United States v. Ross

• Decision Date: 31 December 2012
• Docket Number: 09–1860.,Nos. 09–1852,s. 09–1852
• Citation: 703 F.3d 856
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bryan ROSS (09–1852) and Robert Burston (09–1860), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

703 F.3d 856

UNITED STATES of America, Plaintiff–Appellee,

v.Bryan ROSS (09–1852) and Robert Burston (09–1860), Defendants–Appellants.

Nos. 09–1852, 09–1860.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 6, 2011.

Decided and Filed: Dec. 31, 2012.

ARGUED:Patricia Annette Streeter, Ann Arbor, Michigan, for Appellant in 09–1852. William J. Winters III, Livonia, Michigan, for Appellant in 09–1860. Craig A. Weier, United States Attorney's Office, Detroit, Michigan, for Appellee in 09–1852 and 09–1860. ON BRIEF:Patricia Annette Streeter, Ann Arbor, Michigan, for Appellant in 09–1852. William J. Winters III, Livonia, Michigan, for Appellant in 09–1860. Craig A. Weier, United States Attorney's Office, Detroit, Michigan, for Appellee in 09–1852 and 09–1860.

Before: BOGGS and STRANCH, Circuit Judges; CARR, District Judge. ^*

STRANCH, J., delivered the opinion of the court in which CARR, D.J., joined, and BOGGS, J., joined in part. BOGGS, J. (pp. 886–87), delivered a separate opinion concurring in part and dissenting in part from Section II.A.2 of the majority opinion.

OPINION

JANE B. STRANCH, Circuit Judge.

In this joint direct criminal appeal, Bryan Ross and Robert Burston raise several challenges to their convictions on multiple charges relating to a counterfeit-check scheme. The prosecution alleged that Ross orchestrated a conspiracy to purchase vehicles with counterfeit checks and then quickly resell the vehicles. Burston was one of several alleged co-conspirators who carried out the plan, the rest of whom accepted plea agreements which required their testimony against Ross and Burston. Ross presents ten issues for appeal and Burston six, four of which overlap, for a total of twelve types of claims. For the reasons stated below, we AFFIRM Burston's conviction. We REMAND for an evidentiary hearing to determine whether Ross was unconstitutionally deprived of representation during his pre-trial competency hearing. If the district court determines that he was, Ross's conviction and sentence are vacated; if not, both are affirmed.

I. BACKGROUND

On October 16, 2007, Ross and Burston were among five defendants named in an indictment which listed one count of engaging in a conspiracy to utter counterfeit securities and seven substantive counts related to the conspiracy. The indictment described the conspiracy as a scheme “to obtain motor vehicles from private sellers by uttering worthless, counterfeit ‘official checks,’ purportedly issued by Comerica Bank ... to the private owners of the motor vehicles” and then quickly reselling the cars. Each defendant was named in the conspiracy count; Ross was named in six substantive counts while Burston was named in one. The prosecution told the jury at trial that Ross was the man who “conceived the scheme” and was “primarily responsible for orchestrating” it. Burston was a “willing participant” who engaged in the sale and resale of several vehicles. Before trial, Ross exhibited bizarre and paranoid behavior which led to the withdrawal of three court-appointed attorneys. On May 13, 2008, while being represented by the third attorney, Allen Early, Ross filed a motion to waive counsel and represent himself. On May 16, the Government filed a motion for a competency examination and hearing. The court denied both motions in an order dated June 2. At the motions hearing, the court made no finding as to Ross's ability to represent himself and denied Ross's motion solely on the ground that his indigent status would qualify him for various court services and “I am quite reluctant to authorize funds to be spent by a Defendant pro se” because of the lack of “professional oversight that is required to make sure that those funds are spent in a sensible and a legal way.” The court did, however, tell Ross that it would entertain another motion to waive counsel closer to the start of trial.

With respect to the Government's competency motion, the court found that Ross's signs of delusion and paranoia and his inability to get along with his lawyers did not give reasonable cause to order a psychiatric exam at that time, but “urge[d] all Counsel, however, that if there are additional developments that cause Counsel to question the conclusions that I have just made on the record, to bring them to my attention and I will reassess at any time.”

On June 10, 2008, just over one week after the denial of his original motion, Ross filed another motion “to substitute counsel until trial” which also noted Ross's continued desire to represent himself. The court denied Ross's request to be appointed a new attorney but, after inquiring into Ross's knowledge and ability to represent himself, found that Ross “knowingly and voluntarily waived his right to counsel” and appointed Early to be standby counsel.

On July 30, the Government filed a second motion for a competency examination and hearing, which was granted on August 5. Ross was not reappointed full-time counsel in advance of the hearing. On October 29, the court held the competency hearing based on the report of a court-appointed psychologist and the court's own observations and found Ross to be competent to stand trial. On December 9, the court denied a motion by Ross to dismiss Early from further involvement in the case but granted Early's oral motion at the hearing to withdraw, finding that Ross “had poisoned the relationship” with “unsupported allegations” and “abusive behavior.” The following day, the court appointed a new attorney, Richard Korn, to serve as standby counsel.

After an eight-day joint trial beginning on February 4, 2009, Ross was convicted of conspiracy and five of the six substantive counts against him. He was sentenced to sixty months' imprisonment for the conspiracy count and seventy-eight months for each substantive count, all to be served concurrently. Burston was convicted of conspiracy and acquitted of the substantive count. He was sentenced to thirty months in prison. Each filed a timely notice of appeal.

II. DISCUSSION

A. Competency to waive and proceed without counsel

Ross's first claim is that the trial court erred in permitting him to waive representation of counsel and to represent himself because he was not competent to do either. Ross also raises a related claim that the trial court should have reappointed counsel for his competency hearing. Although the court did not err in allowing the initial waiver of counsel, we hold that the court did commit error when, upon granting a competency hearing, it failed to reappoint full-time counsel to represent Ross until the issue of competency was resolved. Whether Ross was unconstitutionally deprived of counsel at that hearing depends on the extent to which his standby counsel conducted an adequate investigation and subjected evidence of competency to meaningful adversarial testing, a determination which requires an evidentiary hearing.

1. Waiver of counsel determination

The Sixth Amendment guarantees criminal defendants both the right to trial counsel and the right to proceed without counsel. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, “the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer.” Martinez v. Court of Appeal of Cal., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). “While the Constitution does not force a lawyer upon a defendant, it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 87–88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (citations and internal quotation marks omitted).

This Court has not clearly identified the appropriate standard of review for a trial court's decision to allow waiver of counsel. See United States v. Williams, 641 F.3d 758, 766 (6th Cir.2011). Some prior decisions apply a de novo review while others review for plain error. See United States v. McBride, 362 F.3d 360, 365–66 (6th Cir.2004) (discussing the conflicting standards of review applied in this Circuit). McBride and other cases left this question unresolved because each concluded that waiver was proper in that case under either standard. We also decline to resolve the question because it does not appear to be dispositive in this case and the parties have not explored the distinction.

When an accused wishes to represent himself, the district court “must ask the defendant a series of questions drawn from, or substantially similar to, the model inquiry set forth in the Bench Book for United States District Judges.” Williams, 641 F.3d at 766 (internal quotation marks omitted). The model inquiry comprises thirteen questions about the defendant's familiarity with the law, the legal system, and the charges against him. Id. at 767. Substantial compliance with this series of questions is sufficient. United States v. Cromer, 389 F.3d 662, 680 (6th Cir.2004). The inquiry must be followed by a strong admonishment that the court recommends against the defendant trying to represent himself. Williams, 641 F.3d at 767. Here, the record shows that the district court conducted the proper colloquy, admonishments, and findings before allowing Ross to waive counsel. Indeed, the court performed the required steps on multiple occasions throughout the course of the pre-trial proceedings, in particular at the May 30, 2008 hearing in which the judge denied Ross's self-representation motion without prejudice and the June 16, 2008 hearing in which Ross's subsequent motion for self-representation was granted.

Even if the model inquiry is followed, the waiver of counsel must also be made “knowingly and intelligently.” United States v. Kidwell, 217 Fed.Appx. 441, 445–46 (6th Cir.2007) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). When there is “reason to doubt the defendant's competence,” a court should make a competency determination before finding the waiver to be valid....