U.S. v. Kimball, No. 00-15623.

Citation291 F.3d 726
Decision Date14 May 2002
Docket NumberNo. 00-15623.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James T. KIMBALL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Reginald Elliot Dunn, Jr., Wesley Chapel, FL, Michael S. Pasano, Zuckerman, Spaeder, Taylor & Evans, Miami, FL, for Defendant-Appellant.

David Paul Rhodes, Tamra Phipps, Tampa, FL, James E. Arnold, Washington, DC, for Plaintiff-Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, CARNES and SILER*, Circuit Judges.

PER CURIAM:

Appellant/Defendant James Kimball ("Defendant") was convicted of conspiracy to distribute in interstate commerce a prescription drug without a prescription with the intent to defraud or mislead, in violation of 18 U.S.C. § 371; of distributing in interstate commerce a prescription drug without a prescription with the intent to defraud or mislead, in violation of 21 U.S.C. § 331(a); and of making false statements, in violation of 18 U.S.C. § 1001. The district court sentenced Defendant to 13 years' imprisonment.

Defendant brings this appeal, challenging his conviction on the following grounds: that he was denied his Sixth Amendment right to counsel when the district court allowed him to represent himself; that the district court's comments and acts unfairly prejudiced Defendant before the jury, denying him the right to a fair and impartial trial; and that the district court erred by not suppressing evidence seized during a search of his home. Defendant also raises a number of challenges to his sentence.1

We affirm the conviction and the sentence.

DISCUSSION
I. Self-Representation

We see no reversible error in the district court's grant of Defendant's motion to represent himself. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court determined that the Sixth Amendment affords criminal defendants the right to defend themselves if they so desire. See id. at 2532-34. But the Court also wrote that "in most criminal prosecutions defendants [can] better defend with counsel's guidance than by their own unskilled efforts." Id. at 2540. Therefore, before a defendant is allowed to waive the assistance of counsel, he "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open." Id. at 2541 (internal citation and quotations omitted).

We have written that the "ideal method" of assuring that a defendant understands the consequences of a waiver is for the trial court to conduct a pretrial hearing. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.1995). At this hearing — commonly referred to as a "Faretta inquiry"the district court should inform the defendant of the nature of the charges against him, possible punishments, basic trial procedure and the hazards of representing himself. See id. The purpose of this hearing is to allow judges to determine whether the defendant understands the risks of self-representation. "The closer to trial an accused's waiver of the right to counsel is, the more rigorous, searching and formal the questioning of the trial judge should be." Id. (quoting Strozier v. Newsome, 926 F.2d 1100, 1105 (11th Cir. 1991)).

In this case, the district court conducted a Faretta inquiry. During the inquiry, the district court repeatedly told Defendant that it was a bad idea to defend himself and warned defendant about the specific risks and difficulties in doing so. At the conclusion of the inquiry, the district court determined that Defendant understood the warnings; and the court determined that Defendant had "freely, knowingly, voluntarily and intelligently waived his right to counsel." Therefore, the district court allowed Defendant to represent himself.

A district court's conclusion that a defendant's waiver is valid — that it is knowing, voluntary, and intelligent — is a mixed question of law and fact that we review de novo. See id. We have identified several factors that are especially important to the determination of whether a defendant's decision to proceed pro se is valid. These are the factors: 1) the defendant's age, health, and education; 2) the defendant's contact with lawyers prior to trial; 3) the defendant's knowledge of the nature of the charges and possible defenses and penalties; 4) the defendant's understanding of the rules of evidence, procedure and courtroom decorum; 5) the defendant's experience in criminal trials; 6) whether standby counsel was appointed and, if so, the extent to which standby counsel aided in the trial; 7) any mistreatment or coercion of the defendant; and 8) whether the defendant was attempting to manipulate the trial. See id. at 1088-89; Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065-67 (11th Cir.1986).

We have reviewed the record, and we conclude that most of the factors point in favor of a ready finding that Defendant's waiver was valid. That Defendant was not coerced into defending himself is undisputed, and no indication exists that Defendant was attempting to manipulate the trial process by asking to represent himself.

Although Defendant does make arguments on the other factors, most of his arguments are not powerful. Defendant is only sixty years old and is in good mental and physical health. Although Defendant's formal education ended in the eleventh grade, he has been a fairly successful and sophisticated businessman. In addition, Defendant was represented by a lawyer — Elliot Dunn — prior to trial. According to Dunn's statements at the Faretta inquiry, Dunn explained the risks of acting pro se and advised Defendant against doing so. Furthermore, Dunn was appointed by the district court as standby counsel. Moreover, Defendant did have some courtroom experience: in the past, he had acted as his own lawyer in a felony case. While it is true that the earlier trial took place over twenty years before this case and was tried to a judge instead of to a jury, the experience should have illustrated for Defendant the inherent difficulties of acting as one's own lawyer.

Two of the factors merit further discussion. The first deals with Defendant's understanding of the applicability of the rules of evidence, procedure and courtroom decorum. Defendant argues that this factor should weigh in his favor, because the district court failed to conduct a detailed inquiry on the extent of Defendant's mastery of the rules.

This argument misunderstands the law. The purpose of a Faretta inquiry is not to determine the extent of a defendant's legal knowledge or to determine how good of a trial advocate a defendant will be. See Faretta, 95 S.Ct. at 2541 ("[A] defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation.... [A defendant's] technical legal knowledge, as such, [is] not relevant to an assessment of [a defendant's] knowing exercise of the right to defend himself."). A defendant need only "be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open." Id. (internal quotations omitted). Therefore, we do not have to determine — and the district court did not have to ask — whether, for example, Defendant could recite the steps to introduce a document into evidence or whether Defendant could define "hearsay" and list the various exceptions to the hearsay rule. See, e.g., id. ("We need make no assessment of how well or poorly [the defendant] ha[d] mastered the intricacies of the hearsay rule."). Instead, we need only to determine whether Defendant understood that rules do exist to govern the procedure of a trial, the introduction of evidence and the behavior of advocates and to determine whether Defendant understood that he would be bound by those rules. Our review of the record convinces us that Defendant did understand these things.

We are more troubled by whether Defendant understood the consequences of a guilty verdict and what would happen if the trial went badly for him. The district court's discussion of Defendant's possible sentence is a bit worrisome. Defendant's indictment listed eight counts. The district court went through each count and told Defendant the maximum sentence under each count: Counts 1 and 8 carried a five-year maximum; counts 2 through 7 carried a three-year maximum. And the district court informed Defendant that the court had the power to sentence him to consecutive sentences. The district court also told Defendant, "the penalty that you might suffer if you are found guilty, and I want to make it sound as bad as I can, it's five years, could be 28 years...."

The district court, however, did not stop with a warning as to the maximum or theoretical penalties Defendant faced. Here is the worrisome part. Instead, the district court — in Defendant's presence — discussed with the prosecutor Defendant's likely sentence under the federal sentencing guidelines. When asked whether the government had calculated Defendant's sentence under the guidelines "to a certain extent," the prosecutor responded: "To a certain extent. I'd say that three years is very reasonable and middle of the road." (emphasis added). Defendant stresses that he gave this statement great weight, seeing it as the real risk he was facing.

If the district court had simply told Defendant the maximum conceivable sentence he faced, this case would be an easy one. Our cases do not require that a district court, in a Faretta inquiry, estimate what a defendant's actual punishment under the sentencing guidelines will be. It seems a better practice for district courts to abstain from doing so. The facts of this case illustrate the potential problem.

The application of the sentencing guidelines and the...

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