U.S. v. Flewitt, 86-5018

• Citation: 874 F.2d 669
• Decision Date: 10 May 1989
• Docket Number: No. 86-5018,86-5018
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. C. Scott FLEWITT, and B. Todd Flewitt, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 669

874 F.2d 669

UNITED STATES of America, Plaintiff-Appellee, v. C. Scott FLEWITT, and B. Todd Flewitt, Defendants-Appellants.

No. 86-5018.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 6, 1988.

Decided May 10, 1989.

Alan M. Caplan, Bushnell, Caplan & Fielding, San Francisco, Cal., for defendants-appellants.

Anita S. Dymant, Asst. U.S. Atty., Major Frauds Unit, Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

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

Before HUG, BRUNETTI and KOZINSKI, Circuit Judges.

HUG, Circuit Judge:

Scott Flewitt and his sons, Todd Flewitt and Michael Flewitt, were indicted for 12 counts of mail fraud in violation of 18 U.S.C. Sec. 1341. Scott Flewitt was convicted of 11 counts, Todd Flewitt of 7 counts, and Michael Flewitt was acquitted. The principal issue in this appeal is whether the constitutional rights of Scott and Todd Flewitt to self-representation were denied. We hold that they were and therefore reverse and remand for a new trial.

The appellants were doing business under the name of Concept Marketing International ("CMI"). This was a multilevel marketing company designed to sell a variety of household products. A prospective investor paid a membership fee. There were two ways that the investor could profit from involvement in CMI. He could receive commissions from the sales of products; he could also receive bonus payments from other investors he brought into the company and additional bonuses from investors brought in by those he had recruited.

At the initial arraignment, appellants were both represented by the same retained counsel. Thereafter, the retained counsel was relieved and separate counsel were appointed for each defendant. A superseding indictment, which made minor changes, was filed. A trial date was set for April 23, 1985. At a pretrial status conference on April 15, 1985, the appellants moved for appointment of new counsel because of a conflict. The appellants contended this was a complex case requiring counsel to review many documents in a warehouse in Pasadena, California. They contended there was no way their counsel could be ready for trial in a week. Counsel confirmed the conflict over the examination of these business records. In the alternative, the appellants moved to represent themselves. The court denied the request for discharge of counsel and self-representation because the appellants would not be ready for trial.

The appellants renewed their request on April 23, stressing the importance to the defense of the documents in Pasadena, and stating,

[T]he most important part of our case is in the documentation. The jury must see the proof of our words, in other words. That proof is in large quantity and lies in a warehouse belonging to the postal department in Pasadena. Because defense counsel has not obtained a court order to make this documentation available to both counsel and defendants at the same time, we can't show the steps taken in the course of our business to illustrate for the jury that it was without criminality.

The district court granted the appellants' request to represent themselves and continued the trial for three months to allow them time to prepare for trial. Advisory counsel and an investigator were appointed to assist in trial preparation. There then ensued a series of requests by appellants, who were in custody, to be transported to the warehouse in Pasadena to go through the records. Appellants contended that the investigator and advisory attorney would not be able to make sense out of the records without the appellants sorting and organizing them because they were in disarray after the Government had seized them. These motions were denied. The Government applied ex parte for an order to transport appellants to the courthouse lockup to review certain original discovery materials in the possession of the Government. The appellants were transported pursuant to the order that was issued, but they refused to look at the discovery made available by the Government. The appellants renewed the motion to be transported to the Pasadena warehouse and sought a continuance because they had not been granted access to the records. The trial was continued to October 8. The appellants also requested disqualification of the judge, which request was denied after a hearing before a different district judge.

At a status conference on September 30, 1985, one week before the scheduled trial date, the appellants persisted with their request to be taken to review the documents. The judge pointed out the difficulty and the number of hours of the marshals's time that would be required. Scott Flewitt replied: "Your honor, we are not asking for hundreds of hours, really. We are asking to be taken to the records, to categorize them at least so someone can find what we are requesting." The judge requested an offer of proof of what documents they needed. They stated they needed financial records, business records, and customer files. The judge then terminated the appellants' pro se status stating:

For reasons known best to yourselves, you are not ready for trial and you will not get ready to trial nor will you do the necessary preparation in order to be ready for trial....

But the trial is going to go forward. I am going to find that you are incapable of effectively representing yourselves. You are bright individuals. I don't know if it is the complexity of the case or whether you are, as I suspect, maybe attempting to make a record that will bring about a successful appeal.

But I am going to rule that you are not capable of further self-representation. I am going to terminate your representation of yourselves, and I am going to re-appoint standby counsel. That order is effective forthwith.

The appointed counsel for each of the appellants proceeded to take over the trial responsibilities. The trial began on October 8, 1985. The appellants were convicted after a jury trial and each sentenced to 15 years of incarceration, and a consecutive 5-year term of probation.

The dissent argues that the defendants did not make an unequivocal demand to proceed pro se. The Government does not advance this argument on appeal and, thus, may have waived that argument. In any event, it is our view that the Government did not raise this issue on appeal because it lacks merit. The court conducted an extensive hearing on September 9, 1985, the express purpose of which was to determine whether the defendants wished to accept the assistance of the counsel the court had appointed for them or to proceed pro se. The district judge had appointed counsel that he had found to be competent and informed the defendants that he did not intend to substitute new counsel. The Flewitts contended that these attorneys were ineffective because they had not done things the Flewitts thought should have been done. The court had found, however, that the counsel were proceeding competently and effectively and that any difficulty was due to the Flewitts' lack of cooperation.

The court asked numerous direct questions making it very clear that the defendants had to make a specific choice. For example, the court stated:

You have a right to counsel and you have a right to represent yourself. Which of those two alternatives do you choose now?

(T.R. 150.) The response of the two Flewitts was that they wished to represent themselves, as the choice was put to them, but that they still contended that the failure to appoint new counsel for them was a denial of effective assistance of counsel. As between the choice of accepting the continued services of the counsel that had been appointed for them or representing themselves, they chose the latter. The assistant U.S. attorney expressed some concern. The court then stated:

I don't agree with you [the assistant U.S. attorney] that it is not a valid waiver if they have only waived because they don't like their other attorney. I think it is a valid waiver if they know what they are doing.

If they understand they have the right to counsel [and] they reject the offer of counsel by the court. They are mentally able to represent themselves. They choose to represent themselves. I don't think the motive is that important.

(T.R. 152-53.) We agree with this conclusion of the district court. The district court then made a specific finding:

As of right now I think you are capable of representing yourselves, I believe and I find that you have made an effective waiver of your 6th amendment right to counsel, and there is no reason at the present time why you should not represent yourself.

(T.R. 155.)

The dissent cites to earlier portions of the transcript of the hearing (T.R. 133, 149-154), in which the Flewitts were expressing that the denial of the counsel of their choice was the reason they were choosing to proceed pro se. However, after all the discussion, the finding of the court was as expressed above, that they had made an effective election to proceed pro se. There is no indication in the record that the district court at any time made a contrary finding. The district judge did not terminate the pro se status because the election to so proceed was equivocal (nor does the Government even advance that argument on appeal). Rather, the court found that they had made an effective election to proceed pro se, but terminated it at the status conference on September 30, 1985, for the reason that they were not prepared to go to trial and were not capable of representing themselves. This is clearly expressed in the quotation from the transcript (T.R. 198) on page 4, of this opinion. We are therefore concerned in this appeal with the reason for the termination of the right of self-representation that was unequivocally elected. This was based not on any equivocation in election but on the conduct of the defendants thereafter in failing to make adequate preparation for trial.

The...