United States v. Theodore John Kaczynski

239 F.3d 1108, 2001 Daily Journal DAR 1601, 2001 Cal. Daily Op. Serv. 1264, 2001 U.S. App. LEXIS 2031, 2001 WL 114688
Court of Appeals for the Ninth Circuit·Decided February 12, 2001·No. 99-16531·Published·Cited by 102 cases

Opinions

Opinion by Judge RYMER; Dissent by Judge REINHARDT.

RYMER, Circuit Judge:

Theodore John Kaczynski, a federal prisoner, appeals the district court’s denial of his motion under 28 U.S.C. § 2255 to vacate his conviction. In that motion, Kaczynski alleges that his guilty plea to indictments returned against him as the “Unabomber” in the Eastern District of California and in the District of New Jersey, in exchange for the United States renouncing its intention to seek the death penalty, was involuntary because his counsel insisted on presenting evidence of his mental condition, contrary to his wishes, and the court denied his Faretta request to represent himself.2 Having found that the Faretta request was untimely and not in good faith, that counsel could control the presentation of evidence, and that the plea was voluntary, the district court denied the § 2255 motion without calling for a response or holding a hearing.

This court issued a certificate of appeal-ability. The government submits that Kaczynski is foreclosed from raising the voluntariness of his plea on collateral review because he did not do so on direct appeal, but we conclude on the merits that the district court did not err. Therefore, we affirm.

I

The facts underlying Kaczynski’s arrest (April 3, 1996) and indictment for mailing or placing sixteen bombs that killed three people, and injured nine others, are well known and we do not repeat them here. Rather, we summarize the pre-trial proceedings that bear on the voluntariness of Kaczynski’s plea.

The California Indictment (returned June 18, 1996) charged Kaczynski with four counts of transporting an explosive in interstate commerce with intent to kill or injure in violation of 18 U.S.C. § 844(d); three counts of mailing an explosive device with intent to kill or injure, in violation of 18 U.S.C. § 1716; and three counts of using a destructive device during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The New Jersey Indictment (returned October 1, 1996) charged one count of transporting an explosive device in interstate commerce with intent to kill or injure, in violation of 18 U.S.C. § 844(d); one count of mailing an explosive device with intent to kill or injure, in violation of 18 U.S.C. § 1716; and one count of using a destructive device during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).3 The government gave notice of its intent to [1111]*1111seek the death penalty under both indictments on May 15,1997.

The California Indictment was assigned to the calendar of the Hon. Garland E. Burrell, Jr. Quin Denvir, the Federal Public Defender for the Eastern District of California, and Judy Clarke, the Federal Public Defender for Eastern Washington and Idaho, were appointed to represent Kaezynski. They filed motions to suppress evidence in March, 1997, which were denied.

On June 24, 1997, Kaezynski filed a notice under Fed.R.Crim.P. 12.2(b) of his intent to introduce expert testimony of his mental condition at trial.4 According to his § 2255 motion, Kaezynski consented to the notice reluctantly and only to allow evidence relating to his “mental condition” — not to a “mental disease or defect.” He also avers that the purpose of the notice was to allow psychologist Julie Krie-gler, who did not think that he suffered from serious mental illness, to testify.

Jury selection began November 12. Six hundred veniremen were summoned, and 450 questionnaires were filled out. Voir dire of 182 prospective jurors took sixteen days over the course of six weeks.

Kaezynski alleges that he learned in the courtroom on November 25 that his attorneys intended to portray him as suffering from major mental illness (schizophrenia), but that he was deterred from bringing his conflict with counsel to the court’s attention as counsel were in plea negotiations with the government.5 Evidently by December 17" it had become clear that Kae-zynski would not go for an unconditional plea and the government would not accept a conditional one. In the meantime, Kae-zynski was giving thought to whether he wanted Tony Serra, a San Francisco lawyer whom he believed would not employ a mental state defense, to represent him. On December 16, he received a letter indicating that Serra would be available, but on December 17 Serra withdrew from consideration.

On December 18, Kaezynski’s counsel gave the district court three letters in which Kaezynski explained that he had a conflict with his attorneys over the presentation of a mental status defense. The next day the court held an ex parte, in camera conference with Kaezynski and counsel, as a result of which he and they undertook to confer over the weekend. On December 22, Clarke and Denvir advised the court that a compromise had been worked out: They agreed to withdraw the Rule 12.2(b) notice and not to present any expert mental health testimony at the guilt phase of the trial, while Kaezynski accepted their control over the presentation of evidence and witnesses to be called, including mental health expert witnesses and members of Kaezynski’s family, in order to put on a full case of mitigation at the penalty phase. Kaezyn-ski told the court that he was willing to proceed with his attorneys on this basis, and that “the conflict at least is provisionally resolved.” In response to the court’s query, Kaezynski also said that he did not want to represent himself. Jury selection was then completed and (to allow for the holidays) opening statements were set to begin January 5,1998.

On January 5, Kaezynski told the court that he wished to revisit the issue of his relations with his attorneys. He said that he had learned from a preview of the opening statement the evening before (January 4) that counsel intended to present non-expert evidence of his mental state in the guilt phase. Clarke and Denvir [1112]*1112explained that they intended to introduce evidence of Kaczynski’s physical state, living conditions, lifestyle, and writings to show the deterioration of his mental state over the 25 years he lived in Montana. Kaczynski also raised for the first time with the court the possibility that he might want to have Serra replace Denvir and Clarke. The district court continued the trial to January 8, and appointed Keven Clymo as “conflicts” counsel for Kaczynski.

Another hearing was held January 7. Kaczynski withdrew his January 5 request for Serra to represent him because Clymo had convinced him it would not be in his best interests; however, later the same day, Serra “faxed” a letter indicating that if Kaczynski’s present lawyers were re-cused, he was willing to substitute in.

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United States v. Theodore John Kaczynski, 239 F.3d 1108, 2001 Daily Journal DAR 1601, 2001 Cal. Daily Op. Serv. 1264, 2001 U.S. App. LEXIS 2031, 2001 WL 114688 (9th Cir. 2001).

239 F.3d 1108 (United States v. Theodore John Kaczynski) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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