U.S. v. Kind

• Decision Date: 15 June 1999
• Docket Number: No. 98-4193,98-4193
• Citation: 194 F.3d 900
• Parties: (8th Cir. 1999) United States of America, Plaintiff - Appellee, v. Darrell Theodore Kind, also known as Troy Swan, Defendant - Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 900

194 F.3d 900 (8th Cir. 1999)

United States of America, Plaintiff - Appellee, v. Darrell Theodore Kind, also known as Troy Swan, Defendant - Appellant.

No. 98-4193

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: June 15, 1999

Filed: October 15, 1999

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and BYRNE, ^* District Judge.

LOKEN, Circuit Judge.

Darrell Theodore Kind appeals his conviction and sentence for three federal firearm offenses. His appointed appellate counsel argues that the district court ¹ erred in allowing Kind to represent himself at trial, in denying him reasonable access to adequate legal resources to prepare for trial, and in denying him a two-level sentencing reduction for acceptance of responsibility. In addition, we granted Kind leave to file a pro se supplemental brief in which he raises eight additional issues -- error in refusing to sever one count, two issues relating to the elements of the firearm offenses, double jeopardy and jury instruction errors, and three sentencing errors. We affirm.

I. Background

Kind is a young man with a long history of minor and not-so-minor criminal offenses in Missouri, Colorado, and Minnesota. Two of those prior offenses are relevant to this appeal. In November 1994, Kind pleaded guilty in a Minnesota state court to the felony of aggravated harassment and received a sentence of sixty days in prison and three years probation. In November 1996, he was charged in another Minnesota state court with two felony counts of terroristic threats.

On December 20, 1996, Kind purchased a twelve-gauge pistol-grip shotgun from a federally licensed firearms dealer in Minnesota. Using the assumed name of Troy Swan, Kind falsely stated on the federal firearms acquisition form (ATF Form 4473) that he was not a convicted felon and had no pending felony charges against him. Based upon this transaction, Kind was charged with making false statements during a firearms purchase in violation of 18 U.S.C. 922(a)(6), being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1), and receipt of a firearm by an indicted person in violation of 18 U.S.C. 922(n).

After making numerous pretrial motions, Kind's initial appointed counsel moved to withdraw, citing a conflict with Kind and urging the appointment of Thomas Dunnwald as substitute counsel. That motion was promptly granted. Three months later, on the eve of trial, attorney Dunnwald filed a written motion to permit Kind to represent himself. After a hearing, the district court granted this motion, appointing Dunnwald to serve as stand-by counsel and continuing the trial. Two months later, again on the eve of trial, Kind raised an insanity defense and moved for a psychiatric examination on that question. The district court granted the motion and again continued the trial. Mental health professionals at the Federal Medical Center in Rochester, Minnesota, examined Kind and reached conclusions negating an insanity defense.

The three-day trial began on June 30, 1998, with Kind representing himself. He cross-examined the government's witnesses, made opening and closing statements, and testified on his own behalf. Briefly stated, Kind's defenses were that Troy Swan was a legitimate assumed business name, that Troy Swan was not a convicted felon and was not charged with a felony at the time of purchase, and that his state probation officer had told him he was not a convicted felon because of the sentence he received for the aggravated harassment offense in 1994. Attorney Dunnwald attended the entire trial as stand-by counsel, frequently advising Kind on questions of trial tactics and procedure, and participating actively in all discussions outside the jury's presence, including the instructions conference. The jury convicted Kind of all three charges.

II. Waiver of Counsel

Kind argues that the district court erred in allowing him to waive his right to trial counsel without making an adequate inquiry into whether the waiver was knowing, intelligent, and voluntary, as required by Faretta v. California, 422 U.S. 806 (1975), and Godinez v. Moran, 509 U.S. 389 (1993). We affirm the grant of a defendant's motion to represent himself at trial "if the record shows either that the court adequately warned him or that, under all the circumstances, he knew and understood the dangers and disadvantages of self representation." United States v. Patterson, 140 F.3d 767, 774-75 (8th Cir.), cert. denied, 119 S. Ct. 245 (1998). We review the determination that a valid waiver occurred de novo. See United States v. Veltman, 9 F.3d 718, 721 (8th Cir. 1993), cert. denied, 511 U.S. 1044 (1994). When the district court has not specifically warned the defendant of the dangers and disadvantages of self- representation before granting the motion, "we must review the entire record to determine if the defendant had the required knowledge from other sources." United States v. Yagow, 953 F.2d 427, 431 (8th Cir.), cert. denied, 506 U.S. 833 (1992).

In this case, Kind's second appointed counsel filed a motion on the eve of trial stating that Kind had decided to represent himself "after consultation with his current appointed counsel and his own review of the Federal Rules of Criminal Procedure and applicable case law." The motion requested a hearing "pursuant to Faretta . . . to allow the Court to advise the defendant of his rights and privileges and to consider the request." The following occurred at the start of that hearing:

THE COURT: Mr. Kind, your counsel has indicated . . . that you were desirous of proceeding as your own counsel in this matter. Is that a correct statement?

THE DEFENDANT: Yes.

THE COURT: You need to know you have a right to do that, so I will permit you to do it. I will also tell you, though, that there is an old adage around here that a person that represents [himself] has a fool for a client. And you have got to be pretty careful about this. Remember, this legal business is very complex and there are a lot of procedures and there are a lot of rules that need to be followed in the process.

And that while there are certain things which the Court can answer questions for you . . . and there are certain things to which Mr. Dunne [the prosecutor] can answer questions for you . . . we have different roles. Mr. Dunne's role is to represent the government. His job is to prosecute. My job is to be a judge. That means that my job is to be an impartial arbitrator. So, when you are asking for this, I'm warning you today, don't expect very much help from either of us, because of the different roles that we play in the courtroom.

. . . [A]s I say, if you do want to represent yourself, it is a right that you do have. I think I would, nevertheless, appoint Mr. Dunnwald as stand-by counsel for you. So that when the matter does go to trial, Mr. Dunnwald would be here if circumstances should arise that counsel are needed and he is familiar with the matter. So, I do make that appointment.

The last thing I understand is that you have an interest in having the matter delayed for a period of time for your personal preparation for it, is that correct?

THE DEFENDANT: Correct.

THE COURT: We have had some discussion . . . [a]nd our thought is that the case could be called to trial either on April 13 or on April 20. Any problem with those dates?

THE DEFENDANT: No, sir.

The remainder of the hearing addressed whether Kind was receiving adequate access to legal materials while being detained in state correctional facilities.

Although the district court's warning of the dangers and disadvantages of self-representation was less instructional than might be necessary in other cases, we conclude it was adequate in this case. At the time of the Faretta hearing, two appointed counsel had filed numerous pretrial motions on Kind's behalf. The self-representation motion was prepared by counsel and stated that counsel had discussed the question with Kind. In granting the motion, the court specifically warned Kind that self-representation was ill-advised and hazardous and then appointed attorney Dunnwald as stand-by counsel. Dunnwald actively advised Kind throughout the trial, without interfering with Kind's self-representation before the jury, which he explained and justified while testifying in his own defense. Neither Kind nor counsel objected to the court's resolution of the self-representation issue, either at the Faretta hearing or at any time during the trial. Based upon our review of the entire record, we affirm the district court's determination that Kind's waiver of his right to trial counsel was knowing, intelligent, and voluntary. Compare United States v. Day, 998 F.2d 622, 626-27 (8th Cir. 1993), cert. denied, 511 U.S. 1130 (1994).

Kind also argues that his later request for a psychiatric exam to explore an insanity defense demonstrates that the court should have explored his competency to waive counsel at the Faretta hearing. We disagree. "[A] competency determination is necessary only when a court has reason to doubt the defendant's competence." Godinez, 509 U.S. at 401 n.13. The district court had no reason to doubt Kind's competency at the time of the Faretta hearing, and nothing that occurred thereafter -- including the results of his examination at the Federal Medical Center and his conduct during trial -- should have caused the court to revisit this issue on its own motion.

III. Access to Legal Resources

Kind argues he was denied due process because, as a pretrial detainee, he was not provided adequate legal resources to prepare his own defense. "Pro se defendants have a right of access to adequate law libraries or adequate assistance from persons trained in the law." United States v. Knox, 950 F.2d 516, 519 (8th Cir. 1991) (quotations omitted). But a pretrial detainee has no abstract...