U.S. v. Hung Thien Ly
| Decision Date | 20 July 2011 |
| Docket Number | No. 09–12515.,09–12515. |
| Citation | 646 F.3d 1307,23 Fla. L. Weekly Fed. C 141 |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.HUNG THIEN LY, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Raymond Richard Granger, Granger & Associates, LLC, New York City, for Appellant.James C. Stuchell, R. Brian Tanner, Savannah, GA, for Appellee.Appeal from the United States District Court for the Southern District of Georgia.Before TJOFLAT, WILSON and SEYMOUR,* Circuit Judges.TJOFLAT, Circuit Judge:
In this case, we must confront a district court's duties to a pro se criminal defendant. After the defendant, Hung Thien Ly, attempted to question witnesses in presenting his defense at trial, the district court inquired whether Ly wished to take the stand and testify on his behalf. During the ensuing colloquy, Ly exposed a misunderstanding of his right to testify. He believed that he could testify on direct examination only if he was being questioned by an attorney; he was clearly ignorant of his ability to provide narrative testimony. Throughout this court-initiated colloquy, the district court did not correct Ly's misunderstanding. Rather, it merely informed him that he had an “absolute right to testify.” Ly chose not to take the stand and the jury found him guilty as charged.
Ly argues on appeal that the district court effectively denied him his right to testify. We agree. In these circumstances, particularly where the district court initiates a colloquy with the defendant regarding his right to testify, the district court is duty-bound to correct a pro se defendant's obvious misunderstanding of his right to testify. Because this error was not harmless, Ly's convictions cannot stand.
Ly is a medical doctor licensed in the State of Georgia to practice medicine and dispense controlled substances to patients. In September 2007, a Southern District of Georgia grand jury indicted Ly on 129 counts of unlawfully dispensing certain controlled substances by means of written prescriptions made “outside the usual course of professional practice and without legitimate medical purpose,” in violation of 21 U.S.C. § 841(a)(1)1 and 21 C.F.R. § 1306.04.2 The conduct alleged in the indictment spanned from April 2004 to September 2005 and involved controlled substances falling under schedules II, III, and IV of 21 U.S.C. § 812.3
At his initial appearance before the magistrate judge on October 3, 2007, Ly claimed that he was indigent and made an oral request for appointed counsel under 18 U.S.C. § 3006A. The Government opposed the motion, arguing that Ly had placed all his assets in his wife's name and that Ly's professed indigence was spurious. Following an investigation by the district court's Probation Office, the magistrate judge entered an order on October 22, 2007, denying Ly's request for appointed counsel because Ly had “systematically transferred his assets to his wife ... [to] obtain appointed counsel at public expense.”
Ly appeared before the magistrate judge for arraignment on November 6, 2007. At that appearance, Ly objected to the magistrate judge's October 22 order denying his request for appointed counsel. Ly explained that, if the district court affirmed the order, he could not afford an attorney and therefore would defend the charges pro se, notwithstanding that he lacked legal training or that his criminal trial would be the first time he witnessed a trial. The magistrate judge postponed the arraignment until after the district court ruled on Ly's motion for appointment of counsel. The magistrate judge then engaged in a colloquy with Ly to inform him of the dangers inherent in representing himself at trial. Among these warnings, the magistrate judge told Ly that a lawyer's advice would benefit Ly's decision “whether [he] should take the stand and testify” at trial; and that the trial judge could not “serve as [Ly's] lawyer” and “could not come to [his] aid” “if it saw that [he was] making what the [judge] believed to be critical errors.”
On November 16, 2007, the district court affirmed the magistrate judge's order regarding Ly's ability to afford an attorney, and remanded the case to the magistrate judge for arraignment and to permit the magistrate judge to re-inform Ly of the dangers of proceeding pro se. The arraignment took place on December 4, 2007. Ly refused to enter a plea, either orally or in writing, so the magistrate judge directed the clerk to enter a plea of not guilty to all charges. Before doing so, the magistrate judge again warned Ly of the dangers of representing himself in court, and that the trial judge would not “tell [him] how to try the case, or even advise [him] as to how [he] should do so.”
Ly's case proceeded to trial. The Government's case in chief against Ly consisted of, among other things: (1) expert testimony about the regulation of controlled substances; (2) expert testimony regarding standard prescription practices and how Ly's actions deviated from those standard practices; (3) testimony from eleven of Ly's patients explaining Ly's prescription practices; (4) testimony from four retail pharmacists who became suspicious of Ly's practices and therefore stopped filling prescriptions written by Ly; (5) evidence that pharmaceutical companies sold large quantities of controlled substances to Ly and that one company stopped selling to Ly because of these purchases; and (6) the results of a lawful search of Ly's house and office.
After the Government rested, Ly chose to put on a defense. He called some of his patients to show that his normal prescription practices were benign. The district court barred their testimony, however, as improper evidence of prior good acts under Federal Rule of Evidence 404(b). The court explained to Ly that such evidence was inappropriate, but that Ly could testify as to “what kind of practice [he] h[ad] and how [he] handle[d his] patients” and could call witnesses to testify about the Government's witnesses' reputation for truthfulness. Ly then called two witnesses in the hope of impeaching the credibility of the patients who had testified against him. The two witnesses, however, did not know the reputations of those patients. After this unsuccessful attempt at direct examination, Ly informed the district court that he had no other witnesses to call.
The court then called a side-bar conference and asked Ly if he intended to testify. The transcript of this colloquy reveals that Ly was unaware that he could testify in narrative form—that he did not need a third party, i.e., an attorney, to ask him questions—and that the district court did nothing to correct Ly's misunderstanding. The colloquy reads:
Ly did not testify, and the defense rested. The jury convicted Ly on all 129 counts. The district court sentenced Ly to concurrent terms of imprisonment totaling ninety-seven months and fined him $200,000.
Ly appealed his conviction and argues that the district court denied him his right to testify by failing to correct his misunderstanding regarding the availability of narrative testimony.4 We have jurisdiction, 28 U.S.C. § 1291, and we review his claim de novo,5 United States v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir.1998).
We begin with two critical observations that will drive our subsequent analysis. First, Ly's statements clearly indicate that he did not understand the nature of his right to testify, and that the district court—having heard Ly's responses—must have known this. Second, the district court did nothing to correct Ly's misunderstanding and its silence likely reinforced Ly's mistaken view.
The colloquy excerpted in part I, supra, shows that Ly misunderstood the nature of his right to testify—he did not know that he could testify in narrative form. When the court asked Ly if he had decided not to testify, Ly responded, “Because I don't have counsel who can ask me questions.” This belief led him to conclude that, were he to take the stand, his only testimony would come from the Government's cross-examination. Ly made this clear when he told the...
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