U.S. v. Cash

• Decision Date: 16 March 1995
• Docket Number: No. 93-7100,93-7100
• Citation: 47 F.3d 1083
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Don Edward CASH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1083

47 F.3d 1083

UNITED STATES of America, Plaintiff-Appellee, v. Don Edward CASH, Defendant-Appellant.

No. 93-7100.

United States Court of Appeals, Eleventh Circuit.

March 16, 1995.

J. Stephen Salter, Birmingham, AL, for appellant.

Robert O. Posey, Asst. U.S. Atty., Birmingham, AL, for appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before HATCHETT and COX, Circuit Judges, and JOHNSON, Senior Circuit Judge.

JOHNSON, Senior Circuit Judge:

In this appeal from the Northern District of Alabama, Donald Edward Cash ("Appellant") seeks reversal of his conviction and a new trial.

I. STATEMENT OF THE CASE

A. Factual Background

This case arises out of the eviction of Appellant's uncle, Dave Jackson, from a house which the government sought to clear in connection with the Village Creek Flood Control Project. Because negotiations with Jackson and Appellant over the purchase price for the house were fruitless, the Corps of Engineers filed suit for condemnation. The parties settled the case, and Jackson agreed to surrender the property to the government within ninety days. The settlement agreement also provided that if Jackson bought a comparable replacement house for more than the cost of his old house, he would be eligible for a relocation payment of the difference. Although Jackson bought a replacement house for less than the government paid him for his old house, he refused to vacate the old house, demanding a replacement payment.

From November 1992 to January 1993, Appellant made several statements, public and private, in which he threatened to kill the deputy U.S. marshals if they tried to remove him from his uncle's house. An arrest warrant for obstruction of justice was issued against Appellant in January 1993. When the marshals arrived at the house, they offered Appellant a replacement payment in settlement of the dispute, but he rejected it. A deputy U.S. marshal then sprayed Appellant in the face with a chemical agent similar to "Mace." Appellant pulled a cocked and loaded 45-caliber semiautomatic pistol from his waistband. A struggle ensued, during which Appellant fired three shots. He was arrested. Appellant and Jackson were removed from the property, and the house was demolished.

B. Procedural History

In January 1993, an indictment charged Appellant with two counts of attempted murder of deputy U.S. marshals, in violation of 18 U.S.C.A. Sec. 1114 (West Supp.1994), two counts of forcibly resisting deputy U.S. marshals, in violation of 18 U.S.C.A. Sec. 111 (West Supp.1994), one count of use of a firearm to commit crimes of violence, in violation of 18 U.S.C.A. Sec. 924(c) (West Supp.1994), and three counts of obstruction of justice, in violation of 18 U.S.C.A. Sec. 1503 (West 1984). At his arraignment in February 1993, in the presence of his appointed counsel, Appellant indicated orally that he wished to represent himself.

Later in February 1993, the magistrate judge ordered an examination of Appellant by psychologists at the Taylor-Hardin Secure Medical Facility. In March 1993, the psychologists reported that Appellant was not competent to stand trial and recommended additional evaluation and treatment of Appellant in an in-patient setting. On the basis of this report, the magistrate judge found that Appellant was not competent to waive counsel and denied his oral motion to represent himself. The district court held a competency hearing and found, based primarily on the Taylor-Hardin report, that Appellant was not competent to stand trial. The court committed Appellant to the custody of the Attorney General for evaluation and treatment pursuant to 18 U.S.C.A. Sec. 4241(d) (West 1985).

In May 1993, Appellant's appointed counsel moved to withdraw. The motion was granted in August 1993, and appointed counsel was replaced by retained counsel.

Also in August 1993, an evaluation of Appellant prepared by the staff at the Mental Health Division of the Federal Correctional Institution in Butner, North Carolina ("FCI Butner"), was filed with the district court. Based on evaluation of Appellant over a period of approximately two months, the report from the staff at FCI Butner concluded that Appellant was competent to stand trial. The district court held a competency hearing, found that Appellant was competent to stand trial, and set trial for September 13, 1993.

On August 31, 1993, Appellant's retained counsel filed a motion to continue the trial, which motion was denied on September 1, 1993. On September 13, 1993, the date of trial, Appellant again moved for a continuance and again requested to represent himself. After addressing Appellant personally regarding his right to represent himself, the court granted Appellant's request to proceed pro se. Specifically, after the court was informed that Appellant had requested the withdrawal of his retained counsel, the court held the following colloquy with Appellant:

THE COURT: Mr. Cash, is that correct?

THE DEFENDANT: Yes, sir. Now that I've been found competent to stand trial--and that was the reason that you sent me down to Butner, so that I could--so they could evaluate me to see if I could represent myself--now that I am, and my lawyers and I cannot agree upon the strategy by which to defend me, I'd like to be given the right to represent myself.

THE COURT: Well, let me correct one thing that you said. We didn't send you to Butner to find out if you were competent to represent yourself, we sent you to Butner to find out if you were competent to stand trial at all.

THE DEFENDANT: Yes, sir.

THE COURT: The situation that you have here, you have a right under the Sixth Amendment to counsel of your choice, including yourself.

THE DEFENDANT: Yes, sir.

THE COURT: And no one can force an attorney on you.

THE DEFENDANT: Yes, sir.

THE COURT: But most individuals who attempt to represent themselves--

THE DEFENDANT: Yes, sir.

THE COURT: --don't do a very good job of it, because most laymen are not competent to represent themselves.

THE DEFENDANT: Yes, sir.

THE COURT: And ordinarily, it's a very foolish thing for a defendant in a criminal matter to attempt to represent himself. We have seen situations where the defendant is himself a lawyer who chooses to represent himself, and it didn't turn out very well for him.

That is a choice that you have. I can only permit you to exercise that choice if you, first of all, recognize your right to have counsel, to have constitutionally effective counsel; that you recognize the dangers; the seriousness of the choice to represent yourself; that you make that choice to represent yourself voluntarily, that is, without any coercion or pressure--or undue pressure, at least.

Now, first of all, you tell me you want to represent yourself. Tell me why you want to represent yourself, sir.

THE DEFENDANT: Based on the strategy that my lawyers and I have discussed, I don't feel that the strategy that they want to use would be beneficial to me in this particular case. And I feel that there are a lot of things that will be left unsaid if they go--they use their strategy, and the whole truth of the entire matter will be covered up.

THE COURT: Well, let me tell you in that regard, I suspect I know what you're talking about.

THE DEFENDANT: I believe you do, sir.

THE COURT: I'm not going to ask you what your strategies are, you don't have to tell me--at least at this stage. But the lawsuit--it's a criminal matter, but it's a lawsuit--is about a particular incident that happened on a particular occasion, involving particular people. It may have been the result of, or part of a series of events involving the lawsuit which Judge Lynne handled which involved the condemnation or whatever the proceeding was, in which Mr. Jackson's home was purchased from him against his will.

You--and Mr. Jackson, too--apparently felt very strongly about that. But the legality of that proceeding, whether it's right, wrong, or indifferent; whether Judge Lynne was correct; whether you were treated fairly or Mr. Jackson was treated fairly, those are not matters which aren't [sic] going to be heard in this lawsuit.

What we are going to hear in this lawsuit is whether you committed the acts which are charged against you in the indictment. And that's all we're going to hear.

* * * * * *

THE COURT: ... Now, whether you defend yourself or whether these gentlemen defend you, we're going to try the lawsuit which is charged in the indictment. We are not going to try what Judge Lynne did. We are not going to get into that any more than is necessary to placing into context what is happening here, and that's going to be very brief.

. . . . .

[The court then denied Appellant's motion for a continuance]

* * * * * *

THE COURT: ... What is it you want to do, Mr. Cash? Having heard those things and me having told you how the situation is going to be at trial, do you still want to try to represent yourself?

THE DEFENDANT: I would pray that you please give me the right to represent myself, sir.

THE COURT: I don't have to give you that right, you have that right. It's the Constitution of the United States that gives you that right.

Appellant represented himself at trial and was convicted as to all counts except one count of obstruction of justice. He was sentenced to 211 months' imprisonment. The issue before us is whether the district court erred by granting Appellant's request to represent himself. ¹

II. DISCUSSION

A defendant in a criminal trial has a constitutional right to proceed without counsel when he knowingly, voluntarily, and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 833-836, 95 S.Ct. 2525, 2540-2542, 45 L.Ed.2d 562 (1975). Whether a waiver of counsel is knowing and intelligent is a mixed question of law and fact which we review de novo. Greene v. United States, 880 F.2d 1299, 1303 (11th Cir.1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990). On...