U.S. v. Boigegrain

Decision Date21 August 1998
Docket NumberNo. 96-1548,96-1548
Citation155 F.3d 1181
Parties98 CJ C.A.R. 4453 UNITED STATES of America, Plaintiff-Appellee, v. Walter Scot BOIGEGRAIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Submitted on the briefs: *

Richard Byron Peddie and Catherine A. Hance, Frascona, Joiner & Goodman, P.C., Boulder, Colorado, for Defendant-Appellant.

Henry L. Solano, United States Attorney, and Charlotte J. Mapes, Assistant United States Attorney, District of Colorado, Denver, Colorado, for Plaintiff-Appellee.

Before PORFILIO, HOLLOWAY, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This appeal invites us to resolve two constitutional questions regarding the relationship between an attorney and a potentially incompetent client in a criminal case. First, we must determine whether a client who may be incompetent to stand trial has a constitutional right to waive his counsel before a hearing on his competency. The second issue presented is whether counsel who moves for an evaluation of the defendant's competency against the defendant's wishes thereby renders ineffective assistance of counsel. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we answer both questions in the negative.

I.

The defendant was charged with two counts of threatening a federal law enforcement officer and his family, in violation of 18 U.S.C. § 115(a)(1)(B). His arraignment was scheduled for June 7, 1996, and from that point the parties have taken a somewhat tortuous course to this appeal.

The arraignment was continued until June 14, 1996, to allow David Conner, the public defender representing the defendant, to familiarize himself with the case. At that time, the defendant pleaded not guilty and advised the court that if he could retain private counsel, he would like to replace Mr. Conner. The Magistrate assured the defendant that he had that option open to him.

On June 20, the day of a scheduled discovery conference, the defendant filed a "Notice of Dismissal of U.S. Federal Public Defender Mr. David Conner and Notice of Stay of Proceedings Pending Procurement of Other Counsel." The presiding Magistrate agreed to delay the discovery conference for one week, until June 28, 1996, to allow the defendant to retain counsel. The Magistrate, however, did not release the public defender from the case.

The record does not reflect whether the conference scheduled for June 28 ever occurred. Regardless, the defendant did not procure private counsel but continued, throughout the proceedings, to file motions on his own behalf rather than through his lawyer. On July 8, Mr. Conner moved for a determination of the defendant's competency to stand trial. 1 On the basis of that unopposed motion, the court appointed a psychiatrist to examine the defendant and scheduled a hearing on the defendant's competency for October 18. The defendant missed his appointment with the court-appointed psychiatrist, which triggered a motion by the government to have the defendant committed for the purpose of conducting the preliminary evaluation. See 18 U.S.C. § 4247(b) (stating that for the purpose of conducting an examination pursuant to § 4241(b), "the court may commit the person to be examined for a reasonable period"). The court granted the government's motion. The defendant was confined until the psychiatric evaluation was completed.

The district court rescheduled the hearing on the defendant's competency for November 8, 1996, but the defendant did not appear. After the defendant was arrested and his bond revoked, the competency hearing finally took place on December 6, 1996. There, the district court explained why he had not yet ruled on the defendant's motion to excuse Mr. Connor:

I have not ruled on that motion deliberately ... I am aware, of course, that under applicable precedent of the United States Supreme Court, a defendant in a criminal case has the right to waive his Sixth Amendment right to counsel and proceed to represent himself. However, in order for that to happen, the Court must find a knowing, intelligent, voluntary waiver of the right to counsel.

... I have not ruled on the motion because I do not think that one can determine whether a person is competent to waive counsel until you can make a determination as to whether Mr. Boigegrain is competent to stand trial.

R.O.A. vol. 11 at 2-3. The court found Mr. Boigegrain incompetent to stand trial and ordered him committed for a period not to exceed four months, pursuant to 18 U.S.C. § 4241(d).

The defendant filed his appeal from that order on December 19, 1996. Counsel for the defendant moved to withdraw the appeal on the basis that this court had no jurisdiction because there was no final order issued. The en banc court found that we have jurisdiction over appeals from section 4241(d) commitment orders. See United States v. Boigegrain, 122 F.3d 1345, 1349 (10th Cir.1997) (en banc) (per curiam) (overruling United States v. Cheama, 730 F.2d 1383 (10th Cir.1984)). The court then ordered briefing on the merits, which are before this panel now.

After the parties submitted briefs on the merits, at the defendant's request we granted a limited remand so that the district court could make new findings on the defendant's competency, and if appropriate enter a plea agreement. 2 The district court found the defendant competent and accepted the defendant's guilty plea. The government then filed a motion to dismiss this appeal for mootness. We took that motion under advisement and address it first.

II.

The government argues that the case is now moot because Mr. Boigegrain has pleaded guilty to the charge. We disagree. Mr. Boigegrain is appealing the district court's order, pursuant to 18 U.S.C. § 4241(d), which found him incompetent to stand trial and ordered him committed to the custody of the Attorney General for a period not to exceed four months. In the defendant's first appeal of that order, we addressed the mootness question:

Although the defendant's commitment has concluded, there is no question that a justiciable case or controversy is presented that will not be mooted by his release. Because commitments ordered pursuant to § 4241(d) will often be concluded before the appellate process is complete, the issue presented here is " 'capable of repetition, yet evading review.' "

Boigegrain, 122 F.3d at 1347 n. 1 (quoting United States v. Gundersen, 978 F.2d 580, 581 n. 1 (10th Cir.1992)). Because the defendant is appealing his commitment pursuant to section 4241(d), it is his release from that commitment, if anything, that would moot this appeal. The fact that he entered into a plea agreement has no impact on the completely separate commitment issue. Cf. Boigegrain, 122 F.3d at 1349 (finding a commitment order under section 4241(d) to be "completely separate from the merits of the action"). We are governed by the law of the case as stated in the previous opinion. Mr. Boigegrain's appeal is not moot.

III.
A.

The defendant raises three issues on appeal. First, he contends that the proceedings in this case violated his right to waive his counsel and to represent himself. We review the district court's finding of historical facts for clear error. See, e.g., United States v. Robertson, 45 F.3d 1423, 1430 (10th Cir.1995). We review de novo, however, the ultimate question of whether a constitutional violation took place. See United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir.1997).

Criminal defendants have a constitutional right, rooted in the Sixth Amendment, to conduct their own defense. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Thus, a lawyer cannot be forced upon a defendant who wishes to act as his own representative, even if self-representation would be detrimental to the defendant. See id. at 834, 95 S.Ct. 2525. In this case, the defendant moved to dismiss the public defender in June of 1996. The district court did not rule on the motion for over five months, during which time the public defender raised the competency issue and did not argue, as the defendant apparently wished him to, that the defendant was competent to stand trial. The defendant argues that the delayed resolution of his motion and his lawyer's taking a position contrary to his own denied him the right to waive counsel and represent himself.

An accused who forgoes the assistance of counsel surrenders substantial benefits. Therefore, "in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits." Id. at 835, 95 S.Ct. 2525 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); see also United States v. Baker, 84 F.3d 1263, 1264 (10th Cir.1996). The defendant's decision to waive counsel must be knowing, voluntary, and competent before it can be recognized. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525; Godinez v. Moran, 509 U.S. 389, 399-400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) ("[A] defendant choosing self-representation must do so 'competently and intelligently' ....") (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). The district court had a duty to ensure that the defendant was choosing self-representation in an informed manner before allowing him to proceed on his own.

Here, the court waited to rule on the defendant's motion to dismiss the public defender until the issue of the defendant's competency to stand trial had been resolved. That was the most appropriate course because "[l]ogically, the trial court cannot simultaneously question a defendant's mental competence to stand trial and at one and the same time be convinced that the defendant has knowingly and intelligently waived his right to counsel." United States v. Purnett, 910 F.2d 51, 55 (2d Cir.1990). Although that common sense statement almost resolves this matter on its own, a more recent case from the Supreme Court, Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), clarifies it completely. In ...

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