U.S. v. Robinson, 89-10323

Citation913 F.2d 712
Decision Date31 August 1990
Docket NumberNo. 89-10323,89-10323
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Calvin Lyniol ROBINSON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Barry Tarlow and Mark O. Heaney, Law Offices of Barry Tarlow, Los Angeles, Cal., for defendant-appellant.

Laurie K. Gray, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, Chief Judge, SNEED and NOONAN, Circuit Judges.

GOODWIN, Chief Judge:

Defendant-appellant Calvin Lyniol Robinson appeals his conviction for conspiracy to import marijuana and hashish and related offenses, claiming various constitutional violations in connection with the conduct of his trial.

The charges of which Robinson was convicted were based upon the government's seizure of forty-three tons of hashish and thirteen tons of marijuana found welded inside the hull of a barge captained by Robinson. As the jury was being selected for his trial, Robinson made an election to proceed pro se. The district court found that Robinson's waiver was knowing, voluntary, and intelligent and dismissed defense counsel. Robinson represented himself throughout the trial and was convicted on all counts.

I. Validity of Robinson's Waiver

Whether Robinson's waiver of his right to counsel was made knowingly, intelligently, and voluntarily is a mixed question of law and fact which we review de novo. Harding v. Lewis, 834 F.2d 853, 857 (9th Cir.1987), cert. denied, 488 U.S. 871; 109 S.Ct. 182, 102 L.Ed.2d 151 (1988).

The Supreme Court has held that under the sixth amendment a criminal defendant has the right to waive his right to counsel and represent himself, provided that he knowingly, intelligently, and voluntarily elects to do so. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). "Because a defendant normally gives up more than he gains when he elects self-representation," the district court is required to make "reasonably certain that he in fact wishes to represent himself." Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989) (citing Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)).

Under the law of this circuit, the first requirement in this process is that the request to forego the assistance of counsel be unequivocal. Adams, 875 F.2d at 1444; United States v. Smith, 780 F.2d 810, 811 (9th Cir.1986). The fact that some of Robinson's statements of his preference to proceed pro se were accompanied by expressions of his feeling "forced" to do so does not render those statements equivocal. In Adams this court found that the defendant's repeated statements prior to trial that he wished to represent himself if the only alternative was the appointment of a certain attorney as counsel constituted a valid waiver, concluding "[w]hile his requests no doubt were conditional, they were not equivocal." 875 F.2d at 1445 (emphasis added).

The Adams court found its conclusion reinforced when tested against the purposes underlying the unequivocality requirement: the defendant was not seeking to waive his right in a thoughtless manner; he persisted despite the trial court's having engaged him in extensive discussion about the dangers of proceeding pro per; and his request did not appear to be "a momentary caprice or the result of thinking out loud." Id. Applying such a test to the record here similarly supports the district court's conclusion that Robinson's waiver was unequivocal: Robinson appears to have given the issue serious thought (especially considering that he had represented himself throughout a criminal trial once before); his second and subsequent expressions of his decision to proceed pro se were made after a lengthy discourse by the district court on the disadvantages of self-representation; and at no point do Robinson's statements convey the impression that his decision constituted a mere whim or caprice.

Robinson relies upon a pre-Faretta case, Meeks v. Craven, 482 F.2d 465 (9th Cir.1973), in which this court denied habeas corpus relief to a prisoner who claimed that he was improperly denied the right of self-representation at his state-court trial. Given that Meeks made his request only once, in the context of presenting a single motion, and used the words "I think I will" in response to the question of whether he wanted to represent himself, this court affirmed the trial court's refusal of Meeks's request, characterizing it as a "prototype of equivocation." 482 F.2d at 467. In contrast, Robinson sought and was allowed to represent himself during the whole trial, expressed his preference, albeit cagily, several times, and was considered by the district court, after exhaustive examination on the question, to have made a clearly articulated choice. Under these circumstances, and in light of the above analysis under Adams, we find the unequivocality requirement satisfied.

The second requirement under this circuit's reading of Faretta is that the defendant's waiver of the right to counsel must be made knowingly and intelligently; "that is, a criminal defendant must be aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self representation." United States v. Balough, 820 F.2d 1485 1487 (9th Cir.1987). "The preferred procedure to ensure that a waiver is knowingly and intelligently made is for the district court to discuss each of the three elements with the defendant in open court," although a "limited exception may exist" whereby the district court's failure to follow this procedure explicitly "will not necessitate automatic reversal when the record as a whole reveals a knowing and intelligent waiver." Id. at 1488.

Aware of its duty to ensure that Robinson's waiver was made knowingly and intelligently, the district court pointedly discussed with Robinson all three elements outlined in Balough. Robinson contends that because the record reveals that he "had no meaningful understanding of the charges" against him this court cannot find his waiver knowing and intelligent. While it is true that at several points Robinson stated that he did not understand in response to the prosecutor's voir dire with respect to the elements of some of the charges, we agree with the government that Robinson's answers reflect more a disagreement with the charges as they related to him, than a misunderstanding of the nature of the charges themselves.

In addition, we note that the district court went beyond the requirements of Balough in the extensiveness of its discussion with Robinson and that perfect comprehension of each element of a criminal charge does not appear to be necessary to a finding of a knowing and intelligent waiver. Cf. Faretta, 422 U.S. at 836, 95 S.Ct. at 2541-42 (declining to make inquiries into "how well or poorly Faretta had mastered the intricacies of the hearsay rule," given that "his technical knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself").

Also influential in our determination on this point is the fact that the district court made an express finding that Robinson's waiver was knowing and intelligent. See United States v. Moya-Gomez, 860 F.2d 706, 739 (7th Cir.1988) (influential in court's holding that defendant had made a knowing and intelligent waiver was express finding by district court: "This explicit finding by the district court, which had the opportunity to assess by its sustained observation the demeanor of the participant[ ], is entitled to our deference. We think the record shows that [the defendant] made a calculated choice"), cert. denied, --- U.S. ----, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989).

In addition to being knowing and intelligent, a waiver of the right to counsel must also be voluntary. See Patterson v. Illinois, 487 U.S. 285, 292 n. 4, 108 S.Ct. 2389, 2394-95 n. 4, 101 L.Ed.2d 261 (1988). Robinson appears to be arguing that his waiver of counsel was involuntary on two grounds: (1) because he was "forced to choose between ... representation by counsel and access to one box of legal materials" and "pro per representation and access to all his materials" and (2) because exercise of his right to counsel was conditioned upon his acceptance of attorney Paul Wolf as appointed counsel, despite the fact that he had "apparent" disagreements with Wolf about which the district court allegedly failed to inquire.

At the outset, we observe that there is no authority for the proposition that Robinson is entitled to an absolutely unconditional choice between exercising his right to counsel and his right to self-representation. As the Seventh Circuit pointed out in Moya-Gomez :

A voluntary decision to waive counsel is not necessarily one that is entirely unconstrained. A criminal defendant may be asked to choose between waiver and another course of action so long as the choice presented to him is not constitutionally offensive.

860 F.2d at 739.

Accordingly, we confine our review to the question whether the constraints the district court placed upon Robinson's choice to proceed pro se were constitutionally permissible. With regard to the existence of any coercion as a result of Robinson's being faced with the implicit 1 choice of retaining attorney Wolf, with whom he apparently had some tactical and strategy disagreements, and proceeding pro se, the case law of this circuit is in accord with the suggestion in Moya-Gomez that limitations on the range of a defendant's free choice with regard to appointed or retained counsel are not constitutionally offensive and do not render a subsequent election of pro se status involuntary.

In United States v. Flewitt, 874 F.2d 669 (9th Cir.1989), for example, when the district court gave the defendants a choice between accepting the continued services of the counsel...

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