U.S. v. Bova

• Decision Date: 25 November 2003
• Docket Number: No. 02-2311.,No. 02-2276.,02-2276.,02-2311.
• Citation: 350 F.3d 224
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Anthony BOVA, Defendant, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — First Circuit

350 F.3d 224

UNITED STATES of America, Appellee/Cross-Appellant, v. Anthony BOVA, Defendant, Appellant/Cross-Appellee.

No. 02-2276.

No. 02-2311.

United States Court of Appeals, First Circuit.

Heard October 7, 2003.

Decided November 25, 2003.

Syrie D. Fried, Federal Defender Office, for defendant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for the United States.

Before BOUDIN, Chief Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOUDIN, Chief Judge.

Anthony Bova, convicted in the district court for lying in the course of court testimony in an earlier matter, now appeals. He claims that his perjury grew out of a violation of his right to counsel; the government cross appeals on a sentencing issue. We describe briefly the background events and prior proceedings, reserving further detail for discussion of the two quite different claims on appeal.

Well before the events that gave rise to this case, Bova was convicted in February 1993 in federal court in Nevada for a conspiracy involving the possession of stolen credit cards, served a term in prison, and was on supervised release in Massachusetts in early 1995. On September 1, 1995, he was arrested for an asserted supervised release violation (an alleged stabbing). While in custody on that charge, he was accused of beating a fellow prisoner, Paul Hurley, on November 6, 1995.

A district judge found the initial stabbing charge not proven and Bova was set free on February 9, 1996, still on supervised release. Three days later, on February 12, 1996, Bova allegedly used a knife to assault one Walter Tauro in Somerville, Massachusetts. Bova was then re-arrested for violating supervised release conditions and brought before a magistrate judge on March 15, 1996, for a hearing on bail. Bova initially sought to represent himself but was persuaded to accept appointed counsel and the hearing was adjourned.

The following Monday, March 18, 1996, the hearing resumed. Although Bova faced charges that could end his supervised release, the sole question at the resumed hearing was whether Bova should be released on bail or detained (as the government sought) pending resolution of the new charges. Bova now sought to represent himself with his new attorney acting as standby counsel; the magistrate judge said that he would not approve this option and that Bova must have counsel or simply represent himself. Saying that he was better prepared than his counsel, Bova insisted upon representing himself.

In the hearing, Bova cross-examined the government's witness, Probation Officer John Perry, and then testified on his own behalf, denying that he had assaulted either Hurley or Tauro. The magistrate judge ended by finding probable cause to believe that Bova had committed both assaults and detained him as a danger to the community. Later, the district court found Bova responsible for both assaults, as well as a third assault on a guard committed on February 15, 1996, and sentenced him for violating his supervised release conditions.¹

On March 15, 2001, a federal grand jury indicted Bova for two counts of perjury, 18 U.S.C. § 1623 (2000), and one of obstruction of justice, 18 U.S.C. § 1503 (2000), based on his testimony at the March 18, 1996, bail hearing. The perjury counts were based on his denials under oath that he had assaulted Hurley and Tauro; the obstruction charge related to the threatened effect of these lies on the proceeding. After the district court declined to suppress the perjurious statements, United States v. Bova, 170 F.Supp.2d 96 (D.Mass. 2001), Bova entered a conditional plea of guilty to all counts, reserving the right to appeal on the suppression issue. He was thereafter sentenced to 30 months imprisonment. This appeal by Bova followed; the government cross appealed as to the sentence.

We begin with the suppression issue. Bova claims that he was denied his right to counsel under the Sixth Amendment by the magistrate judge; that this caused his false statements in the bail hearing; and that the proper remedy is the suppression of those false statements, thus effectively barring the case against him. It is highly unlikely that Bova has a valid Sixth Amendment claim, but it is even plainer that any supposed violation in the context of this case would not warrant suppression.

Although Bova declines to elaborate on his theory of a Sixth Amendment violation, we think it well to lay to rest any suggestion that Bova had a right to represent himself and to enjoy the benefit of standby appointed counsel. See McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). True, courts often appoint standby counsel for a defendant who insists on self-representation — partly in the hope that proceedings will flow more smoothly — but no case suggesting that the defendant has a constitutional right to represent himself and enjoy appointed counsel has been called to our attention.

One circuit has clearly stated that no right to standby counsel exists. McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.1985), cert. denied, 474 U.S. 852, 106 S.Ct. 152, 88 L.Ed.2d 125 (1985). Language from an earlier decision in this circuit points in the same direction. See United States v. Betancourt-Arretuche, 933 F.2d 89, 95 (1st Cir.1991), cert. denied, 502 U.S. 959, 112 S.Ct. 421, 116 L.Ed.2d 441 (1991). "Although appellate courts have suggested that appointment of standby counsel is to be preferred, it is not constitutionally required." 3 Lafave, Criminal Procedure, § 11.5(f), at 589 (2d ed.1999).

Bova's better argument, and seemingly the one he has in mind, is a fact-specific claim that Bova was forced to represent himself because the magistrate judge supposedly confronted Bova with an unfair choice between self-representation and the assistance of a counsel who had not been given adequate time to prepare. In lengthy dialogue we have omitted (because we do not plan to decide this "unfair choice" question), Bova and his initially-appointed counsel said at the March 18, 1996, hearing that they had spoken together only for an hour before the court session because counsel had not been able to meet with Bova over the intervening weekend.

Why the magistrate judge did not volunteer that Bova and his counsel could have more time to confer is a mystery; but neither Bova nor his new counsel asked for additional time and the magistrate judge certainly did not foreclose a request. This is why we are skeptical that there is any Sixth Amendment claim, although it is clear in retrospect (the vantage from which most things are clear) that a postponement of the hearing to allow more time would have been a good practical resolution.

Still, we will assume arguendo that the magistrate judge did make some arguable mistake of constitutional dimension that could be developed on a fuller record (say, by leading Bova to believe that he had to represent himself or be content with inadequately prepared counsel). Even so, on the present facts that would not come close to licensing Bova to take the stand and falsely deny under oath that he had committed two assaults.

The government says that even if there was a Sixth Amendment violation (which it denies), that violation may have "caused" Bova to represent himself but it did not "cause" him to take the stand and tell clear-cut lies about his prior assaults. Causation rhetoric is of some use in focusing upon the different choices with which Bova was faced (whether to represent himself versus whether to lie). But it does not entirely resolve the legal controversy in favor of the government, as it might if the supposed constitutional violation followed the perjury rather than preceded it.

"Causation" is one of the terms used in the law that is notorious for multiple meanings. Yes, a supposed denial of appointed counsel would not force Bova to lie; but it could certainly be a "but for" cause of his perjury if we suppose — not without some basis — that a competent lawyer who represented Bova in the hearing would almost certainly have persuaded Bova not to take the stand and compound his problems by denying the assaults. In this sense a wrongful denial of counsel to an interrogated suspect is said to have "caused" the confession that followed. Cf. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

The issue here is not one of "but for" causation but (as with proximate cause) a policy choice as to the legal consequences that judges want to impose upon a fault or flaw. The main policy in this case is that courts very much do not want people to tell deliberate lies on the witness stand and, in general, take the view that defects in the steps that may bring witnesses to the stand are not adequate reason for tolerating the lies and foregoing punishment. A number of Supreme Court decisions reflect this general policy.

Thus, in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), convictions for filing false non-Communist affidavits were sustained, the Court holding that it did not matter whether the underlying statute that required them violated the First Amendment. Id. at 867, 86 S.Ct. 1840; see also Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969). Similarly, in United States v. Mandujano, 425 U.S. 564, 576, 584, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), and United States v. Wong, 431 U.S. 174, 176-78, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977), the respective failures to give a grand jury witness a Miranda warning (in one case) or a warning as to the privilege against self-incrimination (in the other) were held not to excuse the subsequent perjury of the witness. Other cases are to the same effect.²

Admittedly, evidence secured by the police in violation of constitutional rights is often suppressed; the classic cases are Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)...