U.S. v. Erskine

• Decision Date: 21 January 2004
• Docket Number: No. 02-50030.,02-50030.
• Citation: 355 F.3d 1161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Erik D. ERSKINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

355 F.3d 1161

UNITED STATES of America, Plaintiff-Appellee, v. Erik D. ERSKINE, Defendant-Appellant.

No. 02-50030.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2003.

Filed January 21, 2004.

Robinson D. Harley, Jr., Santa Ana, CA, for the defendant-appellant.

Jerry A. Behnke, Assistant United States Attorney, Riverside, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Robert M. Takasugi, District Judge, Presiding, D.C. No. CR-00-00806-RMT-01.

Before REINHARDT, O'SCANNLAIN, and FISHER, Circuit Judges.

OPINION

REINHARDT, Circuit Judge.

Erik Erskine appeals his conviction on one count of threatening to assault or murder FBI agents, in violation of 18 U.S.C. § 115(a)(1)(B). Erskine contends that the district court erred in finding a knowing and voluntary waiver of counsel and allowing him to represent himself in accordance with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We hold that Erskine's waiver of his Sixth Amendment right was invalid because the court failed to advise him correctly at the Faretta hearing of the possible penalties he faced, and the record does not show that he had an accurate understanding of the potential consequences at the time he agreed to waive that right. Accordingly, we REVERSE and REMAND.

I. BACKGROUND

A. Factual Background

In 1999, appellant Erik Erskine began contacting FBI agents in Santa Maria, California, and other government agencies, under the apparent belief that the FBI had been corrupted and his life placed in danger because of this knowledge.

On July 11, 2000, Erskine left a message on the Santa Maria FBI office voice mail stating that he knew people who were threatening to kill FBI officers. Ten days later, on July 21, 2000, Erskine left a typewritten note under the door of the office.¹ Finally, on February 26, 2001, an agent of the Los Angeles FBI received a threatening voice mail from the phone number registered to Erskine's address.²

B. Procedural Background

A federal grand jury returned a two count indictment against Erskine charging violations of 18 U.S.C. § 115(a)(1)(B).³ Count one related to the July 11, 2000 incident (the voicemail message left at the Santa Maria office), and count two related to the July 21, 2000 incident (the note left at the Santa Maria office). The government filed a motion requesting a hearing to determine whether Erskine was competent to stand trial. The district court found that he was. A jury then found Erskine, represented by Deputy Federal Public Defender Derek Li, not guilty on count 1. It was unable to reach a verdict on count two and the district court declared a mistrial on that count.

Erskine then asked that he be permitted to represent himself, and that a new attorney be appointed as standby counsel. The district court engaged him in a lengthy colloquy about the dangers and disadvantages of self-representation.⁴ Near the end of this exchange, the court specifically inquired whether Erskine understood the possible penalties that he faced. When Erskine responded in the affirmative with an incorrect statement of the maximum penalty, the court failed to correct his misunderstanding and instead assented to his erroneous response:

The Court: All right. With respect to the possible sentences, do you know what that is?

The defendant: The maximum is listed through the guidelines, one year, even though the sentencing guidelines for my charge —

The Court: How many counts are against you?

The defendant: One, sir. Maximum amount is one year. My sentencing guidelines, though, is zero to six months because of my offense level. The government has it listed as a 3, but technically it's a 6.

The Court: All right....

(emphasis added). Following this colloquy, the district court found that Erskine had knowingly, intelligently, and voluntarily waived his right to counsel, and appointed Li as standby counsel.⁵ Unfortunately, the statutory maximum was actually five years, not one. See 18 U.S.C. § 115(b)(4) (1999).

The government's trial memorandum for the first trial also misstated the maximum penalty — in that case, as three years. It was only well after the Faretta hearing (at which the government was not present), on the first day of the second trial, that the government sought to correct its error:

Mr. Benke: ... And, also, I just wanted to point out that, although we did not file an amended or supplemental trial memorandum, the original trial memorandum and the section related to the possible penalties in this case was in error. The trial memorandum from the first trial stated that the maximum possible penalty I believe was one year imprisonment — a maximum of three years.

The correct maximum penalty in this case, pursuant to section 115(b)(4) is a maximum of five years of imprisonment, and I just wanted to make sure that everybody was on the same page, especially since Mr. Erskine is representing himself in this case.

(emphasis added). Despite a revelation that quintupled the stakes of self-representation for Erskine, the court did not acknowledge its prior mistake, address Erskine to ascertain whether he had understood the government's representation, advise him of the correct maximum penalty, or ask him whether in light of the new and different information as to the penalty he faced, he desired to withdraw his Faretta waiver. Instead, the court simply stated: "All right. Thank you very much. Mr. Cruz, will you please arraign Mr. Erskine?" After a three day trial, the jury returned a guilty verdict on count two of the superseding indictment, but was again unable to reach a verdict regarding the July 11, 2000 incident (the first count).

In fact, Erskine appears not to have been aware of the maximum penalty at the time the government sought to correct its earlier error, or at any point prior to or during either jury trial. Nor, it appears, was he aware of the maximum sentence even at the time of sentencing, when he once again revealed a misunderstanding about the possible penalty he faced.⁶ In the end, the court sentenced Erskine to a prison term that was more than twice the length that it had allowed him to believe was the maximum at the time of the Faretta waiver.⁷ Erskine appeals on the ground that the waiver of his Sixth Amendment right to counsel was not valid.⁸

II. STANDARD OF REVIEW

We review the validity of a Faretta waiver, a mixed question of law and fact, de novo. United States v. Lopez-Osuna, 232 F.3d 657, 663-64 (9th Cir.2000).

Citing United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), however, the government urges us to apply the plain error standard to our review here, arguing that because Erskine let the Faretta error pass without objection, he must show that, had be been advised of the correct penalties during the Faretta colloquy, he would not have elected to represent himself. We reject the government's position as contrary to logic and the force of our precedent.⁹

In Vonn, the Court considered "whether Congress's importation of the harmless-error standard into Rule 11(h) without its companion plain-error rule was meant to eliminate a silent defendant's burdens under the Rule 52(b) plain-error review, and instead give him a right to subject the Government to the burden of demonstrating harmlessness." Id. at 63, 122 S.Ct. 1043. Answering this question in the negative, the Court went on to note in a footnote that "an uncounseled defendant may not, in fact, know enough to spot a Rule 11 error, but when a defendant chooses self-representation after a warning from the court of the perils this entails, Rule 11 silence is one of the perils he assumes." Id. at 73 n. 10, 122 S.Ct. 1043 (internal citations omitted) (emphasis added).

The Court's reasoning in Vonn, however tautological, is inapposite where a defendant has not yet been adequately informed of all the elements that he must take into account in making his decision to forgo counsel and where the error in question involves the failure to provide him with that information. Our requirements for reviewing the validity of a Faretta waiver are predicated on the fact that we do not expect pro se defendants to know the perils of self-representation, and consequently, we cannot expect defendants to recognize that they have not been correctly and fully advised, let alone to point out the court's errors. Accordingly, plain error review would be inappropriate, and we instead perform the simple de novo review in which we have customarily engaged. See, e.g., Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.2000) (en banc); United States v. Robinson, 913 F.2d 712, 714 (9th Cir.1990); Harding v. Lewis, 834 F.2d 853, 857 (9th Cir.1987); see also United States v. Balough, 820 F.2d 1485 (9th Cir. 1987) (en banc); United States v. Harris, 683 F.2d 322 (9th Cir.1982); United States v. Kimmel, 672 F.2d 720 (9th Cir.1982); United States v. Bird, 621 F.2d 989 (9th Cir.1980); United States v. Aponte, 591 F.2d 1247 (9th Cir.1978).

Moreover, the failure to meet the requirements for a valid Faretta waiver constitutes per se prejudicial error, and the harmless error standard is inapplicable. See Balough, 820 F.2d at 1489-90; McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ("Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to `harmless error' analysis."); U.S. v. Arlt, 41 F.3d 516, 524 (9th Cir.1994) (stating that a denial of the right to self-representation is "`per se prejudicial error'"). Accordingly, our determination that a Faretta error occurred here requires us to reverse the conviction.

III. DISCUSSION

A. Sixth Amendment Violation

Erskine contends that because the court failed to advise him of the possible penalties he would face if convicted, he did not...