CA10 - Pro Se (Sporadically) TP sentence upheld

[jcolvin2]

PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 08-5128
ROBERT S. MILES,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 4:08-CR-00015-JHP-1)
Submitted on the briefs*:
Julia L. O’Connell, Federal Public Defender, (Barry L. Derryberry, Research &
Writing Specialist; Shannon McMurray, Assistant Federal Public Defender, with
her on the brief), Office of the Federal Public Defender, Tulsa, Oklahoma, for
Defendant - Appellant.
David E. O’Meilia, United States Attorney, (Kenneth P. Snoke, Assistant United
States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff - Appellee.
Before KELLY, LUCERO, and HARTZ, Circuit Judges.
_____________________
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HARTZ, Circuit Judge.
A jury in the United States District Court for the Northern District of
Oklahoma convicted Robert Steve Miles on nine counts of willfully filing false
income-tax returns. See 26 U.S.C. § 7206(1). The court sentenced him to 41
months’ imprisonment. On appeal he contends that he was denied the right to
self-representation during the period between the jury verdict and his sentencing
hearing. He seeks reversal of his sentence and a remand for resentencing. We
have jurisdiction under 28 U.S.C. § 1291 and affirm. The district court did not
deny Mr. Miles’s right to self-representation. It reasonably believed that he
waived his right to self-representation after the jury was dismissed, and it allowed
him to resume representing himself as soon as he reasserted his desire to proceed
pro se at his sentencing hearing.
I. BACKGROUND
Mr. Miles represented himself at his five-day jury trial. Public defender
Shannon McMurray acted as his standby counsel. The jury rendered its verdict on
April 25, 2008. After dismissing the jury, the district court set a sentencing
hearing for July 30 and announced that Mr. Miles would be remanded to the
marshal’s custody pending sentencing. McMurray interjected:
McMurray: Judge, we would—can I be heard on that? I don’t
know that the government—
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Court: Well, he hasn’t—I don’t know that—you have
standby counsel. Would you like to be heard or
your counsel indicates—
Mr. Miles: I’ll yield to counsel at this point.
Court: Are you now asking counsel to take over for you?
Mr. Miles: I think, at this point, yes.
R. Vol. III, Doc. 23 at 689 (emphasis added).
McMurray requested that Mr. Miles be allowed to remain free under the
same conditions as his pretrial release. She responded to the court’s questions
about his flight risk and danger to the community. The prosecutor objected to his
release. The court then expressed concerns that Mr. Miles did not consider
himself to be a citizen of the United States and that he had filed pleadings stating
that he did not recognize the court’s authority. The following exchange ensued:
McMurray: I don’t—my concern is he doesn’t truly know
what he filed. . . . Mr. Miles advises me that he’s
been making a record to try to get this case
dismissed prior to a jury trial and/or finding at
this point with the conviction. . . . I think
Mr. Miles is telling me he—for purposes of
sentencing and any future proceedings, he
recognizes the jurisdiction of the Court I think is
what he’s just told me.
Court: Most of this trial you’ve spoken for yourself. Is
that, what she tells me, true?
Mr. Miles: That’s correct. I mean, if I can talk. I don’t know
with her being counsel if I can talk or not.
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Id. at 698–99 (emphasis added). Mr. Miles proceeded to ask for leniency, and the
court agreed to release him on the condition that he be placed on electronic
monitoring for two weeks. At the end of the two weeks, the court would
reconsider the conditions of release.
A week later, on May 2, 2008, Mr. Miles filed a pro se motion for a new
trial. He contended (1) that he had been “denied Qualified Assistance of
Counsel” because McMurray had no experience in criminal tax cases, id. Vol. I,
Doc. 15 at 3; (2) that he had been charged with a nonexistent violation of the law;
and (3) that the district court did not have jurisdiction over him. McMurray then
filed a motion to withdraw as standby counsel because of the allegations against
her in Mr. Miles’s motion. On May 6 the court entered a minute order that stated:
“Defendant’s pro se Motion for New Trial is hereby stricken. Any further
pleadings shall be filed through counsel of record.” Id. at 10 (Docket Entry 93).
The court also entered a minute order finding McMurray’s motion moot.
Although Mr. Miles did not file an objection to the order striking his motion or
otherwise assert that he was representing himself, he filed another pro se motion
on July 23. The motion again challenged the jurisdiction of the district court,
repeating many of the arguments he had made in previous motions to dismiss.
At the sentencing hearing on July 30, McMurray announced that Mr. Miles
wanted to represent himself with McMurray as standby counsel. She and the
district court discussed what had happened at the previous hearing. As the court
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recalled, “[I]mmediately after the verdict came in, Mr. Miles requested that you
represent him. In other words, he—it was my memory that he changed your
status or requested the Court change your status from being stand-by counsel to
being—to representing him.” Id. Vol. III, Doc. 29 at 4. McMurray responded:
Your Honor, I certainly would defer to the Court’s recollection
and certainly the record’s recollection. I thought I had reached out to
the Court and to Mr. Miles. I could see that he was going into
custody. I honestly did not know, as an officer, that I was his lawyer
until he filed a motion for new trial calling into question some of my
ethics and, you know, professionalism. I then filed a motion to
withdraw and the Court struck the motion for new trial and then I
was on notice that I was counsel of record.
I—this is a difficult situation. I feel like I have got some
interest for myself that I need to look out for, but I also desperately
want to help Mr. Miles, but we have got some conflicting interests
here, as far as I can tell with my conversation with him previously
and today. So I’m at the—you know, at the Court’s . . .
Id. (emphasis added).
The court, McMurray, and Mr. Miles then engaged in the following
discussion:
Court: Well, I’m not trying to do anything other than
make the record clear, that up until—up until now,
as far as I know, Mr. Miles has not requested you
be relieved of your duties. He did request
specifically that you represent him. Whether he’s
now requesting that you be stand-by counsel
and—he’s responsible for his defense. What I’m
interested in knowing is, is he ready to change the
status back to where it was before the verdict.
McMurray: It’s my—yes. My conversations with Mr. Miles
are that he would want to proceed pro se with me
as stand-by. Certainly as stand-by, I’m prepared
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to talk with him and on behalf of him before the
Court, but I just wanted the record to reflect on
behalf of Mr. Miles that that would be his position
today.
Court: That you now become stand-by counsel; is that
correct?
McMurray: Yes, sir.
Court: Mr. Miles, is that your request?
Mr. Miles: I couldn’t hear everything, Your Honor.
Court: Well, let me see if I can go over it again. Do you
recall then, the day the verdict came in you
requested that counsel—that counsel no longer be
stand-by counsel, but that she represent you?
Mr. Miles: Yeah, at the heat of the moment it seemed to be
the expedient thing to do.
Court: No, no, no, not at the heat of the moment.
Mr. Miles: Yes, I did.
Court: That’s what you did?
Mr. Miles: Yeah.
Court: Okay. And now, today, you are requesting that
she revert to stand-by counsel, as she was during
the trial. Is that your request?
Mr. Miles: No, sir, it was not my understanding that she
continued as—to my understanding, that was
a—at one moment she represented me and then
she went back to being stand-by.
Court: You never asked that she be relieved of that
responsibility. It’s not, I don’t think, particularly
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material, other than it has been the Court’s
understanding that you haven’t asked that that—to
reform that request. It wasn’t a request for the
moment, it was a request that she represent you
until you—
Mr. Miles: Since I haven’t done anything in writing—it was
my understanding that that was just for that—at
that point in time.
Court: Well—or until you requested otherwise. It’s not,
I don’t think, of any great importance, other than
her status is now changing. For sure, today, you
are asking to represent yourself; is that correct?
Mr. Miles: I am, but I’m handicapped because—I guess
because of the confusion, we haven’t had a chance
to really verbalize over the last few weeks, which
probably should have happened and we—and we
haven’t been able to communicate.
Id. at 4–7 (emphases added). During the remainder of the proceedings Mr. Miles
acted pro se, with assistance from McMurray as standby counsel. Mr. Miles first
noted the jurisdictional motion that he had filed, and the court denied it, saying
that it had thought the pleading frivolous. The court then proceeded to hear from
the parties concerning sentencing, and imposed a 41-month term of imprisonment.
II. DISCUSSION
On appeal Mr. Miles contends that the district court erred by denying him
the right to self-representation during the period between dismissal of the jury and
the sentencing hearing. Although he argues that the denial of his right to selfrepresentation
would require automatic reversal because “‘its denial is not
1 The context of McKaskle was the conduct of proceedings during trial
before a jury. We cannot say with confidence that harmless-error analysis would
be improper in the present context, when the alleged denial of the right to proceed
pro se was only with respect to postverdict pleadings submitted to the court.
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amenable to “harmless error” analysis,’” Aplt. Br. at 16 (quoting McKaskle v.
Wiggins, 465 U.S. 168, 177 n.8 (1984)), we need not decide that issue because, as
we proceed to explain, there was no error.1
A defendant in a federal criminal case has a statutory and constitutional
right to self-representation. See 28 U.S.C. § 1654; Faretta v. California, 422 U.S.
806, 834–36 (1975). A defendant who chooses to represent himself is entitled to
do so if he is “aware of the dangers and disadvantages of self-representation,” id.
at 835, and makes this choice “knowingly and intelligently,” id. (internal
quotation marks omitted).
Mr. Miles asserts that he was denied his right to self-representation for a
period after his trial. He does not dispute that he sought to be represented by
counsel almost immediately after the jury returned its verdict, at the proceeding to
determine whether he would be incarcerated or placed on conditional release
while awaiting sentencing. In his view, however, once that proceeding was over,
he resumed representing himself, as he had during trial. The district court’s
contrary view was that he was represented by counsel from the time of the
postverdict proceeding until he insisted on self-representation at the sentencing
hearing.
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The issue before us is not whether Mr. Miles was “aware of the dangers and
disadvantages of self-representation,” id., or whether his election to represent
himself was “knowing[] and intelligent[],” id. (internal quotation marks omitted).
Rather, it is simply whether he indeed did elect to represent himself. Determining
what a defendant has elected to do regarding representation is a recurring
dilemma for the courts. If a court incorrectly determines that the defendant has
elected self-representation, it has deprived him of the constitutional right to be
represented by counsel. But if it incorrectly determines that the defendant has not
elected self-representation, it has likewise deprived him of a constitutional right.
Thus, “if a defendant in a criminal proceeding makes an equivocal demand on the
question of self-representation, he has a potential ground for appellate reversal no
matter how the district court rules.” United States v. Treff, 924 F.2d 975, 979
(10th Cir. 1991). To ameliorate this problem, and because a waiver of the right to
counsel should not be lightly inferred, see Brewer v. Williams, 430 U.S. 387, 404
(1977) (courts should “indulge in every reasonable presumption against waiver”
of the right to counsel), we have declared that a defendant’s “election to represent
himself must be clearly and unequivocally asserted,” Treff, 924 F.2d at 978
(internal quotation marks omitted). Other circuits agree. See United States v.
Proctor, 166 F.3d 396, 401 (1st Cir. 1999); Wilson v. Walker, 204 F.3d 33, 37 (2d
Cir. 2000); United States v. Peppers, 302 F.3d 120, 129 (3d Cir. 2002); Daniels v.
Lee, 316 F.3d 477, 489 (4th Cir. 2003); Brown v. Wainwright, 665 F.2d 607, 610
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(5th Cir. 1982) (en banc); United States v. Martin, 25 F.3d 293, 295 (6th Cir.
1994); Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992); Hamilton v. Groose, 28
F.3d 859, 861 (8th Cir. 1994); United States v. Bishop, 291 F.3d 1100, 1114 (9th
Cir. 2002); Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir. 1984); United
States v. Weisz, 718 F.2d 413, 425–26 (D.C. Cir. 1983).
By this standard, we must affirm the district court. At the postverdict
proceeding the court confirmed Mr. Miles’s intention by inquiring, “Are you now
asking counsel to take over for you?” R. Vol. III, Doc. 23 at 689. Mr. Miles
responded, “I think, at this point, yes.” Id. McMurray then argued to the court
that Mr. Miles should be allowed to remain free pending sentencing, and the court
asked Mr. Miles if the representations McMurray had made were true.
Mr. Miles’s response to the question provided further evidence from which the
court would naturally infer that he intended to waive his right to selfrepresentation:
After answering in the affirmative, Mr. Miles stated, “I mean, if I
can talk. I don’t know with her being counsel if I can talk or not.” Id. at 698.
Whether or not Mr. Miles’s subjective intent was to accept ongoing representation
by counsel, the district court reasonably drew this inference.
True, only a week later Mr. Miles submitted a pro se pleading to the district
court. But it is not at all uncommon for defendants represented by counsel to
submit their own pleadings. The act of filing such a pleading was not an
unequivocal signal that Mr. Miles had elected to represent himself. Moreover, the
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court’s minute order stated, “Defendant’s pro se Motion for New Trial is hereby
stricken. Any further pleadings shall be filed through counsel of record.” Docket
Entry 93. If Mr. Miles thought he was representing himself, he could have so
advised the court and requested it to reconsider his motion. He had shown no
shyness during the trial in asserting his rights. His failure to complain about the
court’s minute order could reasonably be construed as resolving any ambiguity
regarding whether he wanted to represent himself. Cf. Brown, 665 F.2d at 611
(silence in face of representation by counsel after assertion of the right to selfrepresentation
suggests waiver of that right).
Finally, Mr. Miles contends that the district court “contradicted” its minute
order by allowing Mr. Miles to file a pro se motion challenging the jurisdiction of
the court after it had stricken his pro se motion for a new trial. Aplt. Br. at 15.
The court did not immediately strike or rule on this motion, instead waiting until
the sentencing hearing to dispose of it summarily. But this conduct hardly
suggests that the court believed Mr. Miles to be representing himself. The motion
raised many of the same challenges to jurisdiction that Mr. Miles had raised, and
the court had ruled on, on several prior occasions. The court stated at sentencing
that it had thought the motion frivolous. It would be eminently reasonable for the
court to see no need to rush to deal with the issue again.
In short, after Mr. Miles agreed to representation by counsel, he made no
clear and unequivocal assertion of the right to represent himself until the
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sentencing hearing. The district court therefore properly treated him as being
represented by counsel in the interim.
III. CONCLUSION
We AFFIRM the sentence imposed below.