U.S. v. Mack

• Decision Date: 30 March 2004
• Docket Number: No. 03-10204.,03-10204.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroy Roosevelt MACK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

362 F.3d 597

UNITED STATES of America, Plaintiff-Appellee, v. Leroy Roosevelt MACK, Defendant-Appellant.

No. 03-10204.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2004.

Filed March 30, 2004.

Mitchell Posin, Las Vegas, NV, for the Defendant-Appellant.

Mark A. Inciong, Assistant United States Attorney, Las Vegas, NV, for the Plaintiff-Appellee.

Appeal from the United States District Court for the District of Nevada; Roger L. Hunt and Philip M. Pro, District Judges, Presiding. D.C. No. CR-02-00076-PMP/RJJ.

Before: FERNANDEZ, HAWKINS, and THOMAS, Circuit Judges.

FERNANDEZ, Circuit Judge:

Leroy Roosevelt Mack appeals his conviction and sentence for distribution of cocaine base after a trial in which he represented himself. See 21 U.S.C. § 841(a)(1). Mack asserts that the district court erred when it truncated the trial proceeding by excluding him from the courtroom and then denying him the right to call witnesses and the right to present closing argument.¹ We agree and reverse.

BACKGROUND

Mack was indicted in March of 2000 for distribution of cocaine base. After successfully obtaining the removal of three attorneys in succession, Mack, at his own behest, was allowed to represent himself.² Asked if he wished to have standby counsel, Mack refused unless he could have appointed counsel of his choice — a person who was not on the court's standard appointment list. Thus, standby counsel was not appointed.³ As matters developed, that was regrettable.

Mack's behavior at his long delayed trial, which finally commenced January 28, 2002, was obstreperous, contemptuous, and demonstrative of his unwillingness or inability to abide by directions from the district court. As the relatively short trial went forward, he became worse rather than better. On the third day, he started a firefight over the fact that the wife of one of the jurors was in the courtroom, and he essentially refused to accept the district court's determination that there was no impropriety. Worse than that, Mack, in disregard of the court's directions, surreptitiously held up a note which informed the juror that he knew of the presence of the lady. That made the juror feel threatened, so the court felt that it must remove the juror from the panel. It directed Mack not to tell the other jurors the reason for the removal, and after a rather heated discussion, Mack agreed. He did so when the court warned him that if his shenanigans continued, he would be removed from the courtroom, his questioning of witnesses would cease,⁴ and he would not be permitted to present argument to the jury.

Nevertheless, as soon as he got a chance, Mack began announcing the reason to the jury, and actually got it out before he was led away. The district court matched its actions to its words. Mack was taken from the courtroom, questioning of witnesses ceased, and Mack was precluded from presenting closing argument to the jury. The court also precluded the prosecution from presenting argument. Thus, the jury ultimately proceeded to its deliberations with no summing up by either side. The jury was, however, instructed on the law by the trial court,⁵ and Mack was allowed to be present for that. The next day, the jury issued a guilty verdict; Mack was allowed to be present for that also. In due course, Mack made a motion for a new trial before a different judge.⁶ See Fed.R.Crim.P. 33. That was denied, he was sentenced, and this appeal followed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

A new trial may be granted by the district court when "the interest of justice so requires." Fed.R.Crim.P. 33(a). We review "the denial of a motion for a new trial for an abuse of discretion." United States v. Hursh, 217 F.3d 761, 769 (9th Cir.2000) (citation omitted).

DISCUSSION

Because of the unique posture of this case — a case where a pro se defendant was removed from representation, and the proceeding was truncated — we start with first principles. A properly conducted judicial proceeding is required by the demands of due process. See U.S. Const. amend. V. More particularly, a defendant is entitled to a "trial," and "to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." U.S. Const. amend. VI.

As the Constitution indicates, our notion of a trial is not just any old proceeding; it has its own roots deep in the history of our country. To start with, the proceeding must be conducted with a certain deliberative majesty that is far from a free-for-all or, for that matter, the hurly burly of an academic or political debate. As the Supreme Court has pointed out:

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.

Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). That means that defendants are not permitted to seize control of the courtroom and when they threaten to do so:

No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.

Id. at 343-44, 90 S.Ct. at 1061. If that prevents a defendant from being present at some critical stage of his trial, so be it; he can forfeit that ancient right. See id. at 345-46, 90 S.Ct. at 1062; Badger v. Cardwell, 587 F.2d 968, 972-73 (9th Cir.1978). However, can that mean that a pro se defendant will also forfeit his right to be represented at trial?

Well, we do know that a defendant can eschew his right to representation in the sense that he can decide to represent himself. That is, he may do so if he "`knowingly and intelligently'" decides to forgo "the traditional benefits associated with the right to counsel." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (citation omitted); see also United States v. Bishop, 291 F.3d 1100, 1114 (9th Cir.2002). And, that intelligent waiver can even be made when the defendant is abysmally ignorant when it comes to "`technical legal knowledge.'" Godinez, 509 U.S. at 399-400, 113 S.Ct. at 2687 (citation omitted); see also United States v. Arlt, 41 F.3d 516, 518 (9th Cir.1994). That does not mean that the defendant's right to self-representation overcomes the court's right to maintain order in the courtroom and conduct proceedings in a manner consonant with our trial traditions. See McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122 (1984). As the Court said in Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46:

Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. Of course, a State may — even over objection by the accused — appoint a "standby counsel" to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary.

The right of self-representation is not a license to abuse the dignity of the courtroom.

Id. (citations omitted).

We think that this points the way. A defendant does not forfeit his right to representation at trial when he acts out. He merely forfeits his right to represent himself in the proceeding. The courts of California have perceived as much. Thus, when faced with the kind of situation that confronted the district court in this case, a California trial judge excluded the pro se defendant from the courtroom. The California Court of Appeal concluded that "excluding him as a defendant representing himself was a fundamental error requiring reversal, because there was, then, no defense counsel present." People v. Carroll, 140 Cal.App.3d 135, 143, 189 Cal.Rptr. 327, 332 (1983); cf. People v. El, 102 Cal.App.4th 1047, 1050, 126 Cal.Rptr.2d 88, 90 (2002) (where there was standby counsel, who had not been told to take over, a very brief exclusion was alright).

In the case at hand, the district court did direct removal of Mack from the courtroom, which left nobody to represent him. True it is that it does not appear that anything of significance went on in Mack's absence, but when he was allowed to return, he was required to remain silent and was even told that no objections of his would have any effect whatsoever on the proceedings. In practical effect, he had been removed as his own counsel and nobody stepped in to fill the gap. While we do understand that the district court had to do something about Mack's obnoxious behavior, effectively leaving him without representation was still far from appropriate. But let us go on with our canvas of the elements of a trial as we know it.

The Sixth Amendment does not literally guarantee the right to present witnesses; it gives the right to compulsory process to obtain them. However, it is pellucid that the latter includes the former. See Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988). In fact, "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Id. at 408, 108 S.Ct. at 652 (citation omitted). As the Supreme Court put it at an earlier time:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to...