United States v. Price

• Citation: 474 F.2d 1223
• Decision Date: 05 March 1973
• Docket Number: 71-3039.,No. 71-3038,71-3038
• Parties: UNITED STATES of America, Appellee, v. Trunnell Levett PRICE, and Arnold Lewis Coffey, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

474 F.2d 1223 (1973)

UNITED STATES of America, Appellee, v. Trunnell Levett PRICE, and Arnold Lewis Coffey, Appellants.

Nos. 71-3038, 71-3039.

United States Court of Appeals, Ninth Circuit.

March 5, 1973.

William J. Zumwalt (argued), San Diego, Cal., Artie Henderson of Huntington, Byrans, Harper, Henderson, Burney & Newman-Crawford, San Diego, Cal., for appellants.

Robert H. Filsinger, Asst. U. S. Atty. (argued), James W. Meyers, Asst. U. S. Atty., Harry D. Steward, U.S. Atty., San Diego, Cal., for appellee.

Before ELY and HUFSTEDLER, Circuit Judges, and WILLIAMS,^* District Judge.

OPINION

HUFSTEDLER, Circuit Judge:

Price and Coffey appeal from their convictions for armed robbery of a post office (18 U.S.C. § 2114). Of their many contentions on appeal, only three require discussion: (1) denial of their preindictment motions to compel recordation of grand jury proceedings and of their postindictment motions to disclose the content of grand jury transcripts; (2) denial of Coffey's motion to appear pro se at trial; and (3) error in sentencing them to the "mandatory" term prescribed by 18 U.S.C. § 2114, without revealed consideration of the sentencing alternatives of the youthful offender provisions of 18 U.S.C. §§ 4208(a)(1) and 4209.

I.

After appellants were in custody but before they were indicted, they moved for an order compelling recordation of the anticipated grand jury proceedings. The court observed that recordation was desirable, but it denied the motion on the ground that Rule 6(d) of the Federal Rules of Criminal Procedure did not make transcription mandatory and that the court would not "make the rule" itself. In noting that Rule 6(d)¹ is permissive, the district court followed the language of the Rule and the decisions of our court interpreting it.² In denying the motion, however, the district court abdicated the discretion committed to it to order recordation, despite assurances by this court that it has such discretion and that it is obliged to exercise it.³ As we said in United States v. Thoresen (9th Cir. 1970) 428 F.2d 654, 666:

"The fact that a particular discovery procedure is `permissive\' rather than `mandatory\' does not mean that permission may be arbitrarily denied. Where a defendant, anticipating future grand jury proceedings involving himself, gives notice in advance that he will seek a transcript of the proceedings if an indictment is returned and offers to pay the expense of having a reporter in attendance or shows inability to pay, a sound exercise of discretion would ordinarily call for the granting of a motion that a reporter be in attendance."

We adhere to the principles stated in Thoresen, and we now implement them by holding that the district court must exercise its discretion in passing upon a preindictment motion for recordation of grand jury proceedings and that a district court abuses its discretion in denying the motion of parties situated as were appellants, in absence of a Government showing that it has a legitimate and compelling interest to be served by nonrecordation. The Government cannot meet its burden by resort to the secrecy rubric. Secrecy of grand jury proceedings is not jeopardized by recordation. The making of a record cannot be equated with disclosure of its contents, and disclosure is controlled by other means.

Our holding, in part, is predicated on our recognition in Thoresen that recordation of grand jury proceedings should be routine and nonrecordation should be permissible only in exceptional circumstances. It is also based on our awareness that a less strict rule invites defeat of the principles enunciated in Dennis v. United States (1966) 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973.

Dennis held that it was reversible error to deny petitioners' motion for disclosure of certain portions of a grand jury transcript for which the petitioners had shown a particularized need. The Court reasoned that the broadened discovery available to defendants is "entirely consonant with the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice." (384 U.S. at 870, 86 S.Ct. at 1849. See also U. S. Industries, Inc. v. United States District Court (9th Cir. 1965) 345 F.2d 18.)

When Price and Coffey moved for disclosure of portions of the grand jury proceedings, their showing of particularized need may not have been adequate. However, even if their showing had been overwhelming, it would have been futile because the nonexistent is nonproducible, and the Government had arranged that no record be made.

The Government has known at least since Thoresen that a failure to record grand jury proceedings after notice that a defendant wants recordation could jeopardize a prosecution. In Thoresen we declined to dismiss the indictment because the Government had had no prior Circuit warning that its refusal to record could bring its case to grief. The warning was given, and it has been ignored. We are unwilling to go so far as to order dismissal of the indictments of Price and Coffey because we are not convinced that they have adequately demonstrated prejudice. (428 F.2d at 666.) However, we will vacate their sentences and on remand permit them a further opportunity to expand the record by offering additional evidence bearing on the issue.

II.

After the jury had been impaneled and before it was sworn, Coffey moved to dismiss his court appointed counsel and have new counsel appointed, or in the alternative, moved for leave to proceed pro se. There was ample room for an exercise of discretion refusing to substitute new counsel on the eve of the trial. See Good v. United States (9th Cir. 1967) 378 F.2d 934. Denial of Coffey's motion to proceed pro se, however, is more troublesome.

Federal law guarantees parties the right to conduct their own cases: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein." 28 U.S.C. § 1654. No recent innovation, this statutory guarantee has existed since the First Congress. Judiciary Act of 1789, § 35, 1 Stat. 73, 92 (1789). See United States v. Plattner (2d Cir. 1964) 330 F.2d 271, 274. Indeed, it is now clear that the right to proceed pro se is not merely statutory, it is a right of constitutional dimension. (Bayless v. United States (9th Cir. 1967) 381 F.2d 67, 71. See also Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 ("The right to assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. . . . The Constitution does not force a lawyer upon a defendant."); Arnold v. United States (9th Cir. 1969) 414 F.2d 1056, 1058, cert. denied (1970) 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 ("A defendant in a criminal case not only has a constitutional right to the assistance of counsel, he has a correlative constitutional right to refuse the advice or interference of counsel and to present his own case. A court has no more right to force an attorney on a defendant than it has to ignore the Sixth Amendment right to counsel."); Reynolds v. United States (9th Cir. 1959) 267 F.2d 235; Duke v. United States (9th Cir. 1958) 255 F.2d 721, cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365. But cf. People v. Sharp (1972) 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489.

Since the right to proceed pro se is bottomed on the Constitution, the defendant need not show prejudice in order to secure reversal of a conviction. (United States v. Pike (9th Cir. 1971) 439 F.2d 695.) Although it is not error for the court to require counsel to be present and prepared to give advice, such counsel may not interfere with the defendant's presentation of the case and may give advice only upon request. (Bayless v. United States, supra.) The court may not deny a defendant the right to represent himself because he lacks expertise or professional capabilities. When a proper request is made, the only question for the court is whether the defendant has the capacity to decide intelligently and to understand what he is doing, i. e., can the defendant make a valid waiver of his right to counsel? (Hodge v. United States (9th Cir. 1969) 414 F.2d 1040.)

We assume that the right to proceed pro se is not unlimited (e. g., United States v. Private Brands (2d Cir. 1957) 250 F.2d 554, cert. denied, 355 U.S. 957, 78 S.Ct. 542, 2 L.Ed.2d 532; United States v. Bentvena (2d Cir. 1963) 319 F.2d 916), but our circuit has not expressly decided what limitations, aside from timeliness (United States v. Pike, supra, 439 F.2d at 695), should be imposed. We need not delineate the margins of the right in this case because nothing in Coffey's record suggests a basis for qualifying it.

The Government argues that Coffey's outburst at the threshold of trial justified denial of his right to proceed pro se. (Cf. Illinois v. Allen (1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353.) The incident occurred when Coffey, who is black, learned that there were no blacks on the jury panel. The court admonished Coffey, and he thereafter behaved in a manner that moved the court to commend him for good conduct. However, we have no occasion to decide whether Coffey's initial conduct would have warranted a denial of his right to represent himself, because the district court did not purport to place its ruling on that ground. Rather, the court denied the motion because it believed that Coffey did not have the skills adequately to defend himself.⁴ We recognize that the court was motivated by its concern for Coffey's welfare. We are also aware that pro se representation is usually inadequate and often unconducive to the orderly administration of a criminal trial. But the law of the circuit forbids denial of the right based on these considerations. (E. g., United States v. Pike, s...