U.S. v. Mohawk
| Decision Date | 13 April 1994 |
| Docket Number | No. 83-5207,83-5207 |
| Citation | 20 F.3d 1480 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard MOHAWK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Phillip A. Trevino, Los Angeles, CA, for defendant-appellant.
Kendra S. McNally, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before: ALARCON, NORRIS, and O'SCANNLAIN, Circuit Judges.
Opinion by Judge O'SCANNLAIN.
In 1983, Richard Mohawk was convicted of armed bank robbery and sentenced to a term of twenty years in prison. He filed a timely notice of appeal from his conviction. Today, after more than ten years, we decide that appeal in his favor. In the end, we are called upon to determine whether, because of this extraordinary delay, it would violate due process to permit the government to subject Mohawk to a second trial.
On January 28, 1983, three people robbed a Security Pacific National Bank in Los Angeles, California. 1 The government sought to prove that appellant Mohawk was among them. One of the robbers wore a hooded jacket and carried a sawed-off shotgun, which was fired during the course of the robbery, wounding a customer. Before the grand jury, the officer who arrested Mohawk testified that, at the time of the arrest, Mohawk was wearing a hooded jacket like the one identified by witnesses to the robbery. Mohawk, however, insisted that the officer's testimony was false.
It appears that Mohawk's appointed counsel greeted this avowal with great skepticism. First one attorney and then a second were designated to represent Mohawk, but neither apparently believed that the government would fabricate evidence against him in so blatant a fashion. So, too, neither would embrace the litigation strategy Mohawk wished to adopt, namely, that he had been falsely accused because of his activities on behalf of Native Americans. The record suggests that, because of these conflicts, Mohawk determined to represent himself at trial.
At Mohawk's request, his first attorney asked to be relieved. The district court granted counsel's motion, but, over Mohawk's objection, appointed a new attorney to represent him. When the second attorney-client relationship snagged upon the same points of disagreement that had scuttled the first, Mohawk renewed his request to be permitted to represent himself at trial. After a hearing on June 21, 1983, the district court granted this request, although the attorney remained in court through the trial as advisory counsel. 2
Mohawk's trial for armed bank robbery began on June 22, 1983. The jury received its instructions and began deliberations on July 1, 1983, returning a verdict of guilty later that same day. Mohawk received his sentence and then filed a timely notice of appeal on August 9, 1983. Two weeks later he filed a timely transcript designation requesting that all trial transcripts be included as part of the record on appeal.
To this day that request remains unfulfilled in significant part. Whether through unwillingness or inability to do so, and despite repeated orders from this court, the various court reporters with responsibility for compiling a record of the proceedings at Mohawk's trial failed to produce the required transcripts. Even after the imposition of sanctions, the reporters would not or could not produce all the transcripts demanded. In particular, the record before us now does not contain a transcript covering the critical proceedings on June 21, 1983, when the trial court granted Mohawk permission to proceed in propria persona.
Four years were consumed in this fruitless effort to secure the complete trial record. Ultimately, in September 1987, this court ordered the parties to submit a settled statement of the proceedings covered by the missing transcripts pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure. 3
The parties' attempts to comply with this order occupied the next two years. Following submission, another year passed before the certificate of record issued from the district court. At that point, Mohawk moved for the appointment of appellate counsel, which motion was granted. Mohawk's opening appeal brief was filed fifteen months later, on January 27, 1992.
Oral argument was heard and the case submitted on May 8, 1992. The release of the Supreme Court's decision in Doggett v. United States on June 24, 1992, forced us to withdraw the case from submission and to order supplemental briefing. The case was resubmitted and an opinion prepared, but we were prevented from releasing it by this court's determination that the case of United States v. Tucker, 964 F.2d 952 (9th Cir.1992), should be reheard en banc. See United States v. Tucker, 8 F.3d 673 (9th Cir.1993) (en banc). The en banc decision in Tucker permits us finally to decide this appeal--more than ten years after its timely filing. We now reverse Mohawk's conviction and remand to the district court for further proceedings.
The Sixth Amendment confers upon a criminal defendant the right to represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). However, the decision to proceed pro se entails the waiver of the right to counsel provided by the same amendment. Any such decision is invalid unless knowingly and intelligently made. Godinez v. Moran, --- U.S. ----, ----, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993); Faretta, 422 U.S. at 835, 95 S.Ct. at 2531. On appeal, Mohawk contends that his decision to waive the assistance of counsel did not meet this standard.
For a defendant's decision to represent himself or herself to be knowing and intelligent, it must be established that the defendant was "aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation." United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987) (citation omitted). In particular, we require proof that the defendant understood his or her "constitutional right to have [a] lawyer perform certain core functions," and that he or she "appreciate[d] the possible consequences of mishandling these core functions and the lawyer's superior ability to handle them." United States v. Kimmel, 672 F.2d 720, 721 (9th Cir.1982). In conducting this inquiry, our focus is on what Mohawk understood at the time of his decision. See Balough, 820 F.2d at 1489.
It is the government that bears the burden of showing that a defendant's waiver of trial counsel was knowing and intelligent. See Michigan v. Harvey, 494 U.S. 344, 353-55, 110 S.Ct. 1176, 1182, 108 L.Ed.2d 293 (1990); United States v. Ant, 882 F.2d 1389, 1394 (9th Cir.1989). That burden is a heavy one in general, and heavier still under the circumstances of this case. We have said that "[t]he preferred procedure to ensure that a waiver is knowingly and intelligently made is for the district court to discuss [the decision] with the defendant in open court." Balough, 820 F.2d at 1488; Hendricks v. Zenon, 993 F.2d 664, 670 (9th Cir.1993). Ordinarily, we simply would review the answers given by a defendant in his or her colloquy with the court to evaluate whether the decision to waive counsel was knowing and intelligent. Here, we are prevented from doing so, for there is no contemporaneous record of the June 21, 1983 proceedings at which Mohawk received permission to proceed in propria persona. We thus cannot be certain how the court advised Mohawk with respect to the potential consequences of representing himself, nor what sort of appreciation of those consequences Mohawk displayed. The Rule 10(c) settled statement is of no help in this regard, for it fails to reconstruct any of the pertinent events that may have transpired at the June 21 hearing.
For purposes of analysis, then, we must assume that the district court wholly failed to discuss the question of waiver with Mohawk. As a rule, such a failure is conclusive and requires automatic reversal of a defendant's conviction. See id. A "limited exception" to this rule permits us to conclude that a waiver is knowing and intelligent from "the particular facts and circumstances surrounding [the] case, including the background, experience and conduct of the accused." Id. (quoting Kimmel, 672 F.2d at 722). That exception, however, is unavailing on this record. Nothing before us suggests that Mohawk was possessed of "any legal training, specialized education, or unusual background" that might allow us to say that he truly understood the implications of his decision to represent himself. Id. at 1488-89. That Mohawk handled his defense more or less capably--he clearly did, for example, conduct an effective cross-examination of his arresting officer, forcing him to change his testimony--is, under our precedents, irrelevant. "The manner in which a defendant conducts his defense cannot establish his state of mind at the time he opted for self-representation." United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir.1978), quoted in Balough, 820 F.2d at 1489. Similarly, that Mohawk emphatically asserted his desire to represent himself does not mean that this desire was founded on a true appreciation of the dangers of proceeding without counsel. On the contrary, the record suggests the possibility that Mohawk was preoccupied with his court-appointed attorneys' unwillingness to believe his account of the facts and to adopt his preferred trial strategy, and thus that his decision to dispense with their assistance might have been made with insufficient regard for its implications.
We think Mohawk's decision to waive his right to counsel may well have been knowing and intelligent--but we are not free from doubt. The government has...
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