U.S. v. Padilla

• Decision Date: 21 May 1987
• Docket Number: No. 86-1295,86-1295
• Citation: 819 F.2d 952
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman PADILLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 952

819 F.2d 952

UNITED STATES of America, Plaintiff-Appellee, v. Herman PADILLA, Defendant-Appellant.

No. 86-1295.

United States Court of Appeals Tenth Circuit.

May 21, 1987.

David N. Williams, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., Larry Gomez, Asst. U.S. Atty., and Richard J. Smith, Asst. U.S. Atty., with him on briefs), Albuquerque, N.M., for plaintiff-appellee.

Kevin Michael Shea of Holme Roberts & Owen, Colorado Springs, Colo., for defendant-appellant.

Before LOGAN, SETH, and MOORE, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

Herman Padilla appeals his convictions of two counts of possession of firearms by a felon in violation of 18 U.S.C. App. Sec. 1202(a) and one count of possession of a firearm without a serial number in violation of 26 U.S.C. Secs. 5861(i) and 5871. Defendant, who appeared pro se at his bench trial, contends his convictions must be reversed because the record fails to establish that he knowingly and intelligently waived his right to be represented by counsel. We conclude that because the trial court failed to ensure defendant was aware of the dangers and disadvantages of self-representation, his waiver of counsel was invalid. We therefore reverse and remand for a new trial.

I.

On September 23, 1983, Herman Padilla was arrested in front of his residence at 999 Camino del Gusto, Santa Fe, New Mexico, by Santa Fe police who responded to a report of a man firing shots. After disarming defendant and taking him into custody, officers entered his apartment where they discovered and seized several weapons. A federal weapons investigation ensued, resulting in the return of an indictment against defendant on February 24, 1984. Federal authorities attempted to arrest Mr. Padilla for several months but were unable to locate him. Eventually, defendant was arrested by state authorities on an unrelated homicide charge in the fall of 1984. After his state trial, he was transferred to federal custody and arraigned on August 29, 1985.

On August 23, 1985, a federal public defender, Peter Schoenburg, was appointed to represent Mr. Padilla. Mr. Schoenburg filed several pretrial motions on defendant's behalf. However, on October 23, 1985, Mr. Schoenburg moved to withdraw as defendant's counsel contending there was "a profound and irreconcilable animosity" between them. The district court granted the motion and appointed Reber Boult to represent defendant.

Mr. Boult's participation was short-lived. Defendant retained counsel from the law firm of Toulouse, Toulouse and Garcia, who entered an appearance on November 4, 1985. On counsel's motion, defendant's trial was continued to December 1, 1985. Shortly thereafter, defendant terminated employment of his retained counsel, stating he was ineffective. On November 26, 1985, counsel moved to withdraw contending there had been a breakdown of the attorney-client relationship.

At a motions hearing on November 27, 1985, the district court granted counsel's motion to withdraw. To the court's inquiry regarding Mr. Padilla's proposed course of action for trial, he responded that he needed a continuance to find effective counsel or to conduct research prior to proceeding pro se. The court initially denied defendant's request, giving him the option of proceeding with current counsel or appearing pro se. When defendant refused to continue with current counsel, the court informed him he would have to proceed pro se. Thereafter, Mr. Padilla objected to appointment of any of his former counsel as standby counsel, and he waived his right to jury trial. The district court then continued defendant's trial for five days.

Mr. Padilla appeared pro se at his trial on December 6, 1985. On the same day, the court found him guilty on all three counts charged in the indictment. Thereafter, defendant retained Reber Boult to represent him. Mr. Padilla was sentenced on February 4, 1986, to a single sentence of two years on Counts I and II and to ten years on Count III, the sentences to run concurrently.

In this appeal, Mr. Padilla contends the record fails to establish that he knowingly and intelligently waived his right to be represented by counsel. He argues that because the record does not reflect he made "a clear and unequivocal declaration" of his desire to represent himself, but indicates he at best chose "the lesser of two perceived evils" offered by the district court, his decision to proceed pro se was not voluntary. Citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), Mr. Padilla further contends the district court did not meet its affirmative obligation to ensure that he was aware of the dangers and disadvantages of self-representation. Mr. Padilla's contention that his decision to proceed pro se was involuntary is not supported by the record. However, we agree that the district court did not ensure defendant was aware of the hazards of self-representation and therefore conclude his waiver of counsel was invalid.

A.

When a defendant is given a clear choice between waiver of counsel and another course of action, such as retaining present counsel, the choice is voluntary as long as it is not constitutionally offensive. Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976). A defendant forced to choose between incompetent or unprepared counsel and appearing pro se faces "a dilemma of constitutional magnitude." Id. The question of voluntariness therefore turns on whether defendant's objections to present counsel are such that he has a right to new counsel. "To warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982).

The record demonstrates Mr. Padilla did not establish a right to new counsel. At the November 27, 1985 motions hearing, in response to the court's inquiries regarding defendant's objections to the appointment of any of his three prior counsel as standby counsel, the following colloquy developed:

MR. PADILLA: All counsel, your Honor, have failed to address the issue that I have been after.

THE COURT: What issue is it that you have in mind?

MR. PADILLA: I want them to go all the way back to the initial arrest and they haven't done it.

THE COURT: To the initial arrest.

MR. PADILLA: To find certain defenses for my defense and they haven't done it. All of them have overlooked it, purposely overlooked it or whatever. I don't know if it's discrimination or what itself, but I can't seem to find anybody that will go back far enough.

The defendant apparently found his appointed and retained counsel ineffective because they would not structure a defense as he directed. ¹ However, his complaints about counsel do not constitute good cause for substitution of counsel. The Sixth Amendment provides no right to counsel blindly following a defendant's instructions. McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 152, 88 L.Ed.2d 125 (1985). Furthermore, there is no absolute right to counsel of one's choice. United States v. Peister, 631 F.2d 658, 661 (10th Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981). The record indicates the district court regarded defendant's request for substitution of counsel as a further attempt to delay the proceeding, and it supports the district court's view that defendant's objections to counsel were groundless. We conclude the choice given defendant between continuing with retained counsel or proceeding pro se was constitutionally permissible, and defendant's decision to represent himself was therefore voluntary.

B.

However, our inquiry does not end here. Even when a district court suspects manipulation on the part of a criminal defendant who seeks substitution of counsel, it must balance the need for efficient administration of the criminal justice system against the defendant's right to counsel. United States v. Gipson, 693 F.2d 109, 112 (10th Cir.1982), cert. denied, 459 U.S. 1216, 103 S.Ct. 1218, 75 L.Ed.2d 1455 (1983); United States v. Weninger, 624 F.2d 163, 166 (10th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). The Supreme Court has stated:

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, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."

Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (citations omitted) (emphasis added). While the record establishes defendant's decision to proceed pro se was voluntary, the question remains whether his choice was made knowingly and intelligently.

Faretta requires a showing on the record that the defendant who elects to conduct his own defense had some sense of the magnitude of the undertaking and the hazards inherent in self-representation when he made the election. Maynard, 545 F.2d at 279. See also United States v. Martin, 790 F.2d 1215, 1218 (5th Cir.1986); United States v. Mitchell, 788 F.2d 1232, 1235 (7th Cir.1986). The task of ensuring that defendant possesses the requisite understanding initially falls on the trial judge, who must bear in mind the strong presumption against waiver. Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948); Gipson, 693 F.2d at 111; Weninger, 624 F.2d at 164.

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