U.S. v. McDowell

• Decision Date: 27 April 1987
• Docket Number: No. 86-1276,86-1276
• Citation: 814 F.2d 245
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Stewart McDOWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 245

814 F.2d 245

UNITED STATES of America, Plaintiff-Appellee, v. William Stewart McDOWELL, Defendant-Appellant.

No. 86-1276.

United States Court of Appeals Sixth Circuit.

Argued Dec. 9, 1986.

Decided March 16, 1987.

Rehearing and Rehearing En Banc Denied April 27, 1987.

William S. McDowell, Corunna, Mich., David K. Frank (argued), Schwenker, Cloud & Tudor, Columbus, Ohio, for defendant-appellant.

Robert W. Haviland, Asst. U.S. Atty., Flint, Mich., for plaintiff-appellee.

Before ENGEL and JONES, Circuit Judges, and EDWARDS, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Defendant William Stewart McDowell appeals from his jury conviction on one count of conspiracy to counterfeit in violation of 18 U.S.C. Sec. 371 (1982), and one count of willful failure to appear (bond jumping) in violation of 18 U.S.C. Secs. 3146(a) and 3150 (1982). ¹ The evidence against McDowell presented at trial was overwhelming. He now challenges his conviction on various sixth amendment grounds. After reviewing the entire record, we find no constitutional violation and, therefore, affirm.

I.

On June 24, 1983, McDowell and his wife, Revera Hendrix, were arrested by federal agents in a counterfeiting "sting." That same day, McDowell was visited at the police station by his retained counsel, Don Poniatowski. McDowell and Hendrix were arraigned before a federal magistrate on June 26, 1983. At that time, Poniatowski's law partner, John Nowak, entered an appearance on McDowell's behalf. McDowell and Hendrix were released on bond and promptly fled the country. On April 25, 1985, McDowell and Hendrix were arrested At his subsequent arraignment and detention hearing, McDowell was represented by another retained counsel, Michael Osaer. Nevertheless, over the magistrate's advice, McDowell made his own motion to dismiss the indictment. Two days later, on June 20, 1985, Nowak reappeared on McDowell's behalf. On July 1, Nowak withdrew and Emory Clark appeared as retained counsel for McDowell.

by Canadian authorities in Alberta. They were returned to Michigan where they were indicted on the instant charges.

A pretrial motions hearing was held by the district judge on August 20, 1985. Mr. Clark was allowed to withdraw at that time because McDowell was no longer able to pay for his services. The district judge indicated that he would appoint counsel to represent McDowell--a Mr. Bremer. Despite Bremer's appointment, McDowell made repeated attempts to act as his own attorney at that hearing. It was also revealed at the August 20 hearing that McDowell had retained at least four other attorneys in the United States and Canada in an effort to recover money and property seized by the Canadian authorities.

On August 26, 1985, Bremer stated to the court that he could not be prepared for a September 3 trial date. McDowell refused to agree to an adjournment of the trial date and indicated that he was prepared to represent himself on that date: "I myself am ready [for trial] if I could have the rights granted to me...." Rather than have McDowell proceed pro se, the district judge allowed Bremer to withdraw and appointed yet another counsel--Charles Grossman. Grossman convinced McDowell that an adjournment of the trial date was in his best interests, and the trial was postponed until a future date not earlier than November 1, 1985.

The final pretrial hearing was held on October 23, 1985, at which time McDowell was still represented by Grossman. McDowell indicated that he was satisfied with Grossman's services up to that point. Nevertheless, Grossman stated to the court that his client had finally come to a decision as to whether he wanted to be represented by appointed counsel or to proceed pro se. After the court indicated its willingness to continue the appointment of Grossman as advisory counsel in the event that McDowell exercised his constitutional rights to self-representation, the following colloquy took place:

THE COURT: Okay. Have you made a decision as to what you wish to do in this case?

DEFENDANT McDOWELL: Represent myself with his [Grossman's] assistance, if you can do that?

THE COURT: All right, you understand that you will not be able to present something to me without going through him first? That's what I said to you a few moments ago, that if he's there as your counsel to consult, then you must consult with him before you present something to me. That's so that he can advise you as to its legality, it's the appropriate form and that it's the appropriate time and the appropriate method of presenting it to me. And also he can at that time advise you as its likelihood of success or failure. Do you understand that, Mr. McDowell?

DEFENDANT McDOWELL: Uh-huh, yes.

THE COURT: Any reason why I should not grant Mr. McDowell's request in this case in this fashion, Mr. Haviland [Asst. U.S. Att'y]?

MR. HAVILAND: No, your Honor.

THE COURT: All right, then you may represent yourself subject to Mr. Grossman remaining your advisory counsel and subject to the restriction that I have indicated, that you must consult with him before submitting anything to me.

App. 54-55. Throughout the trial, the district judge repeatedly had to remind McDowell of the condition that he check with Grossman before proceeding. The court also repeatedly indicated to McDowell, and to the other parties to the trial in McDowell's presence, that he thought McDowell was making a mistake and was "in over his head."

In preparation for trial, McDowell demanded, received and read the transcripts

of the grand jury testimony of witnesses against him. He used this information in his cross-examination of government witnesses (he conducted cross-examination of each and every witness). He also called witnesses in his defense and testified himself with Grossman conducting the examination.

II.

All of McDowell's arguments to this court revolve around whether he knowingly and intelligently waived his sixth amendment right to counsel while asserting his alternative right to self-representation. In particular, he argues that the conviction should be reversed because the district court failed to make explicit warnings and determinations on the record relative to the waiver of counsel. He also contends that the district court erred in failing to inquire into and determine his competence to conduct his own defense. Finally, McDowell maintains that it was plain error not to declare a mistrial sua sponte when it became apparent that he was not representing himself effectively. We address these contentions seriatim.

A.

The first issue presents the question whether the district court was required to conduct a lengthy and searching inquiry on the record to determine whether McDowell understood his right to be represented by counsel, the gravity of his decision to represent himself, and the obstacles that he would face. McDowell's counsel urges this court to reverse the instant conviction and create a prophylactic warning and inquiry to be conveyed to every criminal defendant wishing to assert his constitutional right to self-representation. Failure to make this warning and inquiry, or its functional equivalent, on the record and prior to the waiver of counsel, would necessarily be reversible error. While there can be no question but that this appeal would have been precluded or at least expedited had such a formal colloquy been held, we are reluctant to reverse an otherwise valid conviction under these circumstances.

The legal standard is well-settled that an accused's waiver of his right to counsel must be knowingly and intelligently made. See Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888-89, 8 L.Ed.2d 70 (1962); Von Moltke v. Gillies, 332 U.S. 708, 727, 68 S.Ct. 316, 325, 92 L.Ed. 309 (1948); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241-42, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 1024-25, 82 L.Ed. 1461 (1938). The Supreme Court stated in Carnley:

Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.

369 U.S. at 516, 82 S.Ct. at 890. Although the instant record does not speak very loudly on this issue, it cannot fairly be characterized as "silent." McDowell was clearly and repeatedly advised of his right to counsel, and his right to have counsel appointed if necessary, prior to his assertion of his right to self-representation.

Before 1975, constitutional determinations of the voluntariness of a waiver of counsel were motivated primarily by the need to protect accused persons from the dire consequences of rash gestures. In that year, however, the Supreme Court decided Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and accorded constitutional significance to the right to self-representation. There, the Court held that it was constitutional error to force a state-appointed public defender on an accused who wished to represent himself. Of course, the accused who is untrained in the law and represents himself still takes a grave risk, but the district judge who has to determine whether the waiver of the right to counsel is competently and intelligently made is now in a much more difficult position. An overprotective judge who refuses to allow a defendant to jeopardize his own defense may be reversed, see id., and a judge who does not make a copious inquiry into the thought In Faretta, the Court touched on the problem of the competing interests:

process of the accused (which may themselves be characterized as trial strategy) is subject to an appeal such as that presently before this court.

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason,...