U.S. v. McKinley, 93-8132

• Decision Date: 27 June 1995
• Docket Number: No. 93-8132,93-8132
• Citation: 58 F.3d 1475
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. E. LaVay McKINLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1475

58 F.3d 1475

UNITED STATES of America, Plaintiff-Appellee, v. E. LaVay McKINLEY, Defendant-Appellant.

No. 93-8132.

United States Court of Appeals Tenth Circuit.

June 27, 1995.

David A. Kubichek, Asst. U.S. Atty. (David D. Freudenthal, U.S. Atty., and Patrick J. Crank, Asst. U.S. Atty., with him on the brief), Office of the U.S. Atty., Casper, WY, for plaintiff-appellee.

Clifford J. Barnard, Boulder, CO, for defendant-appellant.

Before HENRY, Circuit Judge, McKAY, Senior Circuit Judge, and KANE, ^* Senior District Judge.

HENRY, Circuit Judge.

E. LaVay McKinley appeals his convictions in federal court of mail fraud under 18 U.S.C. Sec. 1341; wire fraud under 18 U.S.C. Sec. 1343; money laundering under 18 U.S.C. Sec. 1956(a)(1)(A)(i); and conspiracy to commit mail fraud, wire fraud, and money laundering under 18 U.S.C. Sec. 371. Mr. McKinley contends that his convictions must be reversed because the district court denied his motion to represent himself in contravention of the rule announced by the Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We agree that Mr. McKinley was denied his Sixth Amendment right to self-representation, and therefore reverse and remand the case for a new trial. ¹

BACKGROUND

On December 4, 1992, a nine-count indictment was filed in the district court naming Mr. McKinley as a defendant. ² On December 9, 1992, Mr. McKinley filed a pro se motion to refuse court-appointed counsel, Mr. Pretty, and to retain counsel of his choice. Mr. McKinley's "counsel of choice" was a Mr. Thomas M. Dalby, "Constitutional Counsel and Agent," who was not an attorney. Mr. McKinley supplemented this motion with a notarized document purporting to grant a power of attorney to Mr. Dalby and a pro se brief in support of the motion, in which he argued that the right to counsel encompasses the right to be represented by someone other than a "so-called 'licensed attorney.' " See Rec. vol. I, doc. 30. Mr. McKinley's arraignment was held the same day. The district judge raised the issue of representation by Mr. Dalby and made clear that he would not allow Mr. McKinley to be represented by lay counsel. Mr. McKinley was less than cooperative at that hearing. ³

On January 6, 1993, Mr. McKinley filed a "Demand" for information, purporting to proceed "Propia [sic] Persona." In the demand, Mr. McKinley made several inquiries of the court, including whether the charges against him were civil or criminal in nature and, if criminal in nature, whether the court proceeded under "Common Law Jurisdiction" or under "the criminal aspects of Admiralty Jurisdiction." See Rec. vol. I, doc. 68. Also on that date, Mr. McKinley filed a "Demand for Assitance [sic] of Competent Counsel" of his choice and a "Notice of Rescindtion [sic] of All Signatures Including But Not Limited to the Request for Court Appointed Counsel." Rec. vol. I, docs. 69-70. On January 11, 1993, Mr. McKinley's court-appointed counsel, Mr. Pretty, filed a motion to withdraw due to his belief that Mr. McKinley's family had hired a private attorney for his defense. Rec. vol. I, doc. 73.

The district court held a hearing on January 24, 1993 to dispose of these motions. Mr. Pretty's motion to withdraw was denied by the district court because the private attorney apparently never entered an appearance DEFENDANT McKINLEY: Okay. Thank you. Your Honor, I am here under a special appearance, and let the record show that the accused is standing sui jurist [sic], and being denied his Sixth Amendment rights--

in the case. See Rec. vol. XLVII, at 13-14. During the hearing, the court gave Mr. McKinley the opportunity to orally argue his pro se motions, and the following exchange took place:

THE COURT: You are not sui jurist.

DEFENDANT McKINLEY: --and defending himself.

THE COURT: You are represented here by an attorney, you are not representing yourself.

DEFENDANT McKINLEY: I demand that right to represent myself.

THE COURT: Well, I am going to have Mr. Pretty continue to represent you, because I think that a man trying to represent himself is a lot like a man trying to take out his own appendix on the kitchen table, and I don't think you are competent to represent yourself, Mr. McKinley.

Rec. vol. XLVII, at 42-43.

On February 10, 1993, Mr. Pretty filed a "Motion to Have Defendant Represent Self." Through this motion Mr. McKinley argued that in light of the Supreme Court's decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), he was entitled to proceed pro se. He also requested that, pursuant to Faretta, the court hold a hearing with regard to the issue of self-representation.

On February 19, 1993, the district court entered an Order Denying Defendant's Motion to Represent Himself. The court's Order stated: "For several reasons, this Court is persuaded that defendant McKinley remains unaware of the dangers and disadvantages of self-representation." Rec. vol. II, doc. 115, at 2. The court first cited Mr. McKinley's "pro se-styled motions," id. at 3, stating that one "exhibited a fundamental misunderstanding of criminal jurisdiction and spent precious judicial resources on a patently frivolous inquiry." Id. at 2. ⁴ The court concluded:

The Court further observes that defendant McKinley's desire to proceed pro se is motivated as much by his desire to delay and disrupt the proceedings against him as it is his desire to properly defend himself. McKinley's pro se -styled motions thus far exhibit little understanding of the criminal law and severely prejudice the case against him. The Court must conclude that defendant McKinley's self-representation "will cause procedural confusion without advancing any significant strategic interest of the defendant." [Faretta,] 422 U.S. at 805 (Blackmun, J., dissenting).

The case at bar is an exceptionally complicated one. The government has accused McKinley of conspiring with other defendants in mail fraud, wire fraud, and money laundering. Many of the witnesses and much of the evidence must be obtained from outside this country. The complicated nature of the case combined with defendant McKinley's performances at the various pretrial hearings strongly suggest that the accused has little understanding of criminal law and therefore cannot competently represent himself.

Id. at 3.

The case proceeded to trial on June 30, 1993 in front of a different district judge. Mr. McKinley was represented by Mr. Pretty. ⁵

5] The jury returned a verdict finding Mr. McKinley guilty on all eight counts, and the district court sentenced him to 342 months imprisonment, $5,475,668.52 in restitution, and $400.00 in special assessments.

DISCUSSION

A criminal defendant is both constitutionally and statutorily entitled to waive his Sixth Amendment right to counsel and proceed pro se in a federal criminal trial. See Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541-42; 28 U.S.C. Sec. 1654 ("In all courts of the United States the parties may plead and conduct their own cases personally or by counsel...."). When a court improperly denies the right to self-representation, that denial is not subject to harmless-error analysis. Peters v. Gunn, 33 F.3d 1190, 1193 (9th Cir.1994) (citing Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991); McKaskle v. Wiggins, 465 U.S. 168, 177-78 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984)). In order to invoke the right, however, the defendant must "clearly and unequivocally" assert his intention to represent himself, United States v. Reddeck, 22 F.3d 1504, 1510 (10th Cir.1994), and this assertion must be timely, see United States v. Nunez, 877 F.2d 1475, 1478 (10th Cir.) (holding that the third day of trial was too late to invoke the right to self-representation), cert. denied, 493 U.S. 981, 110 S.Ct. 514, 107 L.Ed.2d 515 (1989).

The government first argues that Mr. McKinley never unequivocally asserted his right to represent himself. Specifically, the government argues that

the closest the Defendant came to an unequivocal demand to proceed pro se was the written motion filed on his behalf by his appointed counsel. But even that request was not unequivocal, because it sought the right for the Defendant to participate only as lead counsel, and it likewise requested the court to appoint counsel to assist him in his defense.

Brief of Appellee at 27-28. While it is certainly true that there is no constitutional right to a hybrid form of representation, see United States v. Bennett, 539 F.2d 45, 49 (10th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976), we do not agree with the government that this motion could be construed as a request for anything other than self-representation. First, the motion was entitled, "Motion to Have Defendant Represent Self." Rec. vol. II, doc. 113. The motion went on to assert that Mr. McKinley "fe[lt] that he [wa]s competent to represent himself" and that he "ha[d] the right to defend himself" under the Sixth Amendment and Faretta. Once in this motion Mr. McKinley stated that he had "the right to be lead counsel." Later in the motion he stated that if the district court determined at a hearing that he could represent himself, the court should also decide "whether or not he should have Court appointed counsel to assist him in his defense." ⁶ We do not construe either of these statements to infer that Mr. McKinley was really asking for some form of hybrid representation. We note that the district court also made no mistake as to the form of relief sought in the motion. See Order Denying Defendant's Motion to Represent Himself, Rec. vol. II, doc. 115. The government does not cite, nor do we find, any evidence in the record that Mr. McKinley later withdrew or undermined this request so as to make it equivocal. Further, this request for self-representation was made four and one-half months before trial. We therefore hold that the motion served to ...