Hodge v. United States

• Decision Date: 03 July 1969
• Docket Number: No. 20517.,20517.
• Parties: Aaron HODGE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

414 F.2d 1040 (1969)

Aaron HODGE, Appellant, v. UNITED STATES of America, Appellee.

No. 20517.

United States Court of Appeals Ninth Circuit.

July 3, 1969.

John H. Colteaux (argued), of Hanson, Bridgett, Marcus & Jenkins, San Francisco, Cal., for appellant.

Shelby R. Gott (argued), Asst. U. S. Atty., Edwin L. Miller, Jr., U. S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY and HUFSTEDLER, Circuit Judges.

MERRILL, Circuit Judge:

In this case a panel of this court, by divided vote, reversed the District Court. This court, in banc, then took the case on rehearing. We affirm.

Appellant stands convicted of the transportation of a stolen motor vehicle in foreign commerce in violation of 18 U.S.C. § 2312. On this appeal he contends that he was, without intelligent waiver, deprived of the assistance of counsel.

The record shows that on arraignment February 8, 1965, five days after filing of the indictment, counsel was appointed to represent appellant and continued to represent him up to the original trial date, March 16, 1965. On that date appellant expressed the desire to represent himself and trial was continued to March 23, 1965, before a different judge, with appellant then representing himself. Although acceding to appellant's insistence upon self-representation, the court on March 16 nevertheless directed appointed counsel to be present to lend such assistance as would be desired by appellant. At all stages appellant was either represented by counsel or had counsel available for assistance.

The case thus does not present the question of waiver of right to counsel in the typical trial setting exemplified by Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), where counsel was neither requested nor offered and the defendant contended that he was ignorant of his right to be represented.

Here appellant clearly knew of his right. His "waiver" lay in his assertion of his right to represent himself¹ — a right the court could not properly deny. 28 U.S.C. § 1654; Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967); Reynolds v. United States, 267 F.2d 235 (9th Cir. 1959). The question, then, is whether his assertion of this right was "intelligent."² In this context we take this to mean whether he was sufficiently informed of the consequences of his choice. In our judgment he was.³

The question before the judge was not whether the defendant was professionally capable of acting as his own lawyer. Few defendants are, and the right of self-representation is not so conditioned. The question was simply whether the defendant understood the charges against him and was fully aware of the fact that he would be on his own in a complex area where experience and professional training are greatly to be desired.

Appellant contends that the warnings of the judges were not sufficient since the standard to be followed by a judge in communicating intelligence is that set forth in Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 322, 92 L. Ed. 309 (1948):

"To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge\'s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused\'s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered."

We note first that appellant makes no showing that he was prejudiced by the failure of the District Court to follow Von Moltke. Nowhere is there any suggestion that specific Von Moltke information was unknown to him and that, possessed of that information, he would have changed his mind about representing himself. The record convincingly suggests the contrary.⁴

However, we do not in any event regard Von Moltke as the appropriate guide to the trial judge in a situation such as this. While its language was couched in general terms of right to counsel and a waiver of such right, the court in Von Moltke was clearly concerned with waiver of counsel occurring contemporaneously with a plea of guilty. The informational items recited as essential to an intelligent waiver relate to such a plea and serve to assure that a defendant understands the consequences of confessing guilt and that he knows enough of the law to be able intelligently to reach the conclusion that he is guilty under the law.

Such colloquy has no place in a case where guilt is denied and an offer of counsel is rejected. Attempts to relate it to such a case would seem to subject the defendant to a questionable pretrial probing of his defenses.

We conclude that appellant waived his right to be represented by counsel by an intelligent assertion of his right of self-representation.

Appellant contends that he was, in any event, entitled to be represented by counsel at the time of sentencing. In absence of any indication to the contrary by appellant, the court was entitled to assume that the waiver was still in effect. White v. United States, 354 F.2d 22 (9th Cir. 1965). Furthermore, appellant's advisory counsel was present on that occasion for such use as appellant chose to make of him. His failure to utilize him, with full knowledge of his right to do so, amounted to waiver.

Appellant contends that refusal to release him on his own recognizance pending trial was an abuse of discretion and prejudiced him in preparation for trial. Abuse of discretion does not appear. Appellant had counsel for five weeks prior to the request, which was made on the scheduled date of trial. Appellant was from out of state, with no local contacts, family or otherwise, willing to vouch for him. On these facts, the judge could properly conclude that it was not reasonably certain that the defendant would appear.

Appellant contends that he was not permitted to call witnesses and was forced to go to trial unprepared. The record does not bear this out. On March 23 appellant expressed a desire to subpoena certain witnesses and the judge stated that the motion would be taken up later. After ascertaining the Government's readiness to proceed, appellant and his advisory counsel were taken into chambers and the judge invited appellant to present his motions. After conferring with advisory counsel appellant moved to disqualify the judge before whom he had appeared on March 16. He was advised that he would not be tried by that judge and was asked if he had any further motions to make. Appellant stated that that was all and indicated his readiness to proceed to trial. Nothing was then said about obtaining witnesses. We find no error in proceeding to trial under these circumstances.

Appellant complains that certain evidence came in that would have been held inadmissible had objection been interposed. This, of course, was a risk he took in representing himself.

Appellant complains that it was somehow unfair for the Government to introduce testimony regarding his veracity after he had testified. This is without merit. Such testimony is admissible once the defendant takes the stand. Sawyear v. United States, 27 F.2d 569 (9th Cir.), cert. denied, 278 U.S. 650, 49 S.Ct. 96, 73 L.Ed. 562 (1928); United States v. Walker, 313 F.2d 236 (6th Cir.), cert. denied, 374 U.S. 807, 83 S.Ct. 1695, 10 L. Ed.2d 1031 (1963).

We find no merit in the contention that appellant was prejudiced by the presence of advisory counsel. Bayless v. United States, 381 F.2d 67 (9th Cir. 1967).

Judgment affirmed.

ELY, Circuit Judge, with whom HUFSTEDLER, Circuit Judge, joins (dissenting):

I respectfully dissent. The panel which originally heard this appeal consisted of Judge Merrill, District Judge Albert Lee Stephens, Jr.,^A and me. With Judge Merrill dissenting, the panel determined that the judgment of conviction must be reversed. Its disposition was based solely upon the conclusion, carefully explained, that the record, when viewed in the light of the strict standards of existing precedents, did not adequately disclose a "knowing and intelligent" waiver by the appellant of his constitutional right to trial counsel. Of the opinions, in slip form, it has been written, "The interpretation of the majority is to be preferred. * * * It is proper that the safeguards placed on `the crucial rights of one insisting upon his innocence' be equal to `the rights of one who seeks to confess a crime by a plea of guilty.'" Comment, Waiver of Counsel — Hodge v. United States, No. 20,517 (9th Cir., Mar. 5, 1968), 20 Hastings L.J. 965, 971 (1969).

Following a rehearing in banc, the original panel's decision is now overruled by the majority. I maintain my original views, and on the issue considered by the original panel, I can now express them in no better way than by reiterating the original panel's principal opinion, of which I was the author.

At this point, however, I am first compelled to express disagreement with the majority's disposition of a significant issue which, owing to the restricted ground upon which the disposition by the original panel was based, I have not hitherto discussed. That issue involves the question of whether, "knowingly and intelligently," the appellant waived his right to the presence of counsel at the sentencing proceedings in the District Court. The majority rather casually disposes of this difficult problem by reasoning that once...