U.S. v. Aponte, 77-2735

• Decision Date: 07 September 1978
• Docket Number: No. 77-2735,77-2735
• Citation: 591 F.2d 1247
• Parties: UNITED STATES of America, Appellee, v. Jack APONTE, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1247

591 F.2d 1247

UNITED STATES of America, Appellee, v. Jack APONTE, Appellant.

No. 77-2735.

United States Court of Appeals, Ninth Circuit.

Sept. 7, 1978.

John W. Lovell (argued), Tucson, Ariz., for appellant.

John G. Hawkins, Asst. U. S. Atty. (argued), Phoenix, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before ELY and GOODWIN, Circuit Judges, and ENRIGHT ^*, District judge.

GOODWIN, Circuit Judge:

Jack Aponte was convicted by a jury of violating 18 U.S.C. § 3150 (jumping bail). On appeal, he asserts a variety of irregularities, but the only two issues that require discussion are whether the trial judge erred in finding Aponte competent to stand trial and whether the judge improperly allowed Aponte to represent himself without an effective waiver of his right to counsel.

Some three years after Aponte had failed to appear for sentencing in the District of Arizona upon a conviction arising out of his possession of a controlled substance, he was arrested in California and returned to Arizona for further proceedings. In due course, he was indicted for the bail violation. The court appointed counsel from the federal defender's office. Counsel promptly filed, pursuant to Fed.R.Crim.P. 12.2, notice of intent to defend on the ground of insanity or mental defect.

Counsel next filed a notice asserting that Aponte was not mentally competent to stand trial. At a hearing called to determine Aponte's competence to stand trial, Aponte brushed aside his appointed counsel and embarked upon a colloquy with the court.

Aponte asserted first that the federal defender was hostile to him. Aponte next shared with the court his views about a number of other attorneys, psychiatrists, public officials, local celebrities and federal agencies, all of whom he accused of conspiring against him. He concluded by announcing that he was competent to stand trial and to defend himself.

The court questioned whether Aponte was mentally competent to stand trial, and ordered him transferred to the United States Medical Center for Federal Prisoners in Springfield, Missouri, for further study. Aponte remained in Springfield for approximately 90 days. He was seen briefly by several psychiatrists. After a final staff conference, Aponte was returned to Arizona with a report that in the opinion of the Springfield doctors he was competent to stand trial at that time.

The federal defender was then faced with the somewhat limited range of defenses available in a bail-jumping case, and a client whose mental condition continued to raise serious questions. Counsel again decided to recommend a defense based upon mental illness or defect. Aponte then became adamant in his rejection both of the attorney and of the proposed defense. (Aponte explained in court later that he was planning to bring civil actions for damages against the President, the CIA, and other federal agencies, and he felt that if he defended the charged bail violations on the ground of diminished responsibility that defense might prove counter-productive in his contemplated damage action.)

On the morning that the case was called for trial, Aponte announced that he would try his own case, in his own way, without the aid of counsel. He said that he had made up his mind, and that he had "fired" his attorney.

The district judge again listened briefly to Aponte's views about counsel, about representing himself, and about the existence of a governmental conspiracy. The judge stated that he would allow Aponte to represent himself, but admonished him that he would be bound by the same rules as any lawyer and that he would have to behave properly. The court then instructed the federal defender to remain at Aponte's side as an advisor.

The trial proceeded. Aponte conducted his own defense, such as it was, although he allowed the federal defender to cross-examine witnesses on his behalf. Aponte took the stand, and told the jury about the same conspiracy he had earlier described to the court.

When both the government and the defense had presented their cases, the judge called a recess in order to discuss jury instructions with counsel and Aponte. After the jury had left the courtroom, the federal defender made a motion for a mistrial on the ground that Aponte was not competent to stand trial. The trial judge then conducted an extended hearing on the issues of Aponte's competence to stand trial, and his competence to waive counsel and represent himself.

The evidence at the hearing consisted of direct and cross examination of three psychiatrists, and their written reports. All three psychiatrists bolstered their pretrial conclusions by references to the defendant's conduct during the trial.

The government's psychiatrists generally viewed Aponte as a paranoid personality, "sociopathic", but not psychotic. These doctors were somewhat guarded in their use of legal definitions, but they said Aponte was competent. The government doctors did not specifically discuss Aponte's competence to waive his right to counsel.

Aponte's court-appointed psychiatrist was of the opinion that Aponte was acutely psychotic and incompetent. He made no distinction between competence to stand trial and competence to make an intelligent waiver of right to counsel.

At the end of the hearing the trial judge found that Aponte was competent to stand trial. The judge stated that he had believed Aponte to be competent both to stand trial and to waive his right to counsel before the trial started and that he had allowed the hearing "out of an overabundance of caution". After denying the motion for a mistrial, the judge instructed the jury. The jury returned a guilty verdict.

The district court's determination of Aponte's competence to stand trial is a finding of fact which may be set aside only if it is clearly erroneous. We cannot say that the judge's competence determination was clearly erroneous in this case.

However, Aponte's conviction must be reversed because the record does not disclose that he knowingly and intelligently waived his right to counsel before electing to represent himself.

In Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) the Supreme Court said:

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. (458), at 464-465, 58 S.Ct. at 1023, (82 L.Ed. 1461). Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, 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.' Adams v. United States ex rel. McCann, 317 U.S., at 279, 63 S.Ct. at 242, (87 L.Ed. 268)."

In United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973), this court suggested that a district court should not grant a defendant's request to proceed Pro se "without addressing the accused personally and determining on the record that the demand to waive counsel and proceed Pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved." 486 F.2d at 186.

In the later case of Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir. 1974), Cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975), we held that although the procedure outlined in Dujanovic was preferred, its omission is not Per se reversible error where the record reveals a knowing and intelligent waiver; however, Cooley presented a fact situation where the trial judge was more familiar than the judge in this case with the defendant's background and experience. In Cooley, the defendant was well versed in the legal procedures and issues involved in his case. Moreover, the trial judge in Cooley advised the defendant on more than one occasion before trial that he would be better off with professional assistance. There was ample evidence that the defendant had been informed of the charges against him, the penalties involved, and the dangers of self-representation. 501 F.2d at 1250-51 n.2.

In the recent case of United States v. Gillings, 568 F.2d 1307 (9th Cir. 1978), this court once again discussed the responsibilities of the trial court in determining whether a defendant has effectively waived his right to counsel before he is allowed to represent himself. In that case we held:

" * * * While no particular form of interrogation is necessary, the court must assure itself that the defendant understands the charges and the manner in which an attorney can be of assistance. The defendant must be aware that he or she will be on his or her own in a complex area where experience and professional training are greatly to be desired. * * * " 568 F.2d at 1308-09.

Faretta teaches that a court cannot force counsel upon a competent defendant who elects, after being fully informed, to represent himself. Dujanovic teaches that the election must be tested before trial and that the record must show the basis for the court's finding that the right to counsel has been competently and intelligently waived.

Although a trial judge's failure to make a specific waiver inquiry is not Per se reversible error, the...