U.S. v. Singleton

Decision Date28 February 1997
Docket NumberNo. 95-5841,95-5841
Citation107 F.3d 1091
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Frederick Keith SINGLETON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: David Benjamin Smith, English & Smith, Alexandria, VA, for Defendant-Appellant. Robert Clifford Chesnut, Assistant United States Attorney, Office of the United States Attorney, Alexandria, VA, for Plaintiff-Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Office of the United States Attorney, Alexandria, VA, for Plaintiff-Appellee.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed in part and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MICHAEL and Judge MOTZ joined.

OPINION

NIEMEYER, Circuit Judge:

During the course of his criminal trial, Frederick Singleton sought to fire his court-appointed counsel because he was "not satisfied" with the way his counsel was cross-examining witnesses. When the court indicated the benefits of counsel, advising Singleton that he would be held strictly to the rules of court, Singleton sought to have counsel remain to assist him as a "legal adviser." After being told by the court that it would not permit such a hybrid situation, Singleton fired his counsel and conducted the remainder of his trial himself, consulting with his fired attorney during breaks. The jury convicted Singleton of 16 of the 20 counts charged.

With counsel appointed to represent him on appeal, Singleton maintains that he was denied both his Sixth Amendment right to the assistance of counsel and his implied Sixth Amendment right to self-representation, defined in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), as well as a new constitutional right to have advisory counsel when a defendant elects to represent himself. He also contends that the district court miscalculated his criminal history for sentencing purposes. Because we find no constitutional right to have advisory counsel during self-representation and no error by the district court in applying Singleton's acknowledged Sixth Amendment rights, we affirm his conviction. We remand for resentencing, however, to permit the court to resolve an open sentencing issue.

I

Singleton was indicted in 20 counts for a series of armed robberies from May 1994 to January 1995 in the greater Washington, D.C., area. The indictment identified four separate occasions on which Singleton allegedly carjacked vehicles which he then used as get-away cars in four separate armored truck robberies.

Following his arrest, Singleton filed an affidavit of indigency, and the court appointed Alan H. Yamamoto as his attorney. Yamamoto represented Singleton, without complaint, until the second day of Singleton's three-day trial.

Trial began on July 11, 1995, and on the first day, the government presented 17 witnesses, including many of the victims of the carjackings and the armored truck holdups. Yamamoto cross-examined 15 of these witnesses. On the second day of trial, the government continued with the presentation of witnesses. As Yamamoto prepared to cross-examine the second witness, Singleton notified the court, through Yamamoto, that he was not satisfied with Yamamoto's cross-examination of witnesses and that he wanted to participate personally in cross-examination. He also requested permission to participate in closing argument. The district court denied these requests. When Singleton interjected personally, searching for a way to participate in his representation based on his right to fire his counsel, the court ruled:

I will not let you participate in the trial. If you decide you want to discharge Mr. Yamamoto, I will deal with that when it occurs. I think you better think about that long and hard before you do it. If you do it, I will take that up when it happens.

After Singleton consulted briefly with Yamamoto, he announced to the court:

I would like to fire my attorney, your Honor. I am in no way satisfied with the way he is cross-examining. I am not satisfied with the way he has been cross-examining witnesses.

Agreeing to let Singleton fire his attorney but cautioning him about the consequences and repeating his earlier ruling against a hybrid participation in the trial, the court stated:

All right, I will allow you to discharge him.

Before you make that final decision, I want you to know that there are certain things that he can assist you, through the calling of witnesses, as with regard to them taking the witness stand, and you are going to be held to the same rules as he would be held. I am not going to let you use this as an opportunity to argue with witnesses.

* * * * * *

You will either take it alone or you are not going to take it alone. I will not allow some hybrid.

Arguing for an advisory role for his court-appointed attorney, Singleton then initiated the following dialogue:

Singleton: Could he assist me?

The Court: I will not permit him to assist you. If you want to go ahead alone, you can do it. It will not be half and half.

Singleton: Okay. Your Honor, what I am asking, he said he would let me use what witnesses he would call. He said he would assist me in that.

The Court: I will not let him assist you at all. You wanted an attorney. He has been appointed for you, is here, and he will represent you. I will not let you take part of it and him take part of it. You would be allowed a time to get him to advise you. You make that choice. It is up to you.

* * * * * *

Singleton: I want to have him as a legal adviser.

The Court: He will be your attorney or you will represent yourself. You make up your mind.

Singleton: May I have a minute to talk to him again?

The Court: Yes, take your time.

Following a private conversation between Singleton and Yamamoto, Singleton announced his decision to fire Yamamoto. The court excused Yamamoto as Singleton's court-appointed attorney and immediately resumed the trial, denying Singleton's request for a recess to familiarize himself with Yamamoto's files.

Singleton then proceeded to cross-examine the witness who had remained on the witness stand during the entire side bar discussion about Singleton's self-representation. Singleton thereafter cross-examined 15 government witnesses and put on 11 witnesses to testify on his own behalf. He also presented his own closing argument. Throughout the trial, Yamamoto voluntarily remained in the courtroom, and Singleton spoke with him during some of the recesses (although these conversations are not on the record).

The jury convicted Singleton of 16 counts and deadlocked on 4 others which the government then dismissed. At Singleton's request, the court appointed Yamamoto to represent him during the sentencing phase of the trial. After the court found that Singleton was a career offender, it expressed regret that he was "really a waste of a bright talent. His performance when he was on his own at trial was fine. He unfortunately has other problems that the court can't resolve for him." The court sentenced Singleton to 210 months on all but the firearms counts and a consecutive 780 months on the four firearms counts.

II

On appeal, Singleton argues first that the district court failed to ensure that his decision to waive counsel and to represent himself was made "knowingly and intelligently" because it failed to make a " 'searching or formal' inquiry into the defendant's understanding of his situation and his awareness of the dangers and disadvantages of self representation." Assuming arguendo that he effectively waived his right to counsel, Singleton next argues that we should order a new trial because the district court undermined his right of self-representation by refusing his request for a recess before beginning his representation of himself and by denying him Yamamoto's assistance in an advisory role. Finally, resting on a subtle interplay of his Sixth Amendment rights which emphasizes a right to the "assistance" of counsel, Singleton argues for a "constitutional right to conduct one's own defense" without having to give up his constitutional right to have the assistance of counsel in presenting that defense. He states, "[T]o force a defendant to completely waive his right to have the assistance of counsel for his defense as the price for exercising his right to represent himself plainly exacerbates the tension ... between the constitutional right of self-representation and the ... right to counsel." Singleton thus appears to contend that the Sixth Amendment provides an implied constitutional right to advisory counsel when a defendant chooses to represent himself.

Before addressing these questions, we find it useful to review briefly the well-established scope of the right to counsel granted by the Sixth Amendment and the implied right to self-representation defined in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Sixth Amendment provides in relevant part, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence." U.S. Const. amend. VI. That right is a fundamental procedural right of persons accused of crimes. Indeed, "[o]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have." Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 352, 102 L.Ed.2d 300 (1988) (quoting Walter V. Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956)). Because this right is crucial both to the individual defendant and to the integrity of our system of justice, the Sixth Amendment requires that counsel be provided for a defendant who cannot afford to retain private representation in any case in which he will be incarcerated if convicted. See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); see also Gideon v....

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