U.S. v. Oakey

• Decision Date: 04 October 1988
• Docket Number: No. 87-3134,87-3134
• Citation: 853 F.2d 551
• Parties: -5379, 88-2 USTC P 9567 UNITED STATES of America, Plaintiff-Appellee, v. James OAKEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 551

853 F.2d 551

62 A.F.T.R.2d 88-5379, 88-2 USTC P 9567

UNITED STATES of America, Plaintiff-Appellee, v. James OAKEY, Defendant-Appellant.

No. 87-3134.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 1988.

Decided July 29, 1988.

As Amended on Denial of Rehearing Oct. 4, 1988.

William H. Theis, Chicago, Ill., for defendant-appellant.

David M. Taliaferro, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY, RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge.

James Oakey, who was convicted of two counts of failure to file an income-tax return, appeals claiming first, that he was denied his constitutional right to represent himself when the court denied his mid-trial motion to proceed pro se, and second, that the district court's failure to sever the tax charges from several racketeering and mail fraud charges, was in error. For the reasons set forth below, we affirm the conviction.

Oakey, a former Cook County traffic court judge and later a practicing attorney in the Cook County misdemeanor courts, was just one of the many defendants netted by Operation Greylord. He was charged with mail fraud, racketeering, and conspiring to violate RICO, and with failing to file tax returns.

Defendant and eleven co-defendants were tried beginning on November 25, 1986. Prior to trial, Oakey moved to have the tax counts severed from the mail fraud and racketeering charges. That motion was denied. During the course of the trial, Oakey's attorney was suddenly taken ill and hospitalized. As a result, on January 6, 1987, the district court was forced to declare a mistrial as to Oakey.

On May 4, 1987, Oakey, who at his own request received appointed counsel, was again tried to a jury. However, Oakey did not file a motion prior to this trial to sever the tax counts from all the other charges against him. On May 15, 1987, the jury found Oakey guilty on all counts.

Oakey then filed a motion for a new trial arguing that his convictions for mail fraud should be reversed in light of the Supreme Court's decision in McNally v. United States, --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). The district court granted defendant's motion on July 20, 1987, and dismissed the mail fraud counts, ordered a new trial on the RICO counts, and affirmed the conviction on the tax counts.

Oakey next moved to stay sentencing on the tax counts until after a new trial on the RICO counts could be held. The court denied this motion and sentenced Oakey on the tax counts. Oakey has now appealed his conviction for failure-to-file.

Oakey raises two issues on appeal. First, he claims he was deprived of his constitutional right to self-representation. At the beginning of the fourth day of his second trial, without consulting his attorney, Oakey suddenly indicated that he wished to address the court. Oakey stated that after mulling it over extensively, he was of the opinion he was not getting enough input in his defense. Although he was pleased with the job his appointed counsel was doing and with their relationship, Oakey requested that his attorney remain in the court only in an advisory capacity.

DEFENDANT OAKEY: I just made the decision when I was not able to talk to Mr. Meyer prior to court this morning, that--and then I will have full use of Mr. Meyer. And I know Mr. Meyer. He will cooperate with me, will help me....

But I want to use my own experience a little bit, my own knowledge of the case, et cetera, to assist in my own defense, and I respectfully ask the court.

(Transcript of the Trial, Vol. IV, pp. 520-21). After hearing argument from both Oakey's trial counsel, who expressed the opinion that Oakey had the right to represent himself, and from the government, which argued that Oakey had no right to request self-representation in the middle of the trial, the court denied Oakey's request.

The court ruled initially that Oakey's attorney had been doing a commendable job and that he frequently consulted with Oakey throughout the trial. The court also said:

In addition to that, if you will recall, Mr. Oakey, at the time that you asked for your mistrial, you told me that you weren't competent to represent yourself. You told me that. And that was one of the bases upon which I granted the mistrial back then.

(Transcript, Vol. IV, p. 528).

Following the court's comment, Oakey again asked to address the court, this time disclaiming that he wanted to proceed pro se.

DEFENDANT OAKEY: I read the Chicago Lawyer last night, so I know all the federal rules.

No, I did not ask to represent myself. I asked that I represent myself as well as having the assistance and the guidance of Mr. Meyer. And I do admit ... that I am unfamiliar with the federal rules....

(Transcript, Vol. IV, p. 524).

Clearly, a defendant has the constitutional right to conduct his own defense. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); 28 U.S.C. Sec. 1654. However, a defendant may not engage in "hybrid" representation by acting as co-counsel along with either a court-appointed attorney or with his own attorney. McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984). Hybrid representation is disfavored since it allows a defendant to address the jury, in his capacity as counsel, without being cross-examined, in his capacity as a defendant. United States v. Tucker, 773 F.2d 136 (7th Cir.) cert. denied, 478 U.S. 1022, 106 S.Ct. 3338, 92 L.Ed.2d 742 reh'g denied, 478 U.S. 1035, 107 S.Ct. 23, 92 L.Ed.2d 774 (1985). Furthermore, although a defendant has the right to proceed pro se, a request to do so must be made in a timely fashion. United States v. Smith, 780 F.2d 810 (9th Cir.1986) (demand for self-representation must be made before meaningful trial proceedings, such as jury selections, begin; demand is untimely when made on the third day of trial); Fulford v. Maggio, 692 F.2d 354 (5th Cir.1982), rev'd on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794, reh'g denied, 463 U.S. 1236, 104 S.Ct. 29, 77 L.Ed.2d 1451 (1983) (right to pro se defense is not absolute once trial begins; trial court has discretion to balance alleged prejudice to defendant against potential disruption and delay); Brown v. Wainwright, 665 F.2d 607 (5th Cir.1982) (request to assume defense prior to closing arguments on third day of trial held untimely); United States v. Lawrence, 605 F.2d 1321 (4th Cir.1979) cert. denied, 444 U.S. 1084, 100 S.Ct. 1041, 62 L.Ed.2d 770 (1980) (request to proceed pro se must be timely).

We think the district court properly denied Oakey's request to proceed pro se for two reasons. First, Oakey's request, made prior to the fourth day of trial, was obviously not timely. U.S. v. Smith, supra; U.S. v. Lawrence, supra. We agree with these decisions and now find that where a request to proceed pro se is untimely, a court, may in its discretion, deny the motion. Second, even if timely, Oakey's request was ambiguous. Though conceding that his appointed (not standby) attorney was doing an admirable job, Oakey sought more input in his defense. At first, it appeared that he was asking to proceed pro se, retaining his attorney only as stand-by counsel. Then, almost with the same breath, Oakey admitted he was not familiar with the federal rules and that he was not asking to represent himself. We can only conclude that Oakey was asking to act as co-counsel.

As already stated, this hybrid form of representation is not permissible. "A defendant does not have a constitutional right to choreograph special appearances by counsel." 465 U.S. at 183, 104 S.Ct. at 953.

The constitutional right to self-representation necessarily entails a waiver of the constitutional right to be represented by counsel....

When a defendant refuses to waive his right to counsel, while demanding to proceed pro se, the trial court will find it hard to know which constitutional right is being asserted....

Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987). A demand to proceed pro se must be unequivocal. Id.; Meeks v. Craven, 482 F.2d 465 (9th Cir.1973).

Oakey's ambivalence is only too evident from his dialogue with the court. We do not believe Oakey clearly waived his right to representation or made his motion in a timely fashion and thus, we find that his motion to proceed pro se was properly denied.

Oakey's second argument on appeal is that the court erred when it failed to sever the failure to file counts from the racketeering and mail fraud counts. Oakey claims the joinder of the tax counts with the other counts was improper both under Fed.R.Crim.P. 8(a) and Fed.R.Crim.P. 14.

From the record presented to us at the time of oral argument, it appeared the Oakey had waived this claim by failing to seek severance of the tax counts at his second trial. A supplement to the record filed by Oakey now discloses that the district judge at the first trial held that all Oakey's pretrial motions and the respective rulings thereon would carry over to the second trial. Thus, Oakey's motion for severance was preserved. ¹

Under Fed.R.Crim.P. 8(a), two or more offenses may be brought in the same indictment if they are of:

... similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a...