied an incorrect legal standard. Accordingly, the

6 17-50436 district court’s denial of the motions for discovery and evidentiary hearing was not

improper.

V. Motion to Correct Transcripts

We will not disturb “a trial court’s factual finding that transcripts are accurate

and complete” unless clearly erroneous. United States v. Anzalone, 886 F.2d 229,

232 (9th Cir. 1989). Gougher argues that the district court erred in denying the

Motion to Correct Transcripts without first reviewing the recordings of the

proceedings. The district court stated that it reviewed Gougher’s proposed changes

and the response of the court reporter, and it found that the court reporter’s version

was accurate. We find no basis for concluding that the district court clearly erred in

denying Gougher’s requests for additional changes to the transcript. But, even if

there were errors in the transcript, Gougher has not made a showing of specific

prejudice, and thus he cannot prevail on this issue. United States v. Horob, 735 F.3d

866, 872 (9th Cir. 2013).1

AFFIRMED.

1 We deny Gougher’s motion in this court to make additional changes to the transcript (17-50436 Docket No. 18).

7 17-50436 FILED United States v. Gougher, Nos. 17-50436, 18-50352 NOV 19 2020 COLLINS, Circuit Judge, concurring in part and in the judgment: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur in the last paragraph of Section I of the memorandum disposition,

as well as in Sections II-V. As to the remainder of Section I, I concur only in the

judgment.

1. I do not join in the majority’s gratuitous observations, at the beginning of

Section 1, about whether Gougher subscribes to “‘sovereign citizen’ beliefs” and

about what such beliefs entail. See Mem. Dispo. at 2. Whether or not such beliefs

underlay Gougher’s behavior in court seems to me to be beside the point.

2. I agree that Gougher was not deprived of his Sixth Amendment right to

counsel at his bond revocation hearing, where the district court allowed Gougher to

question witnesses and to make objections. But I reach that conclusion for reasons

that differ from the majority’s rationale.

The majority contends that “Gougher’s participation created a hybrid

counsel situation” and that the district court “did not abuse its discretion in

permitting Gougher to participate.” See Mem. Dispo. at 3. In my view, the

majority’s reasoning begs the Sixth Amendment question. Assuming that the bond

hearing constituted a critical stage of the case at which Gougher had a Sixth

Amendment right to counsel, we made clear in United States v. Turnbull, 888 F.2d

636 (9th Cir. 1989), that “hybrid representation” is “acceptable only if the defendant has voluntarily waived [his right to] counsel”—at least where, as here,

“the defendant assumes any of the ‘core functions’ of the lawyer.” Id. at 638

(emphasis added). Thus, there still must be a predicate waiver of the Sixth

Amendment right to counsel in order to uphold a district court’s authorization of a

hybrid situation in which the defendant assumes the sort of central role that

Gougher did at the bond hearing. The majority cites nothing to support its

conclusion or to justify its disregard of the underlying Sixth Amendment issue and

Ninth Circuit precedent.

Although the record does not appear to demonstrate that the district court

conducted a proper Faretta colloquy at the bond hearing, United States v. Hayes,

231 F.3d 1132, 1136 (9th Cir. 2000), I nonetheless conclude that Gougher

effectively waived his Sixth Amendment right to counsel by his conduct at that

hearing. Gougher’s counsel had not been discharged, and Gougher therefore

remained represented by counsel during the hearing, but Gougher repeatedly

objected to his counsel’s participation. At the same time, Gougher conversely

insisted that he did not wish to proceed pro se. The district court’s handling of the

difficult situation created by Gougher’s conduct did not violate his Sixth

Amendment right to counsel. See United States v. Turner, 897 F.3d 1084, 1104

(9th Cir. 2018) (district court did not err in finding waiver of right to counsel

where defendant “‘manipulated the proceedings’ by vacillating between asserting

2 his right to self representation and his right to counsel”); United States v. Massey,

419 F.3d 1008, 1010 (9th Cir. 2005) (“Massey attempted to hinder his trial by

declining every constitutionally recognized form of counsel while simultaneously

refusing to proceed pro se. A defendant may not abuse the Sixth Amendment in

this way[.]”).

3. I also agree that the district court did not infringe Gougher’s

constitutional rights by refusing on the first day of trial to allow him to proceed pro

se. Again, however, my reasoning differs from that of the majority.

The majority concludes that the denial of self-representation was proper

based on the fact that Gougher refused to state that he understood the nature of the

charges against him. See Mem. Dispo. at 3–4. But there is no indication in the

record that Gougher did not understand either the elements of the crimes with

which he was charged or the nature of the charged conduct that he was alleged to

have committed. See United States v. Lopez-Osuna, 232 F.3d 657, 664–65 (9th

Cir. 2000) (waiver of counsel was sufficient under Faretta where defendant knew

the elements of the charge and the underlying violative conduct alleged). Rather,

Gougher’s comments made clear that he claimed not to understand why the

“United States”—which he characterized as an officious “corporation”—could

assert the authority to punish him at all. But that is not part of what Faretta

requires, because “there is a difference between agreeing with the charges and

3 understanding them.” Id. at 665. And if it really had been true that Gougher did

not understand the charged offenses, then “the district court should have informed

him of the pending charges before proceeding any further.” Id. at 664.

I nonetheless agree that the district court properly declined to allow Gougher

to proceed pro se based on the district court’s conclusion that Gougher was not

“able and willing to abide by the rules of procedure and courtroom protocol.”

Gougher concedes that this is a proper ground for denying the right to self-

representation, see Lopez-Osuna, 232 F.3d at 664, but he asserts that it was

“necessary to give self-representation a try before concluding [that] Gougher

would not respect courtroom decorum.” That is wrong. By the first day of trial,

there was already an extensive record of Gougher’s repeatedly inappropriate and

disruptive behavior throughout the proceedings below, and that record provided

ample grounds for the district court to deny Gougher’s request to proceed pro se.

For these reasons, I respectfully concur in part and in the judgment.