877 F.2d 281 (4th Cir. 1989), 88-5803, United States v. West

Docket Nº:88-5803, 88-5808, 88-5809, 88-5810.
Citation:877 F.2d 281
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Frances WEST, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bradley David THOMAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Matthew Mervin MILLS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James J. WILLIAMSON,
Case Date:June 08, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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877 F.2d 281 (4th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Frances WEST, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Bradley David THOMAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Matthew Mervin MILLS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

James J. WILLIAMSON, Defendant-Appellant.

Nos. 88-5803, 88-5808, 88-5809, 88-5810.

United States Court of Appeals, Fourth Circuit

June 8, 1989

Argued Nov. 4, 1988.

Rehearing Denied in No. 88-5808 Sept. 1, 1989.

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Andrew Cotzin (Joel Hirschhorn, Joel Hirschhorn, P.A., on brief), Thomas Roy Michael, Randy Dean Gossett (Don A. Yannerella on brief), Brent E. Beveridge, for defendants-appellants.

Thomas Oliver Mucklow, Asst. U.S. Atty. (William A. Kolibash, U.S. Atty., Lisa A. Grimes, Sp. Asst. U.S. Atty., on brief) for plaintiff-appellee.

Before RUSSELL and WILKINSON, Circuit Judges, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.

TERRENCE WILLIAM BOYLE, District Judge:

Charles Frances West, Jr., Bradley David Thomas, Matthew Mervin Mills, and James J. Williamson appeal their convictions on various drug-related charges arising out of a 108-count indictment. We affirm, except for West's conviction on Count 57 for unlawful use of a communication facility, which we reverse, and Thomas's sentence for his conspiracy conviction on Count 4, which we set aside.

I.

The 18-day trial revealed the defendants' participation in an organization engaged in the large-scale importation and distribution of marijuana and cocaine. Drugs were smuggled into Florida, primarily from the Bahamas and Jamaica, and distributed in the Ohio Valley and Wheeling, West Virginia areas. Thomas was the ringleader in direct or indirect control of all the organization's activities. West was a major distributor. Mills became involved initially as a distributor and later as overseer of the "safehouses" used to store and distribute the drugs. Williamson was a courier who transported drugs and money between Florida and the Ohio Valley.

A11 four defendants were convicted of conducting, and conspiring to conduct, an enterprise through a pattern of racketeering activity, 18 U.S.C. Secs. 1962(c) and (d), and conspiracy to distribute and possess with intent to distribute cocaine. 21 U.S.C. Sec. 846. In addition, Thomas was convicted of engaging in a continuing criminal enterprise, 21 U.S.C. Sec. 848, eight counts of distribution of cocaine, 21 U.S.C. Sec. 841(a)(1), seventeen counts of interstate travel in aid of a racketeering enterprise, 18 U.S.C. Sec. 1952(a)(3), and two counts of tax evasion, 26 U.S.C. Sec. 7201; Mills was convicted on nineteen counts of distribution of cocaine and eleven counts of interstate travel in aid of a racketeering enterprise; West was convicted on twenty-two counts of distribution of cocaine, two counts of interstate travel in aid of a racketeering enterprise, and three counts of using a communication facility to facilitate the distribution of cocaine, 21 U.S.C. Sec. 843(b); and Williamson was convicted on one count of distribution of cocaine and one count of distribution of marijuana. A judgment of forfeiture was also entered under 18 U.S.C. Sec. 1963(a) with respect to vehicles and real property found

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to have been utilized by the defendants in violation of 18 U.S.C. Sec. 1962 (RICO).

II.

Mills contends he was denied effective assistance of counsel as the result of various rulings by the district court concerning his pro se status. Mills and Williamson initially retained attorney Donald Yannerella to represent them at the detention hearing on July 15, 1987 and the arraignment the next day. The district court, finding good cause to believe no conflict of interest was likely to arise, subsequently accepted Mills' and Williamson's waivers of their right to separate counsel and allowed both to proceed with Mr. Yannerella.

On September 28, 1987, less than a month before the scheduled trial date of October 26, the district court received a letter from Mills stating that he had dismissed Mr. Yannerella as his counsel and requesting leave to proceed pro se. A hearing was held on October 8 at which the court inquired into Mills' educational background and his knowledge of the pending charges. The court informed Mills that he faced 43 counts having total penalties of 470 years to life imprisonment and $4,190,000 in fines. He was advised repeatedly of the dangers and disadvantages of self-representation. He was also told that the case would not be continued because of his pro se status. Despite the district court's exhortations against trying to represent himself and warning that the court would not act as his attorney, Mills reiterated his desire to proceed pro se. He stated that he was dissatisfied with Mr. Yannerella's representation because "his work has produced limited results by motions he has filed, several disagreements with me on my defense, and more." He admitted to having no legal experience but said that "I am going to base myself on the truth and that is all there is to it."

The district court found that Mills had no good cause to dismiss his attorney and expressed doubt about his ability to represent himself. However, the court also found that he had waived his right to counsel knowingly and intelligently and therefore accepted his waiver and granted leave to proceed pro se. He was told that he could retain standby counsel or that one would be appointed upon a showing of indigency.

Mills subsequently changed his mind and informed the court that he no longer desired to defend himself. A second hearing was held on October 15, 1987 at which Mills requested the court to appoint Mr. Yannerella to represent him. Although Mills had previously retained Mr. Yannerella, he said that he could not afford his fees and that he was too embarrassed to say so at the earlier hearing. Due to the thorough and extensive nature of that hearing and the fact that the trial was only eleven days away, the district court refused to accept Mills' waiver of his previously asserted right to self-representation. However, the court did appoint standby counsel and told Mills that "you can decide just how far you want to proceed on your own and how far you want your counsel to help you." Mills filed several pre-trial motions, including a request for a psychiatric evaluation, which were denied. 1

On the first day of trial, before Mills gave his opening statement, he received cautionary instructions in regard to his pro se representation. He was told that he would be held to the same rules of law, procedure and evidence governing the other attorneys, that he must refrain from speaking in the first person, that he must avoid reference to his co-defendants in his opening and closing statements without

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the court's prior approval, and that he must not refer to matters not in evidence. The district court warned Mills that if he did not abide by these restrictions his pro se status would be terminated and he would have to proceed with standby counsel.

Mills delivered his opening statement, ending it as follows:

Although I am not a professional, I will do the best that my ability will allow, and I hope you will bear with me. I hope you will believe in our country's motto, innocent until proven guilty, not the complete opposite of guilty until proven innocent, which both the Court and the Government appear to have forced upon me.

At last, with all my respect to Mr. Hirschhorn, Mr. Michael, Mr. Gossett, Mr. Yannerella, for all the work they have done and all the ability they have, gentlemen, I feel we are somewhat at a disadvantage due to all that we have said, all that we have tried, and mostly, all our motions we have filed which have been denied. Men, I definitely feel we are not the home team.

I ask of you and pray to you, the jury, treat us not like the visitors. Thank you.

The following day the district court found Mills incompetent to represent himself on the basis of these statements and appointed his standby counsel, Thomas Bedell, to replace him. Mr. Bedell immediately moved for a continuance on the ground that he was unprepared to act as counsel because of his appointment to the case only eleven days before trial. This motion was denied.

Mills contends that the "cumulative effect" of the district court's various rulings deprived him of a fair trial. We find no error in any of these rulings, either individually or cumulatively. The district court accepted Mills' initial decision to dismiss his attorney and proceed pro se only after thoroughly apprising him of the dangers and disadvantages of self-representation. Mills' subsequent protestations of embarrassment do not rebut the district court's finding, supported by the record as a whole, that he waived his right to counsel knowingly and intelligently. See United States v. Gallop, 838 F.2d 105, 109-10 (4th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).

Nor was it error to deny Mills' subsequent request eleven days before trial to substitute Mr. Yannerella for himself as counsel. The determination of whether or not a motion for substitution of counsel should be granted is within the trial court's discretion, and the court is entitled to take into account the countervailing public interest in proceeding on schedule. Gallop, 838 F.2d at 108. This countervailing interest has no less weight merely because the motion is filed by a pro se defendant. See Sampley v. Attorney General of...

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