U.S. v. Keen, 95-10183
| Decision Date | 02 January 1997 |
| Docket Number | No. 95-10183,95-10183 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James L. KEEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rustam A. Barbee, Assistant Federal Public Defender, Honolulu, HI, for defendant-appellant.
Sharon Burnham, Assistant United States Attorney, Honolulu, HI, for plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii, Harold M. Fong, * District Judge, Presiding. D.C. No. CR-93-02220-HMF.
Jan. 2, 1997
The opinion in the above-captioned case which was filed on September 18, 1996, is amended as follows:
On consideration of the petition for rehearing filed in the above-entitled cause by defendant-appellant James L. Keen, all of the judges on the original panel having voted to deny the same,
IT IS HEREBY ORDERED that the aforesaid petition for rehearing be, and the same is hereby, DENIED.
Before WOOD, Jr. ** , CANBY, and RYMER, Circuit Judges.
On September 23, 1994, James L. Keen was convicted of five counts of bank robbery in violation of 18 U.S.C. § 2113(a), one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1), and one count of illegal possession of a sawed-off shotgun in violation of 26 U.S.C. § 5861(d). In light of Keen's three prior convictions for violent felonies, he was sentenced to a term of 327 months imprisonment. This appeal followed.
Keen was convicted of robbing five banks within a two-month period. Federal agents were first led to Keen after a teller at the fifth bank observed the license plate number of Keen's car. Keen was arrested as he was about to enter his hotel room on November 10, 1993, the day following the fifth robbery. Inside Keen's room, agents discovered over $1000 in currency, including 10 "bait bills," bills whose serial numbers had been pre-recorded by bank officials. Agents also found a loaded shotgun and additional ammunition in the room. The shotgun's barrel had been roughly sawed down and the stock had been cut into a pistol grip. Keen was eventually charged with five counts of bank robbery and four firearms-related counts.
On March 14, 1994, Keen notified the court of his intent to pursue an insanity defense. In response to the government's motion, the court ordered that Keen undergo a psychological evaluation. On the basis of the report prepared by the government's psychologist, which concluded that Keen was merely malingering (and unmoved by Keen's claim that a "giant iguana" had compelled him to commit the robberies), the court concluded that Keen was competent to proceed to trial.
Pending the completion of his psychological evaluation, Keen had begun submitting motions on his own behalf; Rustam A. Barbee, Keen's defense counsel, also filed two motions. After the court concluded that Keen was sufficiently competent, a hearing on the pending motions was held on August 9, 1994, during which the court was informed that Keen wished to proceed pro se. The court briefly addressed Keen, and then allowed him to do so. The court also obtained Keen's consent to appoint Barbee to serve as his assistant counsel. Two further hearings were held, during which Keen argued his motions. Following the hearings, the court denied all of the motions.
A final pretrial conference was held on September 19, 1994. At this time, Barbee informed the court that Keen "does not want to participate in this proceeding, nor does he want to participate in the trial scheduled for tomorrow." The court then sought to learn whether Keen was withdrawing his request to represent himself or whether he intended to merely remain silent throughout the proceedings and put the government to its burden of proof. Keen responded to the court's inquiries by stating that he was communicating with God about the trial, that the government was "an anti-Christ," and that the court had no jurisdiction over him. The court was satisfied that Keen was competent, so it concluded he was likely engaging in some ploy. Since Keen refused to answer its questions regarding representation, the court felt constrained to follow Keen's last known position on the subject and it ruled that Keen should be considered as still proceeding pro se.
At the September 19 hearing, the court also heard argument on the government's motion in limine to preclude Keen's use of the insanity defense. In light of the psychological exam previously conducted by the government, the court's own interactions with Keen, the lack of expert testimony in support of the defense, and Keen's failure to oppose the motion in limine, the court granted it and precluded the use of the insanity defense.
Jury selection began the next day, September 20, 1994. Keen continued to refuse to participate and he refused to request the reappointment of counsel. During jury selection, Keen wrote a note to the judge in which he claimed to be "physically ill" and "physically and mentally unable to defend himself." As jury selection was nearly completed, the court stated that Keen would have to wait to be examined by a physician. A little while later, after his further requests to leave the courtroom were denied, Keen became physically disruptive: He knocked a water jug off a table, knocked over a microphone, and attempted to kick over a table. 1 In response to Keen's outbursts, the court placed him in a nearby room equipped with a video monitor so that Keen could continue to observe the proceedings without prejudicing the prospective jurors with his behavior. 2 Keen did not, however, expressly waive his right to continue representing himself.
After Keen's removal from the courtroom, Barbee exercised challenges for cause on Keen's behalf. The court then directed Barbee to go and confer with Keen regarding his peremptory challenge. Keen, however, continued to remain silent. Since Barbee had been instructed to "physically exercise the peremptory challenge[s] on [Keen's] behalf," he felt that he lacked the authority to exercise his independent judgment and he waived all peremptory challenges on Keen's behalf.
Prior to the commencement of the opening statements the next day, September 21, Keen The trial proceeded and Keen was eventually convicted of eight of the nine counts brought against him. On March 28, 1995, Keen was sentenced to a term of 327 months imprisonment and 5 years of supervised release, and he was ordered to pay restitution. This appeal followed.
stated: "I cannot participate in this trial, or proceed pro se; I don't know how." The court took this as an indication that Keen no longer wished to represent himself and it re-appointed Barbee to an active role
Keen first argues that the court erred when it permitted him to proceed pro se. An accused has the constitutional right to self-representation, of course, but the decision to waive the right to counsel is valid only if it is "timely, not for the purposes of delay, unequivocal, and knowing and intelligent." United States v. Arlt, 41 F.3d 516, 519 (9th Cir.1994); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Keen contends that his decision to proceed pro se was not knowing and intelligent because the district court failed to fully inform him of the disadvantages he would face.
"We approach the question of whether [the defendant's] waiver was knowing and intelligent with caution, recognizing the serious nature of the inquiry and the Supreme Court's admonition that 'courts indulge in every reasonable presumption against waiver.' " Arlt, 41 F.3d at 520 (quoting Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977)). Other circuits have prescribed a meticulous litany to be employed by the district court when it is faced with a prospective pro se defendant. See United States v. McDowell, 814 F.2d 245, 249-52 (6th Cir.), cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987). Although such a methodology may have its advantages, we have never demanded an ironclad approach to this situation. Arlt, 41 F.3d at 520. It is not our intention to craft such an approach here. However, we do generally require that the defendant be made aware of the "three elements" of self-representation: "[I]t must be established that the defendant was 'aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation.' " United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir.1994) (quoting United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987)).
The government bears the burden of showing that Keen's waiver of counsel was knowing and intelligent. Mohawk, 20 F.3d at 1484. Furthermore, "[t]hroughout this inquiry, we must focus on what the defendant understood, rather than on what the court said or understood." Balough, 820 F.2d at 1487-88. In this regard, it is Keen's " 'state of mind at the time he opted for self-representation' " which is crucial. Mohawk, 20 F.3d at 1485 (quoting United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir.1978)).
The "preferred procedure" by which a court informs a defendant of the three elements of self-representation is through a discussion in open court. Balough, 820 F.2d at 1488. Therefore, we will first turn to the colloquy between Keen and the court at the August 9 hearing in order to determine whether Keen's waiver of his right to counsel was knowing and intelligent.
When the district court first asked Keen if it was truly his wish to represent himself, Keen replied: 3 The following exchange then took place:
To continue reading
Request your trial
-
Groffel v. Commonwealth
...439 F.3d 421, 422 (8th Cir. 2006) (en banc ) (per curiam ); Clark, 184 F.3d at 872 ; Dunford, 148 F.3d at 390 ; United States v. Keen, 104 F.3d 1111, 1119-20 (9th Cir. 1996) ; State v. Auwae, 89 Hawai'i 59, 968 P.2d 1070, 1081 (Haw. Ct. App. 1998), overruled in part on other grounds, State ......
-
People v. Whitmer
...F.3d 199, 207 ; U.S. v. Verrecchia (1st Cir.1999) 196 F.3d 294, 297 ; U.S. v. Wilson (D.C.Cir.1998) 160 F.3d 732, 749 ; U.S. v. Keen (9th Cir.1996) 104 F.3d 1111, 1119 ; U.S. v. Song (7th Cir.1991) 934 F.2d 105, 108 ; U.S. v. Mastrangelo (11th Cir.1984) 733 F.2d 793, 801 ; U.S. v. Valentine......
-
U.S. v. Overton
...a Blockburger analysis produces a contrary finding regarding congressional intent. Rather, citing our decisions in United States v. Keen, 104 F.3d 1111 (9th Cir.1996), and United States v. Zalapa, 509 F.3d 1060 (9th Cir.2007), he contends that the Blockburger test does not apply because Cou......
-
U.S. v. Vargas-Castillo
...the object of the offense as "any firearm." 18 U.S.C. § 922(g)(1); 18 U.S.C.App. § 1202(a)(1) (repealed 1986). In United States v. Keen, 104 F.3d 1111 (9th Cir.1996), we held that the use of the word "any" in section 922(g)(1), rendered ambiguous any congressional intent to impose cumulativ......