276 F.3d 1141 (9th Cir. 2001), 99-30241, United States v. Akins

Docket Nº:99-30241
Citation:276 F.3d 1141
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANK PRESTON AKINS, Defendant-Appellant.
Case Date:March 27, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1141

276 F.3d 1141 (9th Cir. 2001)



FRANK PRESTON AKINS, Defendant-Appellant.

No. 99-30241

United States Court of Appeals, Ninth Circuit

March 27, 2001

Argued and Submitted April 5, 2000

Amended Opinion Filed January 10, 2002

Page 1142

[Copyrighted Material Omitted]

Page 1143

[Copyrighted Material Omitted]

Page 1144

COUNSEL: Thomas M. Monaghan, Federal Defenders of Eastern Washington and Idaho, Yakima, Washington, for the defendant-appellant.

Jane M. Kirk, Assistant United States Attorney, Eastern District of Washington, Yakima, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Chief District Judge, Presiding, D.C. No. CR-98-02147-WAE

Before: Harry Pregerson, Dorothy W. Nelson, Circuit Judges, and Lawrence K. Karlton, District Judge.[*]



The opinion filed on March 27, 2001, appearing at 243 F.3d 1199 is hereby amended.

With this amended opinion, the panel as constituted above has voted to deny the petition for rehearing. Judge Pregerson has voted to deny the petition for rehearing en banc, and Judges D.W. Nelson and Karlton so recommend.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing with petition for rehearing en banc is denied.


D.W. NELSON, Circuit Judge:

Frank Preston Akins appeals his conviction, following a bench trial, for possession of a firearm by a person convicted of a "misdemeanor crime of domestic violence" in violation of 18 U.S.C. § 922(g)(9). Although Akins challenges his conviction on numerous grounds, we address only his contention that his firearms possession was not a federal crime under § 922(g)(9) because he did not knowingly and intelligently waive the right to counsel in the predicate domestic violence conviction as required under 18 U.S.C. § 921(a)(33). Because we agree that Akins did not knowingly and intelligently waive the right to counsel in his previous conviction, we reverse the district court and remand with instructions to dismiss the indictment.


On November 30, 1989, Akins was convicted in the Yakima County Superior Court of fourth degree assault against his girlfriend. Akins signed a guilty plea which also purported to serve as a waiver of his Sixth Amendment right to counsel.1

Page 1145

The record does not reflect that the court ever engaged in a colloquy with Akins regarding the meaning of the waiver or provided any further warnings apart from those contained in the written waiver. Akins was sentenced to 90 days in jail, 88 of which were suspended, with credit for time served, and fined $300.

In December of 1998, Akins was indicted for possession of a firearm by a person previously convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). Akins filed a motion to dismiss the indictment, arguing that it failed to allege a prior misdemeanor crime of domestic violence, as defined for purposes of 18 U.S.C. § 922(g)(9), because Akins had not knowingly and intelligently waived his right to counsel prior to his 1989 conviction. The district court denied the motion, finding that "[i]n the 1989 misdemeanor conviction, the Defendant's waiver of counsel was adequate for his conviction."

The case then proceeded to trial. Before trial, the parties agreed to various factual stipulations. The parties stipulated that on July 24, 1997, Akins knowingly possessed a Winchester Model 94, .30-30 caliber rifle, and that this rifle had been shipped in interstate commerce. The parties further stipulated that at the time he possessed the firearm, Akins had previously been convicted on November 30, 1989, of fourth degree assault.2 The only issue to be decided at trial was whether Akins was "similarly situated to a spouse . . . of the victim" in his 1989 misdemeanor assault conviction. 18 U.S.C. § 921(a)(33)(A)(ii). After entertaining argument on this matter, the court found Akins guilty and sentenced him to ten months imprisonment to be followed by a three year term of supervised release. Akins filed a timely notice of appeal challenging, among other things, the district court's denial of his motion to dismiss the indictment.


1. Definition of "Misdemeanor Crime of Domestic Violence"

We must decide whether Akins knowingly and intelligently waived the right to counsel such that his 1989 conviction qualifies as a "misdemeanor crime of domestic violence" within the meaning of 18 U.S.C. § 922(g)(9).

Akins was convicted of violating 18 U.S.C. § 922(g)(9), which makes it a crime for any person "who has been convicted in any court of a misdemeanor crime of domestic violence, to . . . possess in or affecting commerce, any firearm or ammunition." Title 18 U.S.C. of the United States Code, § 921(a)(33)(B)(i), creates a statutory defense, "[a] person shall not be considered to have been convicted of[a misdemeanor crime of domestic violence] for purposes of this chapter unless -(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case."

Page 1146

Under the terms of the statute, then, an indictment under § 922(g)(9) cannot stand if the defendant was not represented by counsel and did not knowingly and intelligently waive the right to counsel in the predicate misdemeanor. Cf. United States v. Swanson, 947 F.2d 914, 919 (11th Cir. 1991) (dismissing an indictment based on the court's finding that restoration of the defendant's civil rights placed him within 18 U.S.C. § 921(a)(20)'s expungement exception). Because § 921(a)(33)(B)(i)(I) is a legal definition, its application presents a question of law to be decided by the trial judge. See United States v. Bartelho, 71 F.3d 436, 440 (1st Cir. 1995) (holding that the applicability of § 921(a)(20)'s expungement exception is a question of law to be decided by the judge); United States v. Flower, 29 F.3d 530, 535 (10th Cir. 1994) (same). We review de novo the district court's refusal to dismiss an indictment based on its interpretation of a federal statute. United States v. Hagberg, 207 F.3d 569, 571 (9th Cir. 2000).

2. Sixth Amendment "Knowing and Intelligent" Waiver Standard

Under the Sixth Amendment, a criminal defendant has a constitutional right to be represented by counsel at all critical stages of the prosecution, Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), including the plea proceeding. United States v. Fuller, 941 F.2d 993, 995 (9th Cir. 1991). The right to counsel applies in any offense -misdemeanor or felony -for which a term of imprisonment is imposed. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

Although a defendant has a constitutional right to represent himself, in order to do so he must knowingly and intelligently waive the right to counsel. United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987). A waiver is knowing and intelligent only if it comes after the defendant has been "made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that he knows what he is doing and his choice is made with eyes open." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (internal quotations omitted). We have consistently held that in order to knowingly and intelligently waive the right to counsel, the defendant must be made aware of (1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of selfrepresentation. United States v. Farhad, 190 F.3d 1097, 1099 (9th Cir. 1999); United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994); United States v. Harris, 683 F.2d 322, 324 (9th Cir. 1982).

Although the Constitution does not require the court to engage in a prescribed discussion of each of these three items with the defendant, Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000) (en banc), we have recognized that a colloquy between the court and the accused assists in establishing on review that the waiver of counsel was knowing and intelligent. See, e.g., Fuller, 941 F.2d at 996 ("A trial court not only discharges its obligation to the accused but immeasurably simplifies our review of an accused's appreciation of the risks inherent in self-representation by explicitly communicating them to the defendant."); United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982) ("We prefer trial courts to simplify our review by explaining the risks of self-representation to the accused."); United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978) ("Although a trial judge's failure to make a specific waiver inquiry is not per se reversible error, the only practical means available to protect against either a Faretta reversal or a Dujanovic reversal is to

Page 1147

make a record before allowing the case to proceed.").

In this case, the trial court...

To continue reading