U.S. v. Proctor

• Decision Date: 29 January 1999
• Docket Number: No. 98-1186,98-1186
• Citation: U.S. v. Proctor, 166 F.3d 396 (1st Cir. 1999)
• Parties: UNITED STATES of America, Appellee, v. Todd L. PROCTOR, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 396

166 F.3d 396

UNITED STATES of America, Appellee, v. Todd L. PROCTOR, Defendant, Appellant.

No. 98-1186.

United States Court of Appeals First Circuit.

Jan. 29, 1999.

Kern Cleven, by Appointment of the Court, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, was on brief for appellee.

Before SELYA, Circuit Judge, COFFIN and LEVIN H. CAMPBELL, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Appellant Todd Proctor claims that the district court unconstitutionally required him to represent himself at trial despite his timely request for a lawyer. Because the record does not permit us to say with the required assurance that Proctor waived his Sixth Amendment right to be represented by counsel at trial, we conclude that his conviction must be vacated.

I. Background

The details of Proctor's alleged crime have no bearing on this appeal, and we therefore report only that he was convicted on two charges related to marijuana trafficking. The appeal centers on Proctor's decisions concerning his defense and whether the district court properly calibrated the balance between his right to counsel and his reciprocal right to self-representation. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We begin with a review of the facts relevant to that issue.

Shortly after Proctor's arrest in January 1997, Charles W. Hodsdon II was appointed to represent him. Five weeks later, Hodsdon filed a motion to withdraw "due to an attorney/client breakdown and at the request of the Defendant." The motion was granted on March 19, 1997, and the next day, Jeffrey M. Silverstein was appointed substitute counsel. A superseding indictment was filed on April 17, adding appellant's brother, Clifford Proctor, as a coconspirator and codefendant. ¹ On May 9, acting on Proctor's behalf, attorney Silverstein filed a motion for a bill of particulars and three motions to suppress evidence. Silverstein advised the court that Proctor also wished to join three motions filed by Clifford. On May 12, Proctor filed a motion to dismiss, apparently pro se.

On May 20, 1997, Proctor filed two handwritten letters with the court announcing his decision to dismiss Silverstein and asserting "I will now be going pro-se with this case." Proctor accused Silverstein of various failings, including a lack of diligence, collusion with the prosecutor, conflict of interest and misrepresentations. Silverstein filed a motion the same day seeking to withdraw as counsel, reporting "a breakdown of communications between the defendant and counsel."

On May 28, a hearing was held on the joint motion that Silverstein be permitted to withdraw. After granting it, the court asked Proctor if he wished to proceed pro se, and he replied that he did. The court then engaged in a colloquy with Proctor to ascertain whether he understood the charges, his right to counsel, and the ramifications of proceeding without counsel, and also asked whether Proctor was aware of the rules governing criminal trials and was familiar with the Sentencing Guidelines. Despite Proctor's affirmative responses, the court attempted to dissuade him from self-representation:

Now, I want to advise you, Mr. Proctor, that in my opinion a trained lawyer would defend you far better than you could defend yourself. I think it's unwise of you to try to represent yourself. You are not familiar with the law; you are not familiar with court procedure; and I would strongly urge you not to try to represent yourself, but you have a perfect right to do so if that is your wish.

If your decision is entirely voluntary, which I assume it is, I will grant you the right to represent yourself if that is your wish. Is that your wish?

Proctor replied that he wanted to proceed pro se. The court then found that "the Defendant knowingly and voluntarily waives his right to counsel" and offered Proctor standby counsel. Proctor accepted standby assistance, and attorney Wayne Foote was appointed for that purpose. ²

On June 12, Proctor filed a motion for access to a copier and a typewriter. The motion was denied. He submitted two other documents in early July, one questioning the competence of appointed counsel, though not identifying any attorney by name, and both claiming fabrication of a search warrant affidavit. Neither paper requested action by the court.

The events at the heart of this appeal occurred shortly thereafter, at a motions hearing on July 16, 1997. Proctor appeared pro se, with attorney Foote as standby counsel. Foote reported to the court that he had not yet consulted with Proctor, although he had received a letter from the defendant that day about a procedural matter and was working on a response. Clifford and his counsel also were at the hearing.

In response to questions from the court, Proctor said that he wished to withdraw the motion for a bill of particulars that attorney Silverstein had filed, observing that he was most concerned about his pro se motion to dismiss. He also stated, again in response to court inquiry, that he wanted a hearing on two of the three suppression motions filed by Silverstein. ³

A full-day evidentiary hearing was then held, beginning with a suppression motion filed by Clifford in which Proctor had not joined. The court denied that motion, and Clifford subsequently withdrew his other motions, at which point Clifford and his attorney were excused. The court then heard testimony on Proctor's third motion to suppress, which related to evidence seized from a package in Arizona. Following direct questioning of an Arizona detective by the prosecutor and lengthy cross-examination by Proctor, the court denied the motion.

The court then announced its understanding that the only remaining matter was Proctor's motion to dismiss the indictment based on a discovery violation. Proctor said he wished to be heard on that motion, and the court granted a brief recess for him to prepare. When the hearing resumed, Proctor told the court that he had been "a little confused" just before the recess, and that he also wanted to be heard on what is labeled in his brief as his "first" suppression motion, involving the seizure of evidence from his mother's house in Maine. The judge indicated his belief that that motion had been withdrawn earlier in the hearing, but then asked Proctor if he had evidence to offer on the motion. The colloquy continued as follows:

DEFENDANT: Yeah, and I'm not sure what you mean by--I have printed evidence.

COURT: Well, I'm not going to delay these proceedings any longer than they've been delayed already. If you have any evidence you want to put on with regard to that motion, I'd be glad to accept it into evidence, but I distinctly heard you say, and I think it was because the motion evidently was filed by your previous lawyer, you said you weren't interested in that and you were just interested in the third motion to suppress plus the motion to dismiss. So, I'm not going back and replow that field. But if you have any other evidence that you want to put on or enter with regard to that motion, you can go ahead and do it, and I'll receive it into evidence in this proceeding.

DEFENDANT: Well, as it relates to--I'm not sure exactly how to go about this. In support of this motion, the defendant alleges that the affidavit submitted in support of search--of search warrant contains material, false allegations and/or was prepared in reckless disregard for the truth, and that probable cause is lacking in the absence of those such portions of the affidavit.

I have lots of different things in the affidavit that are false, wrong, whatever, and is this the right forum to discuss that or what?

COURT: What affidavit are you talking about and what motion are you talking about?

DEFENDANT: I'm on Defendant's First Motion to Suppress, U.S. versus Todd Proctor.

COURT: The one filed by Mr. Silverstein?

DEFENDANT: Correct.

COURT: All right. And what's your question?

DEFENDANT: Well, how do I go about the evidence as far as the reckless disregard for the truth?

COURT: Well, Mr. Proctor, we had a discussion some time ago when you wanted to be relieved of your lawyer or lawyers, and I indicated to you that I was not going to be able to give you legal advice. I did appoint for you a standby counsel who's been patiently standing by, but you haven't seen fit to use, and I suggest that you ask him.

DEFENDANT: Okay. Well, I'm going to need to review some things on that.

The court then stated that it would consider the motion withdrawn unless Proctor filed further pleadings raising it. At that point, standby counsel Foote noted that Proctor had, in fact, reserved the suppression motion at issue. The court, clearly becoming frustrated by the confusion, declined to hear the motion that day, but again said that Proctor could file a motion and request a hearing at a later date. The judge then reprimanded Foote for waiting until the end of the day to advise the court of his view of the status of the motions. Foote responded that he had just discovered the problem, and he suggested that the confusion could have arisen because two of the suppression motions concerned the same search, and Proctor had withdrawn one of them. The court then continued:

Well, I'll say it once more, and that's the last time I'm going to say it. As far as I'm concerned, that motion has been withdrawn. If you want to have a hearing on the issues in that motion, refile it, and I will revisit it to see whether or not I'm going to open up these proceedings again before we get to a hearing on what we're all after, I hope at some point, is a trial.

Now, do you want to be heard on the motion to dismiss?

Proctor replied that he did, adding, "but I'm not sure if I'm ready at this point." The hearing concluded with the following exchange:

COURT: Well, I gave you a recess to get ready and I guess at some point, Mr. Proctor,...