U.S. v. Garrett
| Decision Date | 16 July 1998 |
| Docket Number | No. 96-50609,96-50609 |
| Citation | 149 F.3d 1018 |
| Parties | 98 Cal. Daily Op. Serv. 5576, 98 Daily Journal D.A.R. 7783 UNITED STATES of America, Plaintiff-Appellee, v. Floyd Lentellis GARRETT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Janice D. Hogan, San Diego, California, for defendant-appellant.
Mary A. Schneider, Assistant United States Attorney, San Diego, California, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR 95-1149-MLH.
Before: REINHARDT and TASHIMA, Circuit Judges, and SHADUR, District Judge. *
Defendant Floyd Lentellis Garrett appeals his conviction for armed bank robbery, using and carrying a firearm during the commission of a crime of violence, and aiding and abetting the commission of these crimes, in violation of 18 U.S.C. §§ 2113(a) and (d), 924(c)(1), and (2). He contends that initially he did not waive his right to counsel knowingly and intelligently, and that subsequently the district court abused its discretion in denying his motion for a one-month continuance so that he could be represented by counsel. We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291. We vacate Garrett's conviction and remand for further proceedings.
On July 21, 1995, Floyd Lentellis Garrett and his co-defendant, Barry I. Hendricks, were charged in a two-count indictment with the crimes set forth above. Hendricks entered into a plea agreement. Garrett was present at Hendricks's plea hearing and was represented by counsel, Bill Brown.
At that time Brown advised the court of a serious breakdown in communication between Garrett and himself. During the subsequent months, the relationship between Brown and his client continued to worsen, and, on February 20, 1996, Garrett moved to relieve Brown as his counsel, noting communication problems and disagreements over strategy. Two days later, the court appointed attorney Thomas Senters to help Garrett determine if he wanted to proceed pro se. The day after that, the court appointed Senters attorney of record.
Garrett experienced difficulties with Senters as well, and, on April 15, 1996, filed a motion to waive his right to counsel and to proceed pro se. The court conducted two separate hearings, on April 15th and 22nd, to determine whether Garrett understood the ramifications of self-representation. At both hearings, the court conducted a lengthy colloquy with him regarding the nature of the charges, the penalties he faced, and the disadvantages of self-representation. At the April 22 hearing, the court granted the motion.
On June 7, on its own motion and over Garrett's objection, the court appointed Senters as stand-by counsel. At this hearing, which was held eleven days before the scheduled trial date, Garrett notified the court of his intention to retain private counsel:
The court did not preclude Garrett from retaining new counsel but warned that it was concerned about delays.
On Monday, June 17, the day before trial was scheduled to convene, Garrett notified the court that he had retained new counsel but that his attorney could not begin trial until July 16. Garrett moved for a one-month continuance in order to permit his attorney to fulfill prior commitments and to prepare adequately. The court telephoned Attorney Arthur Ramsey who confirmed that Garrett's father had contacted him the preceding Thursday or Friday about representing Garrett, that he had been retained, and that he could begin trial on July 16.
The court denied Garrett's request for a continuance, stating that the trial would commence the following day. It did--after a brief additional discussion regarding the court's denial of the request. At trial, Garrett contested only Count II, the charge of possessing a weapon in the commission of the crime. The court found him guilty of both counts and imposed a mid-range sentence of 180 months on Count 1, and a consecutive five-year sentence as required by law under 18 U.S.C. § 924(c) on Count 2. Garrett appealed.
We first consider whether Garrett initially waived his right to counsel knowingly and intelligently and whether the district court conducted an adequate inquiry on this issue. Second, we review the district court's subsequent decision to deny Garrett's motion for a continuance so that he could be represented by newly retained counsel.
A criminal defendant has the constitutional 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, 45 L.Ed.2d 562 (1975). If the defendant elects to waive his right to counsel, his decision must be made knowingly and intelligently. United States v. Arlt, 41 F.3d 516, 519 (9th Cir.1994). "Because a defendant normally gives up more than he gains when he elects self-representation, the district court is required to make reasonably certain that he in fact wishes to represent himself." United States v. Robinson, 913 F.2d 712, 714 (9th Cir.1990). Consequently, the government bears the burden of showing that defendant's waiver was knowing and intelligent. United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir.1994).
In order to waive the right to counsel knowingly and intelligently, the defendant must be made aware of three elements: the nature of the charges, the possible penalties, and the disadvantages of self-representation. United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987). To ensure that the defendant is aware of these elements, the trial judge must conduct an open court colloquy. Id. at 1488. Whether a waiver of the right to counsel was made knowingly, intelligently, and voluntarily is a mixed question of law and fact which we review de novo. Robinson, 913 F.2d at 714. Throughout our inquiry, we must focus "on what the defendant understood, rather than on what the court said or understood." United States v. Harris, 683 F.2d 322, 325 (9th Cir.1982).
Garrett argues that the trial court failed properly to inform him of the charge of aiding and abetting. We disagree. The record reflects that the district judge read the actual indictment on aiding and abetting, and explained in detail the meaning of the charges in lay terms. The judge asked Garrett if he understood what she had told him. He answered "yes" each time. The colloquy sufficiently informed him of the nature of the charges.
The record also shows that the district judge properly informed Garrett of the possible penalties he faced. For each of the two counts the court explained the maximum penalty, the monetary fines, and the type of probation he could receive. Furthermore, the court explained that he could face enhancements under the sentencing guidelines due to his prior convictions and that he might be classified as a career offender. The court asked him whether he understood this and he replied, "yes."
Finally, Garrett argues that the district court failed to adequately inform him of the disadvantages of self-representation. The record does not support this contention. To the contrary, on numerous occasions the court explicitly warned Garrett of the disadvantages of self-representation and advised him that he should allow Senters to serve as counsel. The court explained that he would be on his own, and offered a detailed explanation of all the "core functions" he would have to perform as an attorney and how his role might be limited. At the conclusion of the April 15 hearing, the court continued the motion for a week giving Garrett time to consider his waiver decision fully. At the following hearing on April 22nd, the district judge made an express finding for the record that Garrett knowingly and voluntarily waived his right to counsel.
The district court conscientiously explained each of the critical elements to Garrett, emphatically discouraged him from waiving his right to counsel, and gave him extra time to consider his decision. We conclude that it conducted a careful and proper inquiry regarding Garrett's capacity to represent himself, and that Garrett knowingly and voluntarily waived his right to counsel.
Garrett's second claim is that the district court abused its discretion by refusing to grant him a one-month continuance so that his newly retained counsel could fulfill prior commitments and prepare adequately for trial, principally the latter. We have previously held that a defendant has a constitutional right to hire counsel of his choice which may only be abridged to serve a "compelling purpose." United States v. D'Amore, 56 F.3d 1202 (9th Cir.1995) (quoting United States v. Lillie, 989 F.2d 1054 (9th Cir.1993)). Furthermore, when a defendant is erroneously denied a continuance for the purpose of retaining counsel of his choice, prejudice is presumed. Here, Garrett is not required to make a showing of prejudice, D'Amore, 56 F.3d at 1204, 1206; rather, he is entitled to a reversal absent a compelling purpose that warrants denial of the continuance. 1
In D'Amore, we concluded that the district court failed to demonstrate a compelling purpose when it denied the defendant's request, made on the day before the scheduled hearing, to substitute retained counsel of his own choosing for court-appointed counsel, even though the...
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US v. Garrett
...the district court committed reversible error. A divided panel of this court reversed Garrett's convictions. See United States v. Garrett, 149 F.3d 1018 (9th Cir.1998). We granted rehearing en banc and withdrew the panel opinion. See United States v. Garrett, 161 F.3d 583 (9th We write toda......