U.S.A v. Long

• Decision Date: 19 February 2010
• Docket Number: No. 09-10003.,09-10003.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Michael LONG, DefendantAppellant.
• Court: U.S. Court of Appeals — Fifth Circuit

597 F.3d 720

UNITED STATES of America, Plaintiff-Appellee, v. James Michael LONG, DefendantAppellant.

No. 09-10003.

United States Court of Appeals,

Fifth Circuit.

Feb. 19, 2010.

Renee Harris Toliver, Asst. U.S. Atty Fort Worth, TX, for U.S. Jason Douglas Hawkins, Fed. Pub. Def Dallas, TX, for Long.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

The government charged James Michael Long with four counts of wilfully failing to file income tax returns, contrary to 26 U.S.C. § 7203. After a trial on the merits the jury found Long guilty of all four counts. Long, represented on appeal by the Federal Public Defender's Office, appeals on two grounds. First, Long contends that the district court wrongfully denied him his right to represent himself. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975). Second, he contends that the trial court erred in denying his pro se motion to dismiss based on the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). We affirm the district court for the reasons stated below.

BACKGROUND

On April 1, 2008, the United States Attorney filed in United States District Court for the Northern District of Texas Lubbock Division, a bill of information charging Long, allegedly a resident of Plainview, Texas (which is within that division), with four counts of violating 26 U.S.C. § 7203 by wilfully failing to file his federal income tax returns for each of the respective calendar years 2001 (count 1) 2002 (count 2), 2003 (count 3), and 2004 (count 4), although he had gross income in excess of approximately $65,000 in 2001, $80,000 in 2002, and $188,000 in 2003 and 2004 each. On the same day, a summons issued out of the Lubbock Division requiring Long to appear before the court on April 23, 2008 in reference to the informa tion. On April 30, 2008, the government filed in the Lubbock Division a motion to issue an arrest warrant for Long, alleging that he had never appeared, and that the summons had not been served on him although "[n]umerous attempts have been made to locate the defendant, all to no avail." The same day Magistrate Judge Koenig of the Lubbock Division granted the motion and the arrest warrant was issued. On May 22, 2008, apparently in the Fort Worth Division of the Northern District of Texas, Long was arrested pursuant to the warrant and, after being brought before pretrial services in Fort Worth, he was brought before Magistrate Judge Bleil of the Fort Worth Division for his initial appearance on the April 1, 2008 bill of information. Also present was Assistant Federal Public Defendant Fleury to represent Long.

At this hearing, Long, among other things, purported to fire Fleury, his public defender attorney. Judge Bleil then orally announced that Fleury was "appointed to represent Mr. Long, understanding, Mr. Fleury, that he doesn't wish to have your representation, I will consider this as stand-by representation." Judge Bleil further stated to Fleury "while you're in Fort Worth, you're fsicj responsibilities as stand-by counsel are to assist Mr. Long if he asks for your assistance in any way." However, Judge Bleil's May 22, 2008 written order appointing "the Federal Public Defender's Office of this District" as counsel for Long in the case makes no mention of being stand-by counsel or the like.

At the May 22 hearing Judge Bleil also orally ordered that Long "be detained pending further court proceedings finding that you are a risk of nonappearance and without any information concerning you due to your lack of cooperation with theprobation officer" and that "you're a danger to others."¹

Finally, Judge Bleil, at the May 22 hearing, orally directed Long be "transported to the Lubbock Division of the Northern District of Texas." Long was transferred to Lubbock, and on May 23, 2008, Assistant Federal Public Defender Kime-Goodwin entered her written appearance in the Lubbock Division in this case as representing Long.

Long's next appearance was on June 25, 2008, before Magistrate Judge Koenig in the Lubbock Division. Again, Long purported to fire his public defender attorney. In response, Judge Koenig set a Faretta hearing for August 25th, 2008 to determine whether Long knowingly and intelligently waived his right to counsel. At the August 25 hearing, Long refused to cooperate with Judge Koenig. For example, Long refused to answer any questions and requested a side bar conference with the judge. When the judge told Long that he needed to state his issues on the record, or talk to a pretrial services officer to determine whether he could be released on bond or his own recognizance or could retain counsel or could proceed pro se, Long refused and requested to postpone the hearing. The judge postponed the Faretta hearing for two days. At the August 27 hearing, Long again refused to cooperate. Judge Koenig once more postponed the hearing to September 3. Again, Long refused to cooperate. At the September 3 hearing Judge Koenig had the bill of information read to Long, and ordered that a not guilty plea be entered for him.

Judge Koenig referred Long to District Judge Cummings for the Faretta hearing. At a pretrial hearing on October 6, 2008, before trial commenced later that day, Long appeared with Assistant Federal Public Defendant Kime-Goodwin, who informed the court that she had requested the pretrial hearing because Long had said "he fired our office" and "essentially said that he wished to represent himself and that she believed that accordingly he should "be advised of Faretta warnings by this court." Thereafter, at the request of Long, attorney Kime-Goodwin moved for a continuance of the trial which Judge Cummings denied. Judge Cummings accordingly then asked the defendant whether he wished to represent himself. Long responded, "No, sir." Long was thereafter tried and convicted on October 6, 2008. At sentencing on December 30, 2008, Long's attorney Kime-Goodwin informed the court that Long wished to fire her. Long attempted to speak up, but the district judge told him to wait his turn. When the judge allowed Long to speak, Long stated only, "For the record, Your Honor, your offer of contract is accepted for value and returned with consideration for discharge, settlement, and closure." Judge Cummings sentenced Long to thirty-seven months in prison (consecutive sentences of twelve months on each of counts 1, 2 and 3 and one month on count 4) and concurrent one year terms of supervised release on each count. No fine was imposed; restitution to the United States of $93,484.69 was ordered.

ANALYSIS

I. Right to Self-Representation

A defendant has a right to represent himself at trial. Faretta, 95 S.Ct. at 2532. An impermissible denial of self-representation cannot be harmless. United States v. Cano, 519 F.3d 512, 516 (5th Cir.2008). The defendant must knowingly and intelligently forego his right to counsel, and must clearly and unequivocally request to proceed pro se. Id. If the right to counsel is to be waived, the trial court must conduct a Faretta hearing, cautioning the defendant about the dangers of self-representation and establishing, on the record, that the defendant makes a knowing and voluntary choice. Id,. Nevertheless, the defendant may waive his right to self-representation through subsequent conduct indicating an abandonment of the request. Id. There is no constitutional right to hybrid representations whereby the defendant and his attorney act as cocounsel. Id.

A. Long Did Not Clearly and Unequivocally Request to Proceed Pro Se

United States v. Cano gives an example of a clear and unequivocal waiver of the right to counsel. In Cano, the defendant asked the court to dismiss his counsel and allow him to represent himself, stating that he wanted to "invoke his Constitutional Right to Self-Representation as to the matters before the court." Id. The court found that request to clearly and unequivocally assert the right to self-representation. Id. Like Cano, Long indicated to Magistrate Judge Koenig that he is "the attorney in fact" when the judge asked him at the June 25, 2008 hearing who he wanted to replace the public defender. At the June 25 hearing, Long filed a document purporting to fire the public defender and granting himself the power of attorney. Moreover, the magistrate judge understood that Long sought to represent himself because she ordered a Faretta hearing in response to Long's statements. Compounded on this are Long's several statements that if "any[one]" thought they represented Long, "they were fired." Unlike Cano, however, Long never clearly or expressly asserted either his right to represent himself or that he wanted to proceed pro se.

Many cases suggest that something more than just firing one's attorney is required before one clearly and unequivocally requests to proceed pro sc. E.g. Moreno v. Estelle, 717 F.2d 171, 174-75 (5th Cir.1983). "[T]he right to counsel is in force until waived^ [and] the right to self-representation does not attach until asserted." Id. at 174 (quoting Brown v Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (en banc)) (emphasis in original). Moreno found that the defendant did not waive his right to counsel because he told the court he wanted to fire counsel without explicitly informing the court that he wished to proceed pro se. Id. at 174-75. Next, in Burton v. Collins, 937 F.2d 131 133-34 (5th Cir.1991), this court found no clear and unequivocal waiver where a defendant informed the judge he wanted to fire his attorney and asked, "May I represent myself?" Burton, 937 F.2d at 132. The court interpreted Burton's question as an inquiry into the possible alternatives available. Id. at 134.

Finally, United States v. Ibarra, is an unpublished opinion of this court the facts of which are somewhat similar to those in the instant case. 236 Fed.Appx. 10, 12 (5th Cir.2007). There, Ibarra's...