U.S. v. Schultz, No. 06-11673.

• Citation: 565 F.3d 1353
• Decision Date: 22 April 2009
• Docket Number: No. 06-11673.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory G. SCHULTZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

565 F.3d 1353

UNITED STATES of America, Plaintiff-Appellee, v. Gregory G. SCHULTZ, Defendant-Appellant.

No. 06-11673.

United States Court of Appeals, Eleventh Circuit.

April 22, 2009.

Fritz J. Scheller, Fritz Scheller, P.L., Orlando, FL, Todd A. Foster, Kevin J. Darken, Cohen, Jayson & Foster, P.A., Tampa, FL, for Schultz.

Todd B. Grandy, Tampa, FL, for U.S.

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

Before CARNES, HULL and COX, Circuit Judges.

PER CURIAM:

Gregory G. Schultz, convicted of several white-collar criminal offenses, challenges an order entered by a federal magistrate judge denying his request to represent himself at trial. Schultz argues that the magistrate judge lacked authority to enter that order and, alternatively, that the magistrate judge erred by denying his request. We affirm in part and dismiss in part for lack of jurisdiction.

I.

A federal grand jury returned a 38-count superseding indictment against Schultz and three codefendants, charging them with: conspiracy to commit securities fraud, mail fraud, and wire fraud, in violation of 18 U.S.C. § 371 (Count 1); securities fraud, in violation of 15 U.S.C. § 78j(b) (Counts 2 through 6); the sale of unregistered securities, in violation of 15 U.S.C. § 77e(a) (Counts 7 through 9); mail fraud, in violation of 18 U.S.C. § 1341 (Counts 10 through 22); conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count 23); illegal monetary transactions, in violation of 18 U.S.C. § 1957 (Counts 24 through 31); and money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Counts 32 through 38).

Schultz, a lawyer, represented himself at his first trial. During the fourth week of the trial, however, Schultz collapsed while cross-examining one of the government's witnesses. That night, he was admitted to the hospital, where he remained for several days. In light of the time that it would take for doctors to diagnose Schultz's condition, the district court severed Schultz's case from his codefendants' cases and ordered a mistrial.

Schultz's appointed standby counsel took over preparing his defense for the retrial. Two weeks before Schultz's second trial was scheduled to begin, Schultz's appointed attorney moved to withdraw from the case, explaining that he had a conflict of interest because Schultz had recently filed a civil action against him. The district court referred counsel's motion to a magistrate judge. The district court "also refer[red] any motion for self-representation by Defendant Gregory G. Schultz. No motion has been filed at present but the Court understands the motion will be filed."¹

The magistrate judge held a hearing at which Schultz invoked his Sixth Amendment right to represent himself in his upcoming trial, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Exercising authority under § 636(b)(1)(A), the magistrate judge entered an order denying Schultz's request for self-representation because his "recent efforts [were] part of a consistent pattern of delay," he had "persistently tried to obstruct the course of the judicial proceeding" by intentionally filing non-meritorious motions, and he was engaged in "a manipulative effort to create potential error" for purposes of appeal. Schultz did not serve and file an appeal from the magistrate judge's ruling.

When the district court convened Schultz's second trial shortly thereafter, Schultz's appointed attorney stated: "I would like to reassert for Mr. Schultz his desire, his motion to represent himself," to which the district court responded: "Denied."

A jury found Schultz guilty on all counts except for Count 6, which the government agreed to dismiss, and Count 21, of which he was found not guilty. The court sentenced Schultz to 262 months imprisonment. This is Schultz's appeal from the judgment of conviction.

II.

First, Schultz contends that the magistrate judge lacked authority to rule on his request to represent himself at his trial under Faretta, 422 U.S. at 807, 95 S.Ct. 2525. Schultz argues that, under Faretta and the Sixth Amendment, his right to self-representation is a fundamental right and that therefore a magistrate judge, as an Article I judge, has no authority to deny it. Although Schultz failed to raise that argument to the district court, we review challenges to a magistrate judge's authority even when the defendant has not objected in the district court. United States v. Desir, 257 F.3d 1233, 1235 (11th Cir.2001); United States v. Maragh, 189 F.3d 1315, 1318 (11th Cir.1999) (citing Glidden Co. v. Zdanok, 370 U.S. 530, 535-36, 82 S.Ct. 1459, 1465, 8 L.Ed.2d 671 (1962))(observing that the Supreme Court has treated challenges to a magistrate judge's statutory authority as if they were jurisdictional issues). Because Schultz did not raise his challenge to the magistrate judge's authority in the district court, however, we review it only for plain error. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir.2003) ("Freixas's argument concerning the magistrate judge's authority is advanced for the first time on appeal, and accordingly we review it only for plain error.").

To demonstrate plain error, Schultz must show that: "(1) an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial proceedings." United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir.2003). An error is not plain unless it is contrary to explicit statutory provisions or to on-point precedent in this Court or the Supreme Court. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.2003).

In this case, it was not error at all, much less plain error, to allow a magistrate judge to decide Schultz's motion for self-representation. "Magistrate judges do not ... exercise the authority of judges appointed under Article III of the United States Constitution; rather, magistrate judges draw their authority entirely from an exercise of Congressional power under Article I.... The jurisdiction and duties of federal magistrate judges are outlined principally in [28 U.S.C. § 636]." Thomas v. Whitworth, 136 F.3d 756, 758 (11th Cir. 1998). Turning to the language of 28 U.S.C. § 636(b)(1)(A), it appears that magistrate judges do have the authority to make decisions regarding counsel for the defendant. Section § 636(b)(1)(A) states:

Notwithstanding any provision of law to the contrary ... a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.

28 U.S.C. § 636(b)(1)(A). Thus, magistrate judges are authorized to "hear and determine any pretrial matter," and none of the specific exceptions to this rule include a pretrial motion for self-representation or anything analogous to that type of motion. A literal reading of the statute therefore supports the district court's decision to refer Schultz's motion for self-representation to a magistrate judge.

Moreover, in addition to the language of the statute, case law also holds that magistrate judges have the authority to decide motions for self-representation. See Freixas, 332 F.3d at 1319. In Freixas the defendant retained counsel to represent her and a co-defendant. Because sharing counsel created a potential conflict of interest, a magistrate judge held a full Garcia² hearing and concluded that Freixas was "competent, that she comprehended the charges against her and the maximum punishment for each, and that she understood both the potential conflict arising from the sharing of an attorney with an alleged coconspirator and her right to effective representation of counsel." Id. at 1317. Accordingly, the magistrate judge found that Freixas knowingly and voluntarily waived any conflict in her representation. Id. We upheld the magistrate judge's authority to make that determination. Id. at 1319. Notably, the competency and knowledge requirements for waiving a right to conflict-free representation are substantially the same as the requirements for waiving right to assistance of counsel entirely, which is a prerequisite to representing oneself. Godinez v. Moran, 509 U.S. 389, 399-400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (stating that a defendant must only "competently and intelligently" choose self-representation, just as he must "knowingly and intelligently" forgo his right to a lawyer). Thus, the determinations made by the magistrate judge in Freixas were quite similar to those that would ordinarily be made by a magistrate judge deciding a motion for self-representation. Our holding in Freixas supports allowing a magistrate judge to decide Schultz's motion.

Finally, other circuits have expressly stated that magistrate judges have the authority to decide motions for self-representation and substitute counsel. See, e.g., United States v. Modena, 302 F.3d 626, 630 (6th Cir.2002) (citing § 636(b)(1)(A) and stating that "[a] magistrate judge is authorized by statute to determine whether a criminal defendant has effectively waived the right to counsel"); United States v. Brown, 79 F.3d 1499, 1503 (7th Cir.1996) ("Title 28 U.S.C. § 636(b)(1)(A) permits district judges to designate non-Article III magistrate judges for the determination of nondispositive pretrial motions, such as motions for substitute counsel.").

Against all of this...