U.S. v. Mills
| Decision Date | 06 February 1990 |
| Docket Number | D,No. 245,245 |
| Citation | 895 F.2d 897 |
| Parties | 29 Fed. R. Evid. Serv. 705 UNITED STATES of America, Appellee, v. Thomas Dean MILLS, Defendant-Appellant. ocket 88-1513. |
| Court | U.S. Court of Appeals — Second Circuit |
Peter Ginsberg, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D.N.Y., Matthew E. Fishbein, David C. James, Asst. U.S. Attys., Brooklyn, N.Y., on the brief), for appellee.
Gail Jacobs, Great Neck, N.Y., for defendant-appellant.
Before KEARSE and ALTIMARI, Circuit Judges, and CONNER, District Judge. *
Defendant Thomas Dean Mills appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Mark A. Costantino, Judge, convicting him on one count of possession of counterfeit obligations, in violation of 18 U.S.C. Secs. 472 and 3623 (1988), two counts of transfer of counterfeit obligations, in violation of 18 U.S.C. Secs. 473 and 3623 (1988), and one count of conspiracy to commit those offenses, in violation of 18 U.S.C. Secs. 371 and 3623 (1988). Mills was sentenced to three concurrent five-year prison terms on the conspiracy and transfer counts, a twelve-year prison term on the possession count, to be served consecutively to the five-year terms, and fines totaling $20,000, plus assessments. On appeal, he contends principally that the district court deprived him of his Sixth Amendment right to represent himself at trial. Though we find some aspects of the proceedings below troubling, we find no reversible error.
Since there is no challenge to the sufficiency of the proof, the government's trial evidence may be summarized briefly. In September 1987, Secret Service agents arrested John Kelly in possession of $5,400 in counterfeit $100 bills. Kelly agreed to cooperate with the agents. He produced an additional $183,000 in counterfeit bills and identified Mills as a confederate. Kelly allowed the agents to record a telephone conversation with Mills and met with Mills under surveillance. At the meeting, Kelly handed Mills a bag containing $25,000 in counterfeit bills. As Mills walked away with the bag, he was arrested. A search of his car turned up two additional counterfeit $100 bills, one of which bore Mills's palm print.
All of these counterfeit bills had been made using a unique process that, to the knowledge of the Secret Service's chief document analyst, had been used only once before: to make bills found in Mills's possession in 1982, leading to Mills's arrest and conviction of counterfeiting in that year.
In the present case, Mills was arraigned in September 1987, and R. James Bradford, a Legal Aid attorney, was appointed to represent him. For the next several months, Bradford filed pretrial motions, obtained discovery, and prepared for trial.
In February 1988, Mills moved both to represent himself and to have Bradford designated as standby counsel. The government joined in the latter request. The court granted Mills's motion to proceed pro se, but initially refused to appoint standby counsel.
THE COURT[:] Do you want a lawyer to sit next to you and tell you what to do. Why should he sit next to you and tell you what to do when you want to do it yourself? I may not let him sit next to you. If you're going to represent yourself do so wholly-and as an adage, as they taught in law school, a client who represents himself has a fool for a lawyer.
(Transcript ("Tr.") of February 22, 1988 Hearing at 3-4.) In response to Mills's contention that he was capable of representing himself at trial if Bradford sat by his side, the court stated
I'm not going to let him be there. I'll take my chances. If the higher court wants to say, after you are convicted, if you are convicted, then you are in good shape, because I don't think you should use the services of a lawyer as an advisory, where he's the one who has been designated to practice law. You could represent yourself if you want to, but there is no reason why anyone should sit down with you on a case.
(Id. at 5.)
Following this colloquy, the court initiated an inquiry into whether Mills was in fact sufficiently indigent to qualify for any legal assistance funded by the government. Finding no financial affidavit in the file, and hearing Mills's oral representation that he had reported income of $60,000 on his Eventually, after the Assistant United States Attorney ("AUSA") brought to the court's attention a financial affidavit filed by Mills and Mills represented that he currently earned $1,000 a month, the court assigned Mills a standby attorney. The court refused to assign Bradford, however. It stated, (April 25, 1988 Hearing Tr. at 3.) At a later hearing, the court confirmed that "Bradford has been taken off the case." (June 20, 1988 Hearing Tr. at 3.)
income tax return some years earlier, the court found that Mills was financially ineligible for appointed counsel. The court relieved Bradford from representing Mills and instructed Bradford not to speak with Mills or walk out of the courtroom with him. As the court subsequently described its admonition, "Last time I said I wouldn't let Mr. Bradford talk to him. He wanted to walk out with him. I said 'Mr. Bradford, you stay away from him. You are no longer his lawyer.' " (March 4, 1988 Hearing Tr. at 6.)
The standby counsel appointed for Mills was Charles Lavine. Lavine appeared with Mills at a hearing in September 1988 on a motion by Mills to suppress certain postindictment statements. When Lavine began to cross-examine the government's first witness at the hearing, the court inquired whether Mills had consented to Lavine's conducting the examination. Upon receiving an affirmative response, the court allowed Lavine to conduct the questioning. At the close of the evidence at that hearing, the court refused to permit Mills to make the legal argument:
THE COURT: ... Any statement to be made before the Court?
....
(September 12, 1988 Hearing Tr. at 51-52.)
After hearing argument by Lavine, the court denied the motion to suppress. Notwithstanding its successful defense of this motion, the government did not offer the postindictment statements at trial.
At the start of the trial, before the jury was brought in, the court addressed Mills as follows:
THE COURT: Before we bring in the jury for the purpose of opening statements, Mr. Mills, arise.
Do you understand at this point that you are waiving the right to have an attorney represent you, as far as asking questions, and any other part of the proceedings, and he's merely in court for you to consult and nothing else? You [sic ] will not be permitted to make any objections.
(September 13, 1988 Trial Tr. at 2.) Prior to the opening statements, the court advised the jury, inter alia, that "the defendant himself has waived the right of his attorney of asking any questions, and the attorney only is a consultant in this case at this time." (Id. at 17.)
Throughout the trial, Mills largely represented himself. He made his own opening statement and summation. He conducted the cross-examination of every government witness. He called three witnesses of his own and conducted the examination of each. Most of the objections to government examination, and the oral acquiescences to various proffers, according to the transcript, were voiced by Mills.
On occasion, the transcript indicates that an objection was voiced by Lavine. Further MR. LAVINE: Judge, may I put something on the record?
the record indicates that virtually all of Mills's legal arguments to the court outside the presence of the jury were made by Lavine. These included motions for limiting instructions to the jury, a motion for acquittal pursuant to Fed.R.Crim.P. 29, and arguments with respect to the proposed jury charge. Lavine repeatedly disclaimed, however, any creative role in Mills's defense. For example:
(September 15, 1988 Trial Tr. at 223-24, jury not present.) And on the following trial day, Lavine stated:
Earlier this morning the Court made some reference to my conduct on behalf of Mr. Mills. The only thing I want to bring to the Court's attention is this; that I am here, as I understand it, in the capacity of being his advisor when he has difficulty formulating questions. I understand it's my responsibility to try and straighten out his question and try to answer his questions with respect to the manner in which he examines the witnesses.
I have had absolutely nothing whatsoever to do with his strategy, his theories of defense or anything like that, your Honor.
I am merely here handling myself as I have described to the Court and I just hope the Court understands and appreciates that.
(September 19, 1988 Trial Tr. at 50-51, jury not present.)
The record indicates that at most, if not all, of the side-bar conferences held during trial, Lavine argued on behalf of Mills, and it appears that Mills was not present. Thus, the first request for a...
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