U.S. v. Goad

• Decision Date: 02 February 1995
• Docket Number: No. 93-2108,93-2108
• Citation: 44 F.3d 580
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark D. GOAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 580

44 F.3d 580

UNITED STATES of America, Plaintiff-Appellee, v. Mark D. GOAD, Defendant-Appellant.

No. 93-2108.

United States Court of Appeals Seventh Circuit.

Argued Sept. 20, 1994.

Decided Jan. 9, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 2, 1995.

John W. Vaudreuil (argued), Grant C. Johnson, Asst. U.S. Attys., Madison, WI, for U.S.

Allen E. Shoenberger, Katherine C. Walsh (argued), Chicago, IL, for defendant-appellant.

Before CUMMINGS, FERGUSON, ^* and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Mark David Goad was convicted of bank fraud on December 20, 1990, and sentenced to thirty months of incarceration to be followed by three years of supervised release. On April 1, 1993 he was charged with committing several burglaries and transporting and selling stolen property, all violations of the terms of his supervised release. At a hearing on April 22, 1993, the district court determined that Goad had violated his supervised release and imposed a term of confinement of twenty-four months. Goad raises four arguments on appeal: (1) that the district court applied an incorrect standard of proof in revoking his supervised release; (2) that the district court violated his Fifth Amendment privilege against self-incrimination in finding that Goad associated with a known felon; (3) that the district court violated his Sixth Amendment right to counsel by allowing him to proceed pro se without adequate inquiry into his ability to defend himself, and, in the alternative, that his waiver of his right to counsel was neither knowing nor intelligent; and (4) that the district court erred in denying his motion to substitute appointed counsel. We affirm.

I. FACTS

On November 20, 1990, Goad pled guilty to bank fraud and conspiracy in violation of 18 U.S.C. Secs. 2 and 1344. Goad served his thirty-month prison term at Sandstone Federal Penitentiary in Minnesota. His three-year term of supervised release commenced on March 25, 1992. One year later, on March 30, 1993, Goad's probation officer, Janine Frank, filed a petition requesting the revocation of Goad's supervised release. Frank's petition alleged that the Dane County Sheriff's Office suspected that Goad had committed a number of burglaries in Madison, Wisconsin and the surrounding communities. ¹ Frank alleged that Goad violated three separate conditions of the terms of his supervised release, specifically: (1) he committed a burglary in Maple Bluff, Wisconsin; (2) he traveled outside the jurisdiction without permission of the court; and (3) he associated with a convicted felon without permission from the probation office. The petition also requested the appointment of David Stokes, who had represented Goad in his 1990 bank fraud trial, as Goad's attorney.

The defendant was arrested on March 31, 1993, and charged with violating the terms of his supervised release. At the time of arrest he was wearing a black coat stained with insulating foam, and had in his possession a can of spray-foam insulation, ² false identification cards and a jeweler's eye.

The district court held a probable cause bail hearing on April 1, 1993. At the beginning of the hearing, Stokes advised the court that he discussed the revocation petition and the attached Sheriff's Report with Goad prior to the hearing:

THE COURT: Okay. Mr. Stokes, have you had an opportunity, however brief, to discuss the nature of the petition for revocation with your client?

MR. STOKES: Briefly, yes, Your Honor.

Officer Frank testified concerning the items seized from Goad at the time of his arrest. Frank also informed the court that she had interviewed Goad's mother who stated that Thomas King (a convicted felon on supervised release) had stayed at her house with Goad "for three nights in her basement with Mark's knowledge." The defendant was present throughout this hearing, and argued to the court at the end of it that he should be released on bail. The defendant acknowledged that in response to a call from Officer Frank, he stated:

I knew from between the words that were being said that I was, in fact, facing being placed in jail and so forth.... [B]efore whatever happens happens, I'd like to have this--a moment to get my life organized outside with Social Services and so forth....

The district court found cause to hold Goad for violation of the terms of his supervised release.

On the day scheduled for Goad's revocation hearing, Goad made a motion for the substitution of his appointed counsel. The court, after questioning Goad, found that the motion was based on his misinterpretation of the Sentencing Guidelines, and not on any failure of communication with his appointed attorney. The court informed Goad of the applicable sentencing range he faced for the violations of the terms of his release. Goad stated that his attorney had failed to inform him of what evidence the government intended to present against him and asserted that "[t]he whole time I've never known the implications of the guidelines." Goad's attorney disagreed and stated to the court, "Your Honor, I have to specifically disagree with that. I've been provided with the materials from the U.S. Attorney's Office that are--in this case." The court asked the Assistant United States Attorney, Grant Johnson, if he had turned over the sheriff's report to the defense. Johnson replied that the defense was given a copy of the revocation petition, which contained the sheriff's report detailing Goad's violations of the terms of his supervised release. The court denied Goad's request for new counsel. Goad then asked for permission to proceed pro se. The court acknowledged that Goad had the right to represent himself, but cautioned that if Goad were to proceed without counsel, the court would appoint Stokes as standby counsel. Goad consented and his hearing was adjourned until April 22, 1993.

On the rescheduled hearing date, the district court again apprised Goad of the nature of the charges against him, and again advised him of the possible period of confinement he faced. Goad renewed his request for substitution of counsel. ³ The court denied his request. Before allowing Goad to begin his defense, the district court repeated its order permitting Goad to represent himself with Stokes acting as standby counsel:

THE COURT: Mr. Stokes will then be appointed as standby counsel for the availability to answer those legal questions which you believe are concerns which you wish to discuss. Is that your understanding?

GOAD: Yes, sir.

THE COURT: Are you then prepared to represent yourself in this matter?

GOAD: Yes, I am sir.

The government presented two witnesses against Goad, Probation Officer Janine Frank, and Detective Thomas Kretschman of the Dane County Sheriff's Department. Frank testified from the sheriff's report and recounted the items found in Goad's possession at the time of his arrest. Goad declined to cross-examine Frank, stating he was "unprepared" even though shortly before, when questioned by the court, he asserted he was prepared to defend himself.

Detective Kretschman testified that he investigated a burglary that occurred on January 24, 1993 at a home in Maple Bluff, a suburb of Madison, Wisconsin. Kretschman explained that the burglar who invaded the Maple Bluff home had a modus operandi similar to that of the burglar responsible for other break-ins in the Madison, Maple Bluff, and Middleton areas. Receipts from local pawn shops listed a felon named Thomas King as the seller of silverware and jewelry reported missing after one of the local burglaries. When interviewed, King told the police that he was incarcerated at the federal prison in Sandstone, Minnesota with Goad. There, King explained, Goad had bragged about his burglaries. King further stated that he was a guest at Goad's mother's house from March 2, 1993 to March 5, 1993, and that he had taken silver and jewelry which Goad had stolen in earlier burglaries from the basement of that house. King offered his cooperation to the authorities; the police agreed to help ensure that King would not be incarcerated at the same prison with Goad.

Detective Kretschman testified that King's description of Goad's modus operandi matched that used in a number of home burglaries in the area subsequent to Goad's release. Kretschman also testified that King recounted specific information about the Maple Bluff burglary that could only have come from the perpetrator. Specifically, King informed the police that Goad had stated that he monitored police broadcasts during the burglaries with a handheld police scanner. King informed the officer that when Goad heard the police dispatched over the police scanner, he grabbed two Rolex watches and exited the premises. King stated that Goad told him he was already at his mother's house when he heard that the police entered the residence. Goad later pawned the two Rolex watches in Chicago. King knew this because he traveled with Goad to Chicago and paid for their bus tickets while Goad paid for their lodging.

Detective Kretschman also described to the court the method King explained that Goad used to determine which houses to burglarize. Thomas King informed Kretschman that

the method Goad used to determine his target homes was for him to go to the Madison City Library, take specific streets, ... and look at the affluence reading which is available indicating the income code of the people living on those streets. It also gives the street address which correlates to the telephone number. Mr. Goad would then call those numbers and set up a little chart [to reflect answered calls and unanswered calls].... Eventually that chart would indicate who was not occupying the residence such as being on vacation. These were the targeted houses.

Thereafter, Goad would case the house to determine if it had a security system. If it did, Goad would call the security system office or the alarm manufacturer posing as a prospective buyer, and,...