United States v. Wes Hamman

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 25, 2018
• Docket: 17-30176
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30176

Plaintiff–Appellee, D.C. 3:16-cr-00185-SI-1

v.

WES EDWARD HAMMAN, MEMORANDUM*

Defendant–Appellant.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted June 6, 2018 Portland, Oregon

Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,** District Judge.

Indicted for bank robbery, Wes Hamman eventually asked to represent

himself. Pursuant to Faretta v. California, 422 U.S. 806 (1975), the judge held a

hearing, told Hamman of the risks, and then let him. He was convicted. On appeal,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. we address two purported errors in the Faretta hearing. Hamman does not otherwise

dispute that his choice to represent himself was knowing and intelligent: he was

generally informed of the right to counsel, the nature of the charges against him, the

possible penalties, and the dangers of self-representation. See United States v.

Johnson, 610 F.3d 1138, 1144 (9th Cir. 2010); United States v. Erskine, 355 F.3d

1161, 1167 (9th Cir. 2004). Because we consider the legal sufficiency of a Faretta

hearing, our review is de novo. Erskine, 355 F.3d at 1166–67.

1. We reject Hamman’s argument that the Faretta hearing should have

included an explicit inquiry into his competency to represent himself. There may be

room between competency to stand trial and competency to represent one’s self, see

Indiana v. Edwards, 554 U.S. 164, 172–74 (2008), but we see nothing in the record

that would warrant the inquiry Hamman argues was required. Hamman had reported

psychological problems, but he had also been medically evaluated and deemed

competent to stand trial. He expressed himself coherently at the Faretta hearing,

denied mental impairment, and even explained the strategic reason why he wanted

to represent himself: so that he could tell his story in his statements as an attorney

without risking cross-examination as a witness.1 (And Hamman has never claimed

that he actually was incompetent to represent himself.)

1 The judge fully counseled Hamman about the risk of this strategy.

2 2. Hamman also argues that the Faretta hearing should have examined

whether he was dissatisfied with his appointed lawyer—already his second—and

whether he wanted a new one. A third lawyer, Hamman claimed after the fact, is

what he had really wanted. But he did not ask for one because, when the judge had

appointed the second lawyer weeks earlier, the judge had warned that he would not

appoint a third.

We reject this argument, too. Hamman explained why he wanted to represent

himself: so he could tell his story without risking cross. He cannot expect the district

court to have intuited that this was really a desire for a new lawyer. If that is what he

wanted, he should have asked. Cf. Bell v. United States, 382 F.2d 985, 986 (9th Cir.

1967) (“If trial counsel desired to do what it is now represented that he wished to do,

he should have made the judge aware of his intention.”). Even if the district judge

had decided that he would not appoint a third lawyer, perhaps circumstances had

changed. And even without changed circumstances, judges are always “free, in the

exercise of sound judicial discretion, to alter” pretrial rulings. Luce v. United States,

469 U.S. 38, 41–42 (1984). The case Hamman cites, United States v. Velazquez,

855 F.3d 1021, 1035 (9th Cir. 2017), is distinguishable because it concerns a judge’s

duty to inquire when she is told of problems in the attorney–client relationship,

which did not happen here.

AFFIRMED.