U.S. v. Betancourt-Arretuche

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before CAMPBELL and SELYA, Circuit Judges, and BOWNES; BOWNES
• Citation: U.S. v. Betancourt-Arretuche, 933 F.2d 89 (1st Cir. 1991)
• Decision Date: 03 April 1991
• Docket Number: No. 90-1853,BETANCOURT-ARRETUCH,D,90-1853
• Parties: UNITED STATES, Appellee, v. Eugenioefendant, Appellant. . Heard

Page 89

933 F.2d 89

UNITED STATES, Appellee, v. Eugenio BETANCOURT-ARRETUCHE, Defendant, Appellant.

No. 90-1853.

United States Court of Appeals First Circuit.

Heard April 3, 1991.

Decided May 17, 1991.

Miguel A.A. Nogueras, Asst. Federal Public Defender, with whom Gerardo Ortiz Del Rivero, Federal Public Defender, was on brief for defendant, appellant.

Jose A. Quiles, Asst. U.S. Atty., with whom Edwin O. Vazquez, Asst. U.S. Atty., and Daniel F. Lopez-Romo, U.S. Atty., were on brief for appellee.

Before CAMPBELL and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.

This appeal arises from a verdict of guilty on a single count of unlawful possession with intent to distribute more than 700 pounds of cocaine ¹ found on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C.App. Sec. 1903(a), (c)(1)(C) and (f) (1988). ² Defendant-appellant Eugenio Betancourt-Arretuche was the master of the vessel. There are two issues: 1) whether the district court erred in denying Betancourt the right to represent himself at trial; and 2) whether the district court erred in denying Betancourt's Rule 29 motion for acquittal.

I. BACKGROUND

It was a dark and stormy night. Just before midnight on November 23, 1989, the United States Coast Guard Cutter "Bear," on routine patrol several miles south of the island of Vieques, Puerto Rico, made visual contact with a forty-foot vessel flying no flag, displaying no home port or country marking and with the name "Janeth" inscribed only on its bow. When the coast guard unsuccessfully attempted radio contact in both English and Spanish, the Janeth abruptly changed course from between 080 and 090 degrees east to 140 degrees south. The Bear followed and coast guard officers were able to effect a consensual boarding to check the Janeth's documents.

During the customary safety sweep of the Janeth, two coast guard officers discovered a mysterious space under the floorboards inside the pilot house. Betancourt, who cooperated fully with the officers, claimed through an interpreter that he thought the space held an empty ballast tank. When the floorboards were lifted and a freshly painted section of metal deck raised, ³ the coast guard officers discovered twelve duffle bags filled with 317 bricks, wrapped in yellow or black cellophane and marked with distinctive "7's." ⁴ The bricks field-tested positive as cocaine. The master of the Janeth denied any knowledge of the bags or their contents.

Betancourt did, however, reveal that the ship was of Colombian registry, out of Barranquilla, Colombia, en route to Curacao, Venezuela. When questioned about his considerable detour to the opposite end of the Caribbean, Betancourt insisted that he was responding to a radio request to aid another vessel, the "Margarita," which was in distress near Isla Aves. He also claimed American citizenship and produced identification including a Florida driver's license. Four Colombian nationals, only two of whom could produce any identification, comprised the crew of the vessel. They were not questioned. In its "Statement of no Objection to seize the Vessel," the Colombian government directed that all Colombian nationals be turned over to it. Hence, Betancourt was the only person arrested.

Betancourt was arraigned on November 30, 1989, pleaded not guilty and was held without bail until his trial began on March 1, 1990. When the jury was unable to reach a verdict on March 7, 1990, the district court declared a mistrial and scheduled a second trial. Betancourt's second trial began on May 15, 1990, before a different judge. He was represented at both trials by the same court-appointed attorney.

After the jury had been empaneled and sworn, and immediately before the opening statements in the second trial, Betancourt moved to proceed pro se. He claimed disagreements with his lawyer regarding defense strategy. No claim of ineffectiveness of counsel was made. Following a lengthy colloquy with the defendant and his counsel, detailed in Part II, the court denied Betancourt's request. Unlike the first trial, Betancourt did not testify in his own behalf at this trial. This time the jury found Betancourt guilty as charged. On August 7, 1990, he was sentenced to a term of imprisonment for 292 months. His timely appeal followed.

II. PRO SE REPRESENTATION

In the concluding section of his dissent in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the seminal Supreme Court decision on right to self-representation under the sixth amendment, Justice Blackmun posed rhetorically the same procedural problems we face today in this appeal:

Since the right to assistance of counsel and the right to self-representation are mutually exclusive, how is the waiver of each right to be measured? If a defendant has elected to exercise his right to proceed pro se, does he still have a constitutional right to assistance of standby counsel? How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial? May a violation of the right to self-representation ever be harmless error?

Id. at 852, 95 S.Ct. at 2549 (Blackmun, J., dissenting).

A. Waiver of Right to Counsel

A recent First Circuit case, Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir.), cert. denied, 484 U.S. 945, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987), traces the history in the federal courts of the waiver of the right to counsel. In Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the Supreme Court instructed that one requesting to represent himself must articulate "an intelligent and competent waiver" of his constitutional right to representation. The record must establish that the criminal defendant "knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942). Faretta v. California, in which the Court correlated the right to self-representation with the right to representation under the sixth amendment, similarly emphasizes the necessity of the accused's awareness of what he is doing when he gives up "many of the traditional benefits associated with the right to counsel." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. See also McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (stressing sixth amendment right to conduct own defense if waiver of counsel knowing and intelligent).

Tuitt establishes three basic requirements for waiver in this circuit. First, "[t]he constitutional right of self-representation necessarily entails a waiver of the constitutional right to be represented by counsel." Tuitt, 822 F.2d at 174 (citation omitted); see also Chapman v. United States, 553 F.2d 886, 892 (5th Cir.1977); Meeks v. Craven, 482 F.2d 465, 467 (9th Cir.1973). The waiver must be " 'clear and unequivocal ' "; otherwise, a " 'court should not deprive defendant of his right to counsel.' " Id. at 175 (quoting Brown v. Wainwright, 665 F.2d 607, 612 (5th Cir.1982)) (emphasis added in Tuitt ).

Second,

[t]he right to counsel is, in a sense, the paramount right; if wrongly denied, the defendant is likely to be more seriously injured than if denied his right to proceed pro se. Accordingly, we think that requiring an express waiver of the former right before recognizing the latter is a defensible procedure.

Id. at 177. See also Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (courts should honor "every reasonable presumption against waiver" of the right to counsel); United States v. Purnett, 910 F.2d 51, 55 (2d Cir.1990) ("A district court is not obliged to accept every defendant's invocation of the right to self-representation."); Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989) (requiring unequivocal request for waiver serves "institutional purpose" of preventing defendant "from taking advantage of the mutual exclusivity of the rights to counsel and self-representation").

Third, although we do not require a specific warning by the court or formulaic waiver by the accused, see, e.g., United States v. Campbell, 874 F.2d 838, 845 (1st Cir.1989); United States v. Hafen, 726 F.2d 21, 25 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984), the court must determine the nature of the waiver, as well as its clear and unequivocal election:

When a defendant refuses to waive his right to counsel, while demanding to proceed pro se, the trial court will find it hard to know which constitutional right is being asserted, and which is being waived, especially since the right to an attorney is in effect until waived, while the alternative right to self-representation is not in effect until asserted.

Tuitt, 822 F.2d at 174 (citing Wainwright, 665 F.2d at 610).

In the instant case, immediately after the preliminary charge to the jury, Betancourt's court-appointed attorney conveyed his client's request to represent himself. With the aid of an interpreter, the court queried Betancourt about his reasons for the waiver, his education and language skills, his preparation and his modus operandi as a pro se defendant. The following exchange then took place.

THE COURT: How can you participate in this case if you don't know English? The proceedings in this Court are in English.

DEFENDANT BETANCOURT: I figure that at least for speaking purposes, I have this gentleman here [motioning to the court's interpreter], and as far as I know, in the written part, he [motioning to court-appointed counsel] would continue representing me.

Trial Transcript at 20. While Betancourt's request could be characterized as knowing, it is scarcely unequivocal. He simultaneously requested self-representation while stating that his attorney "would continue representing me" in the written part.

The district court warned Betancourt of the dangers of...