U.S. v. Miles

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Hartz
• Citation: U.S. v. Miles, 572 F.3d 832 (10th Cir. 2009)
• Decision Date: 13 July 2009
• Docket Number: No. 08-5128.,08-5128.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert S. MILES, Defendant-Appellant.

572 F.3d 832

UNITED STATES of America, Plaintiff-Appellee, v. Robert S. MILES, Defendant-Appellant.

No. 08-5128.

United States Court of Appeals, Tenth Circuit.

July 13, 2009.

Submitted on the briefs^*:

Julia L. O'Connell, Federal Public Defender, (Barry L. Derryberry, Research & Writing Specialist; Shannon McMurray, Assistant Federal Public Defender, with her on the brief), Office of the Federal Public Defender, Tulsa, OK, for Defendant-Appellant.

David E. O'Meilia, United States Attorney, (Kenneth P. Snoke, Assistant United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before KELLY, LUCERO, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

A jury in the United States District Court for the Northern District of Oklahoma convicted Robert Steve Miles on nine counts of willfully filing false income-tax returns. See 26 U.S.C. § 7206(1). The court sentenced him to 41 months' imprisonment. On appeal he contends that he was denied the right to self-representation during the period between the jury verdict and his sentencing hearing. He seeks reversal of his sentence and a remand for resentencing. We have jurisdiction under 28 U.S.C. § 1291 and affirm. The district court did not deny Mr. Miles's right to self-representation. It reasonably believed that he waived his right to self-representation after the jury was dismissed, and it allowed him to resume representing himself as soon as he reasserted his desire to proceed pro se at his sentencing hearing.

I. BACKGROUND

Mr. Miles represented himself at his five-day jury trial. Public defender Shannon McMurray acted as his standby counsel. The jury rendered its verdict on April 25, 2008. After dismissing the jury, the district court set a sentencing hearing for July 30 and announced that Mr. Miles would be remanded to the marshal's custody pending sentencing. McMurray interjected:

McMurray: Judge, we would—can I be heard on that? I don't know that the government—

Court: Well, he hasn't—I don't know that—you have standby counsel. Would you like to be heard or your counsel indicates—

Mr. Miles: I'll yield to counsel at this point.

Court: Are you now asking counsel to take over for you?

Mr. Miles: I think, at this point, yes.

R. Vol. III, Doc. 23 at 689 (emphasis added).

McMurray requested that Mr. Miles be allowed to remain free under the same conditions as his pretrial release. She responded to the court's questions about his flight risk and danger to the community. The prosecutor objected to his release. The court then expressed concerns that Mr. Miles did not consider himself to be a citizen of the United States and that he had filed pleadings stating that he did not recognize the court's authority. The following exchange ensued:

McMurray: I don't—my concern is he doesn't truly know what he filed. . . . Mr. Miles advises me that he's been making a record to try to get this case dismissed prior to a jury trial and/or finding at this point with the conviction. . . . I think Mr. Miles is telling me he—for purposes of sentencing and any future proceedings, he recognizes the jurisdiction of the Court I think is what he's just told me.

Court: Most of this trial you've spoken for yourself. Is that, what she tells me, true?

Mr. Miles: That's correct. I mean, if I can talk. I don't know with her being counsel if I can talk or not.

Id. at 698-99 (emphasis added). Mr. Miles proceeded to ask for leniency, and the court agreed to release him on the condition that he be placed on electronic monitoring for two weeks. At the end of the two weeks, the court would reconsider the conditions of release.

A week later, on May 2, 2008, Mr. Miles filed a pro se motion for a new trial. He contended (1) that he had been "denied Qualified Assistance of Counsel" because McMurray had no experience in criminal tax cases, id. Vol. I, Doc. 15 at 3; (2) that he had been charged with a nonexistent violation of the law; and (3) that the district court did not have jurisdiction over him. McMurray then filed a motion to withdraw as standby counsel because of the allegations against her in Mr. Miles's motion. On May 6 the court entered a minute order that stated: "Defendant's pro se Motion for New Trial is hereby stricken. Any further pleadings shall be filed through counsel of record." Id. at 10 (Docket Entry 93). The court also entered a minute order finding McMurray's motion moot. Although Mr. Miles did not file an objection to the order striking his motion or otherwise assert that he was representing himself, he filed another pro se motion on July 23. The motion again challenged the jurisdiction of the district court, repeating many of the arguments he had made in previous motions to dismiss.

At the sentencing hearing on July 30, McMurray announced that Mr. Miles wanted to represent himself with McMurray as standby counsel. She and the district court discussed what had happened at the previous hearing. As the court recalled, "[I]mmediately after the verdict came in, Mr. Miles requested that you represent him. In other words, he—it was my memory that he changed your status or requested the Court change your status from being stand-by counsel to being—to representing him." Id. Vol. III, Doc. 29 at 4. McMurray responded:

Your Honor, I certainly would defer to the Court's recollection and certainly the record's recollection. I thought I had reached out to the Court and to Mr. Miles. I could see that he was going into custody. I honestly did not know, as an officer, that I was his lawyer until he filed a motion for new trial calling into question some of my ethics and, you know, professionalism. I then filed a motion to withdraw and the Court struck the motion for new trial and then I was on notice that I was counsel of record.

I—this is a difficult situation. I feel like I have got some interest for myself that I need to look out for, but I also desperately want to help Mr. Miles, but we have got some conflicting interests here, as far as I can tell with my conversation with him previously and today. So I'm at the—you know, at the Court's . . .

Id. (emphasis added).

The court, McMurray, and Mr. Miles then engaged in the following discussion:

Court: Well, I'm not trying to do anything other than make the record clear, that up until—up until now, as far as I know, Mr. Miles has not requested you be relieved of your duties. He did request specifically that you represent him. Whether he's now requesting that you be stand-by counsel and—he's responsible for his defense. What I'm interested in knowing is, is he ready to change the status back to where it was before the verdict.

McMurray: It's my—yes. My conversations with Mr. Miles are that he would want to proceed pro se with me as stand-by. Certainly as stand-by, I'm prepared to talk with him and on behalf of him before the Court, but I just wanted the record to reflect on behalf of Mr. Miles that that would be his position today.

Court: That you now become stand-by counsel; is that correct?

McMurray: Yes, sir.

Court: Mr. Miles, is that your request?

Mr. Miles: I couldn't hear everything, Your Honor.

Court: Well, let me see if I can go over it again. Do you recall then, the day the verdict came in you requested that counsel—that counsel no longer be stand-by counsel, but that she represent you?

Mr. Miles: Yeah, at the heat of the moment it seemed to be the expedient thing to do.

Court: No, no, no, not at the heat of the moment.

Mr. Miles: Yes, I did.

Court: That's what you did?

Mr. Miles: Yeah.

Court: Okay. And now, today, you are requesting that she revert to stand-by counsel, as she was during the trial. Is that your request?

Mr. Miles: No, sir, it was not my understanding that she continued as—to my understanding, that was a—at one moment she represented me and then she went back to being stand-by.

Court: You never asked that she be relieved of that responsibility. It's not, I don't think, particularly material, other than it has been the Court's understanding that you haven't asked that that—to reform that request. It wasn't a request for the moment, it was a request that she represent you until you—

Mr. Miles: Since I haven't done anything in writing—it was my understanding that that was just for that— at that point in time.

Court: Well—or until you requested otherwise. It's not, I don't think, of any great importance, other than her status is now changing. For sure, today, you are asking to represent yourself; is that correct?

Mr. Miles: I am, but I'm handicapped because—I guess because of the confusion, we haven't had a chance to really verbalize over the last few weeks, which probably should have happened and we—and we haven't been able to communicate.

Id. at 4-7 (emphases added). During the remainder of the proceedings Mr. Miles acted pro se, with assistance from McMurray as standby counsel. Mr. Miles first noted the jurisdictional motion that he had filed, and the court denied it, saying that it had thought the pleading frivolous. The court then proceeded to hear from the parties concerning sentencing, and imposed a 41-month term of imprisonment.

II. DISCUSSION

On appeal Mr. Miles contends that the district court erred by denying him the right to self-representation during the period between dismissal of the jury and the sentencing hearing. Although he argues that the denial of his right to self-representation would require automatic reversal because "`its denial is not amenable to "harmless error" analysis,'" Aplt. Br. at 16 (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)), we need not decide that issue because, as we proceed to explain, there was no error.¹

A defendant in a federal criminal case has a statutory and constitutional right to self-representation. See 28 U.S.C. § 1654; Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant who chooses to represent himself is entitled to do so...