U.S. v. Arlt

• Decision Date: 01 December 1994
• Docket Number: 92-50517,Nos. 92-50467,s. 92-50467
• Citation: 41 F.3d 516
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Charles Wesley ARLT, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 516

41 F.3d 516

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Charles Wesley ARLT, Defendant-Appellant, Cross-Appellee.

Nos. 92-50467, 92-50517.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 12, 1994.

Decided Dec. 1, 1994.

Gail Ivens, Ivens & Weston, Pasadena, CA, for defendant-appellant-cross-appellee.

Dean G. Dunlavey, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Central District of California.

Before: POOLE, REINHARDT, Circuit Judges, and TANNER, ^* District Judge.

REINHARDT, Circuit Judge:

BACKGROUND

Charley Wesley Arlt was convicted of conspiring to manufacture methamphetamine and money laundering. He appeals his conviction on various grounds. Here we address only Arlt's self-representation claim. In a memorandum disposition accompanying this opinion, we deal with Arlt's other claims, as well as those of his codefendants.

During a pretrial hearing, Arlt requested that he be permitted to represent himself at trial. After the district judge extensively discussed the disadvantages of self-representation, Arlt repeated his request. Before ruling on the motion, the district judge required Arlt to consult with a court-appointed attorney. After the consultation, Arlt again stated that he wished to proceed pro se. Despite the clarity and persistence with which Arlt made his request, the district judge denied Arlt's motion on the ground that a poorly formulated petition filed by Arlt indicated that he was not competent to represent himself. Over Arlt's objection, the judge then appointed an attorney to represent him.

Even after the judge appointed counsel, Arlt renewed his request. Indeed, Arlt stated that he was demanding to represent himself. The judge brushed aside the demand, saying, "[y]ou can demand anything you want, but ... I find that you're incompetent to represent yourself."

Two months later, Arlt made a motion to substitute counsel to replace the attorney appointed by the judge over his objections with an attorney of his own choosing. The Arlt appeals, claiming that the district judge erred in denying his request for self-representation and in finding that he had waived his request by making a motion for substitution of counsel. We agree.

district judge held a hearing and granted the motion. At the beginning of the hearing, the judge again stated that the petition Arlt had previously filed demonstrated that he was not competent to represent himself. Later in the same hearing, the government attorney asked the judge to inquire of Arlt whether, by asking for a different counsel, Arlt was withdrawing his request for self-representation. The judge refused. Instead, he ruled that Arlt had already "rendered moot" his earlier request. When the government repeated the request, the district judge again refused to make the inquiry. In explaining his refusal, the district judge stated for the fourth time in two pretrial hearings that he would not allow Arlt to proceed pro se. He further explained that no inquiry was necessary because Arlt had already waived his right to represent himself merely by filing the motion to substitute counsel. Neither Arlt nor his attorney took part in the discussion.

ANALYSIS

A. Competency to Elect Self-Representation

The district judge found that Arlt was not competent to choose to proceed pro se because he believed that Arlt's filing of a rambling and illogical petition that was without legal basis or merit demonstrated that Arlt could not represent himself competently. In denying Arlt's request that he be permitted to represent himself on this ground, the district judge erred as a matter of law. See Godinez v. Moran, --- U.S. ----, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).

In Godinez, the Supreme Court rejected "the notion that competence ... to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard." Godinez, --- U.S. at ----, 113 S.Ct. at 2686. The Dusky standard for measuring a defendant's competency to stand trial focuses upon whether "the defendant has a 'rational understanding' of the proceedings." Id. at ----, 113 S.Ct. at 2686; see also Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam).

Indeed, the Supreme Court's decision in Godinez explicitly forbids any attempt to measure a defendant's competency to waive the right to counsel by evaluating his ability to represent himself. The Court notes that "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." Godinez, --- U.S. at ----, 113 S.Ct. at 2687. It adds that " 'technical legal knowledge' is 'not relevant' to the determination whether [a defendant] is competent to waive his right to counsel." Id. (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)); see also Peters v. Gunn, 33 F.3d 1190, 1192 (9th Cir.1994).

If Arlt was competent to stand trial, he was competent to choose to proceed pro se. The filing of meritless motions without a logical or legal foundation does not in itself justify the denial of a defendant's Sixth Amendment right to represent himself. We have previously noted that "the defendant['s] constitutional right of self-representation may not be abrogated because [he] ... ma[de] vague and poorly formulated motions." United States v. Flewitt, 874 F.2d 669, 673 (9th Cir.1989). Here, as in Flewitt, the motion demonstrated only a lack of legal competence, not an impairment of the defendant's ability to comprehend the nature of the proceedings. Thus, the record does not support the district court's finding that Arlt was not competent to represent himself. ¹

B. The Validity of Arlt's Waiver

Given that Arlt was competent to represent himself, his decision to waive his right to counsel was valid if his request was timely, not for the purposes of delay, unequivocal, and knowing and intelligent. United States v. Schaff, 948 F.2d 501, 503 (9th Cir.1991).

1. The Request Was Timely and Not for the Purposes of Delay

Arlt's request, filed six months before trial, was clearly timely. "A motion to proceed pro se is timely if made before the jury is impaneled, unless it is shown to be a tactic to secure delay." Flewitt, 874 F.2d at 679; see also Schaff, 948 F.2d at 503.

Arlt's request was not made for the purpose of delay. Nothing in the record suggests the contrary. Indeed, Arlt stated that he would accept a court-appointed attorney as an advisor to assist him with his motions and instructions even though such a concession was not required of him; in doing so, Arlt indicated a willingness to facilitate the trial process. ²

2. Arlt's Request Was Unequivocal

In addition, Arlt's request to proceed without counsel was unequivocal. A defendant must make an explicit choice between exercising the right to counsel and the right to self-representation so that a court may be reasonably certain that the defendant wishes to represent himself. Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989). This requirement protects against two unacceptable occurrences: an inadvertent waiver of the right to counsel by a defendant's "occasional musings on the benefits of self-representation" and manipulation by the defendant of the mutually exclusive rights to counsel and self-representation. Id.

The trial record clearly demonstrates that Arlt did not make the request thoughtlessly or as a "musing." Prior to his announcement, he explained his intentions to his attorney, whose partner attempted to dissuade him from such a course. At the hearing, the district judge lectured Arlt on the disadvantages of self-representation. Further, the judge ordered a meeting between Arlt and a court-appointed attorney. Throughout these events, Arlt persisted in seeking the right to represent himself. Even when the judge had categorically denied his motion and appointed counsel for him, Arlt nevertheless repeated his request by noting that he was demanding the right. The clarity and forcefulness of Arlt's request demonstrates that he unequivocally articulated his decision to proceed pro se. See Adams, 875 F.2d at 1445 (noting that a defendant's choice was unequivocal because he "took one position and stuck to it").

There is also no evidence to indicate that Arlt was attempting to manipulate the proceedings. He never attempted to use vague language that might lay the groundwork for a future appeal. Indeed, had the district judge granted Arlt's request, the explicit and persistent manner in which Arlt made his demand would have prevented him from pursuing a claim of inadequate waiver on appeal. Thus, in the case at hand, the defendant made the choice required by Adams, but his choice was overridden by the district court.

The government argues that Arlt's conduct during a later hearing demonstrated equivocation and that he was therefore under an obligation to renew his motion for self-representation. First, it asserts that we should find that Arlt abandoned his desire to represent himself, or at least created ambiguity on that point, because he made a motion to substitute counsel. As we discuss in greater detail below, the fact that Arlt made a motion to substitute counsel provided absolutely no basis for a conclusion that he no longer wished to represent himself. Nor did his The government also asserts that an ambiguity was created by Arlt's failure to register an objection after the court ruled that by making the motion to substitute counsel he had waived his right to self-representation. The government's argument is without merit. Arlt had no obligation to announce that he objected to the court's erroneous ruling. His silence following the ruling does not in any way indicate equivocation on his part, absent some affirmative evidence in the record that he had...