U.S. v. Balough

• Decision Date: 02 July 1987
• Docket Number: No. 84-5294,84-5294
• Citation: 820 F.2d 1485
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Floyd BALOUGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1485

820 F.2d 1485

UNITED STATES of America, Plaintiff-Appellee, v. Floyd BALOUGH, Defendant-Appellant.

No. 84-5294.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 30, 1986.

Decided July 2, 1987.

Phillip H. Cherney, Palo Alto, Cal., for defendant-appellant.

Robert Pallemon, James R. Asperger, Los Angeles, Cal., for plaintiff-appellee.

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

Before NELSON, HALL and KOZINSKI, Circuit Judges.

NELSON, Circuit Judge:

Floyd Balough appeals his conviction on two counts of bank robbery by use of a dangerous weapon in violation of 18 U.S.C. Sec. 2113(a)(d) (1982). Balough contends that he did not knowingly and intelligently waive his right to counsel and that the district court abused its discretion in denying his motion to withdraw his guilty plea. Because we agree that Balough did not knowingly and intelligently waive his sixth amendment right to counsel, we reverse and remand for reconsideration of Balough's motion to withdraw his guilty plea.

I. BACKGROUND

Floyd Balough was indicted on three counts of bank robbery by use of a dangerous weapon in violation of 18 U.S.C. Sec. 2113(a)(d) (1982). Following a pretrial motion to suppress evidence, Balough pleaded guilty on July 17, 1984 to two of the counts and the government agreed to drop the third count. Throughout these proceedings, Balough was represented by appointed counsel.

While represented by appointed counsel, Balough filed motions to withdraw his guilty plea and to appear pro se. On September 24, 1984, both motions were heard by the district court. Before granting Balough's motion to appear pro se, the district court queried Balough to establish on the record that Balough unequivocally intended to waive his right to counsel, and that he clearly understood he had an absolute right to be represented by counsel at all stages of the proceedings and would be required to handle the rest of his case, including sentencing, himself if the court granted his motion. ¹ The district court then granted Balough's motion to proceed pro se and heard argument on his motion to withdraw his guilty plea.

After hearing Balough's arguments and questioning his former attorney, the district court found that Balough had pleaded guilty freely and voluntarily and had received effective assistance of counsel in entering his plea. Accordingly, the district court denied Balough's motion to withdraw his guilty plea. Balough subsequently appeared pro se at his sentencing hearing, and was sentenced to concurrent fourteen-year terms in federal prison on each of the two robbery counts. Balough timely appealed, and counsel for his appeal was appointed by this court.

II. DISCUSSION

A criminal defendant has an absolute right under the sixth amendment to be represented by counsel or to represent himself, if he so chooses. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982). If a defendant chooses to represent himself, however, his decision 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, before his decision to waive counsel will be knowing and intelligent. United States v. Rylander, 714 F.2d 996, 1005 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984); Harris, 683 F.2d at 324.

In order to waive the right to counsel knowingly and intelligently, a criminal defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " United States v. Bird, 621 F.2d 989, 991 (9th Cir.1980) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525, 2541); United States v. Aponte, 591 F.2d 1247, 1249 (9th Cir.1978). Accordingly, we have held that "[a] waiver of counsel cannot be knowing and intelligent unless the accused appreciates the possible consequences of mishandling these core functions and the lawyer's superior ability to perform them." United States v. Kimmel, 672 F.2d 720, 721 (9th Cir.1982); see United States v. Gillings, 568 F.2d 1307, 1308-09 (9th Cir.) (district court "must assure itself that the defendant understands the charges and the manner in which an attorney can be of assistance."), cert. denied, 436 U.S. 919, 98 S.Ct. 2267, 56 L.Ed.2d 760 (1978). Throughout this inquiry, we must focus on what the defendant understood rather than on what the court said or understood. Harris, 683 F.2d at 325; Kimmel, 672 F.2d at 722.

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. Rylander, 714 F.2d at 1005; Harris, 683 F.2d at 324; Kimmel, 672 F.2d at 722; Bird, 621 F.2d at 991; Aponte, 591 F.2d at 1250. In Harris, 683 F.2d at 324, we emphasized that

a district court should not grant a defendant's request to waive representation of counsel and serve as his own counsel, without discussing with the defendant, in open court, whether the waiver was knowingly and intelligently made, with an understanding of the charges, the possible penalties, and the dangers of self-representation. This is clearly the preferable procedure and should be followed by district courts in every case.

Nonetheless, we have also held that a limited exception may exist whereby a district court's failure to discuss each of the elements in open court will not necessitate automatic reversal when the record as a whole reveals a knowing and intelligent waiver. Harris, 683 F.2d at 324; Kimmel, 672 F.2d at 722; Bird, 621 F.2d at 991; Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir.1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); see also United States v. Gillings, 568 F.2d at 1309 (waiver of counsel effective because of defendant's extensive discussion with district court and consultation with attorney). Absent a district court's discussion of the three elements, we will look to "the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused" to determine whether the waiver was knowing and intelligent despite the absence of a specific inquiry on the record. Kimmel, 672 F.2d at 722 (quoting Cooley, 501 F.2d at 1252).

Our cases have consistently held, however, that this "limited exception [is] to be applied in rare cases." Harris, 683 F.2d at 324; see also Rylander, 714 F.2d at 1005 ("It is an unusual case where, absent such a colloquy, a knowing and intelligent waiver of counsel will be found."); Aponte, 591 F.2d at 1250 ("It will be only the rare case ... in which an adequate waiver will be found on the record in the absence of a specific inquiry by the trial judge."). Accordingly, we have rarely found a knowing and intelligent waiver absent specific inquiry into the elements by the district court unless the case involved "an unusual fact situation in which the background and experience of the defendant in legal matters was apparent from the record." Harris, 683 F.2d at 324.

In the case at bar, the district court did not specifically discuss the three elements with Balough at the hearing on his motion to appear pro se. Therefore, we must inquire into the record as a whole to determine whether Balough nonetheless sufficiently understood the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation, to waive his right to counsel knowingly and intelligently.

The record indicates that, before taking Balough's guilty plea on July 17, 1984, the district court carefully discussed with Balough the nature of the two counts of bank robbery against him and the maximum possible penalties under 18 U.S.C. Sec. 2113(a)(d) (1982). At no point in the record, however, does it appear that the district court apprised Balough that self-representation presented any dangers or disadvantages. At Balough's hearing to waive counsel, the district court only advised Balough that he had a right to counsel and would be required to handle the rest of his case himself if allowed to proceed without counsel; at his sentencing hearing, Balough was merely asked whether he wished to continue without counsel. At each crucial stage, Balough was allowed to proceed on his own without being warned that he would be at a disadvantage doing so or advised how trained counsel could assist him.

Nothing in the record indicates that Balough has any legal training, specialized education, ² or unusual background which might make it apparent that he possessed a sufficient understanding of the disadvantages of self-representation. The government, however, argues that because Balough was assisted by counsel up until the hearing on his motion to waive counsel, and had numerous previous felony convictions, he had ample opportunity to observe the advantages of representation and acquired extensive experience with the legal process. In Kimmel, we held that a well-educated defendant, who was assisted by advisory counsel throughout his case, who had been prosecuted several times before and had even represented himself in at least one case, could not be deemed to understand sufficiently the dangers and disadvantages of self-representation absent additional facts such as indicating that he had been informed about the risks of self-representation at some point previously. Kimmel, 672 F.2d at 722.

In this case, Balough was not assisted by advisory counsel ³ during his pro se appearances, and the record does not indicate that he has represented himself before or has ever been apprised of the dangers and disadvantages of self-representation. As we noted in Kimmel, the mere fact that a criminal defen...