U.S. v. McDermott, s. 94-5101

• Decision Date: 29 August 1995
• Docket Number: Nos. 94-5101,94-5102,s. 94-5101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Bruce McDERMOTT II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1448

64 F.3d 1448

UNITED STATES of America, Plaintiff-Appellee, v. David Bruce McDERMOTT II, Defendant-Appellant.

Nos. 94-5101, 94-5102.

United States Court of Appeals, Tenth Circuit.

Aug. 29, 1995.

Submitted on the briefs: ^*

Stephen C. Lewis, U.S. Atty., and Allen J. Litchfield, Asst. U.S. Atty., Tulsa, OK, for plaintiff-appellee.

Michael G. Katz, Federal Public Defender, and James P. Moran, Asst. Federal Public Defender, Denver, CO, for defendant-appellant.

Before ANDERSON and BALDOCK, Circuit Judges, and BROWN, ^d District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

David Bruce McDermott II appeals his conviction on charges of engaging in a continuing criminal enterprise and interstate travel in aid of unlawful activity. He makes the following arguments: ¹ (1) The district court violated his Sixth Amendment right of self-representation by refusing to let him participate in bench conferences when he was proceeding pro se with standby counsel; (2) he was subjected to double jeopardy by being criminally prosecuted after the government had filed civil forfeiture proceedings against him to which he had responded; (3) the district court abused its discretion by admitting allegedly irrelevant and prejudicial testimony that Mr. McDermott had threatened to kill a woman after she called him a pothead and a drug dealer; (4) the district court abused its discretion by denying him a mistrial after a government witness testified that a codefendant had been on probation; and (5) the evidence was insufficient to show that Mr. McDermott had exercised the necessary supervisory or managerial role for a conviction under the continuing criminal enterprise statute.

Because we conclude that Mr. McDermott's Sixth Amendment right to self-representation was violated, but that the evidence was sufficient to sustain the conviction, we reverse the conviction and remand for a new trial.

BACKGROUND

On April 23, 1993, law enforcement officials executed search warrants at the residence and business premises of David Bruce McDermott II, in Broken Arrow, Oklahoma. The next month, federal authorities seized Mr. McDermott's pickup truck and boat, and in a letter dated July 2, the FBI notified him that it was proceeding administratively to forfeit the property on grounds that it had been used to transport a controlled substance, was furnished or intended to be furnished in exchange for a controlled substance, or represented proceeds of a drug transaction, in violation of 21 U.S.C. Secs. 881(a)(4) and (a)(6).

Mr. McDermott subsequently sent the FBI a letter with an affidavit of indigency, asserting claims to the pickup and the boat, to stop the administrative forfeiture and force the filing of a judicial forfeiture. On August 19, the FBI in Tulsa accepted cost bonds from Mr. McDermott, and on October 5, the government filed a civil complaint for forfeiture in rem. On November 2, Mr. McDermott answered and demanded a jury trial.

The next day, November 3, 1993, a federal grand jury in the Northern District of Oklahoma indicted Mr. McDermott, together with Lewis Stacy Lacy, Juan Antonio Mata, and Jaime Javier Mata. Mr. McDermott was charged with continuing criminal enterprise; conspiracy to possess with intent to distribute, and conspiracy to distribute, 100 kilograms or more of marijuana; and travel in interstate commerce with intent to promote, manage, establish, and facilitate distribution of marijuana. The conspiracy count also alleged that Mr. McDermott's pickup and boat were subject to criminal forfeiture pursuant to 21 U.S.C. Sec. 853.

On November 23, on the government's motion and over Mr. McDermott's objection, the civil forfeiture case was stayed pending the outcome of the criminal case.

On December 28, Mr. McDermott moved in the criminal case to proceed pro se, with his retained attorney acting as standby counsel. At the pretrial conference, his lawyer, Stuart Southerland, advised the court that there was no animosity between him and Mr. McDermott, but Mr. McDermott wanted to represent himself. The court granted the motion, but after the government objected to Mr. McDermott's full participation, the court ruled that he would not be allowed to participate in bench conferences, the jury instruction conference, or "the purely legal matters" of the case.

On the first day of the criminal trial, Mr. McDermott moved for dismissal on double jeopardy grounds, and the motion was denied. The government then put on twenty-eight witnesses. Of those, eight were business people testifying either to Mr. McDermott's cash purchases from them or, in one case, of the witness's equipment purchase from Mr. McDermott; three testified concerning records of 262 phone calls placed from Mr. McDermott's phone to various Mata family phone numbers in Texas; and three offered testimony concerning a controlled purchase by a government operative of a pound of marijuana from one of Mr. McDermott's alleged coconspirators, Billy Miller, and the subsequent laboratory tests on the substance.

One witness, Sharla Doss, testified that during an argument she had with Mr. McDermott concerning her love life, she called him a pothead and a drug dealer, and he threatened her life.

Of the remaining thirteen witnesses, who provided key testimony about their direct knowledge of Mr. McDermott's drug activities, at least eleven testified under grants of immunity. Seven also received pretrial diversion; three had plea bargains; and one, serving a twenty-year sentence, was told his cooperation would be reported to appropriate authorities.

On January 26, after a six-day trial, the jury convicted Mr. McDermott on the continuing criminal enterprise and interstate travel counts and found that his boat and pickup were subject to criminal forfeiture. About two months later, the court sentenced Mr. McDermott and signed an order of criminal forfeiture. Mr. McDermott subsequently moved to dismiss the civil forfeiture case, and the government opposed dismissal until the criminal forfeiture was final, at which point the government itself sought and was granted dismissal of the civil proceeding.

DISCUSSION

I. Self Representation

Defendants have a Sixth Amendment right to conduct their own defense, subject to conditions not pertinent to this case. Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 2541-42, 45 L.Ed.2d 562 (1975); see also McKaskle v. Wiggins, 465 U.S. 168, 178, 104 S.Ct. 944, 945, 79 L.Ed.2d 122 (1984). It is undisputed that Mr. McDermott timely and unequivocally asserted that right, together with a request for standby counsel to assist. Def.'s Motion filed Dec. 28, 1993, R. Vol. I, tab 46.

At pretrial on January 7, 1994, the district court broadly granted Mr. McDermott's motion, but imposed a critical exception. The court ruled that Mr. McDermott would not be permitted to be present at bench conferences. The ruling recognized Mr. McDermott's objection to that ruling and, by its terms, precluded the need for any renewal of the objection:

MR. McDERMOTT: Your Honor, are you telling me that I shall not be allowed at a certain type of in-camera hearing?

THE COURT: No, what I'm saying is you will not be allowed at the bench conferences, you will not be allowed at instruction conference. You will not address the purely legal matters, but you will be able to represent yourself on all other matters and you can communicate through your counsel on those matters. And the Court grants an exception redundantly under the Federal Rules to my ruling, because I take it that you object to the limitations I have placed on you, but those will be the limitations.

R. Vol. VI at 25. ²

The reason given by the court for this restriction was that Mr. McDermott was not equipped to handle purely legal matters and bench conferences centered on them:

THE COURT: Well, the bench conferences issues, to begin with those will deal with evidentiary issues, they will deal with the Federal Rules regarding criminal procedure. Those are not matters within the knowledge of Mr. McDermott and I think on all such issues his attorney should be involved and his attorney can communicate with Mr. McDermott because we're dealing in those conferences strictly with the Federal Rules of Evidence, and Mr. McDermott is not schooled in those.

At the instruction conference we're dealing with the esoterics of criminal cases, instructions of courts to juries on criminal cases, and it's my feeling that counsel is more appropriate for those proceedings than is the defendant.

I don't mean to unduly restrict you, Mr. McDermott, but we're going to restrict you from matters that are pure law, that is dealing with Federal Rules, federal instructions to juries, we will strict [sic] those to your lawyer and he can communicate those to you.

R. Vol. VI at 24.

It is important to note that the court gave no other reasons for excluding Mr. McDermott, including such matters as security considerations or any suggestion that Mr. McDermott would not abide by the necessary procedures or protocol of the court. The Supreme Court has made it clear that mere lack of familiarity with procedural and evidentiary rules is irrelevant, and this court has recently emphasized the point. Faretta, 422 U.S. at 836, 95 S.Ct. at 2541; United States v. McKinley, 58 F.3d 1475, 1481 (10th Cir.1995).

At trial, held from January 18 through January 26, 1994, Mr. McDermott was in fact barred from thirty bench conferences. ³ Some of these bench conferences addressed only minor procedural issues or matters concerning codefendants. But others concerned, inter alia, Mr. McDermott's motion for a judgment of acquittal, his motion for mistrial because of the admission of Sharla Doss's death threat testimony, multiple government objections to the substance and manner of Mr. McDermott's cross-examination, the admissibility against Mr. McDermott of hearsay testimony by his alleged coconspirators, Mr. McDermott's objection to the admission of photos...