U.S. v. Springer, 94-10148

• Decision Date: 03 April 1995
• Docket Number: No. 94-10148,94-10148
• Citation: 51 F.3d 861
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rick Paul SPRINGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 861

51 F.3d 861

UNITED STATES of America, Plaintiff-Appellee, v. Rick Paul SPRINGER, Defendant-Appellant.

No. 94-10148.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 16, 1995.

Decided April 3, 1995.

John C. Lambrose, Deputy Federal Public Defender, Las Vegas, NV, for defendant-appellant.

John E. Ham and Jamon A. Jarvis, Asst. U.S. Attys., Las Vegas, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: NORRIS, WIGGINS, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Rick Paul Springer was convicted of failing to surrender for the service of his sentence for a previous crime. See 18 U.S.C. Sec. 3146(a)(2). He represented himself and now claims that he was not properly questioned about his waiver of counsel. He also asserts that the district court erred in its rulings regarding his defense, which was, in effect, that because of his opposition to nuclear bomb testing he could not report. We affirm.

BACKGROUND

Springer, who was opposed to nuclear bomb testing, felt called upon to interfere with a ceremony where former President Ronald Reagan was receiving a gift of a crystal eagle. Springer destroyed the eagle because he thought that would be an appropriate way to call attention to a nuclear bomb test scheduled for the next day. As a result, he was convicted of interference with the Secret Service and was sentenced to 120 days of incarceration for that offense. See 18 U.S.C. Sec. 3056(d). He was ordered to surrender on April 2, 1993, but that date was later extended to June 2, 1993.

Springer determined that he would not surrender because something more important held his attention. He was concerned that a moratorium on nuclear testing was about to end, so he decided that jail could not be permitted to interfere with his desire to engage in protests against that possibility. He also saw his action, his refusal to surrender, as a form of civil resistance. By June 27, 1993, he discovered that the President had extended the moratorium. He still did not surrender. As he said, he wanted his surrender to be a media event, and he had not quite figured out how to finance or accomplish that. He was finally arrested on August 9, 1993, and this prosecution for failure to surrender ensued. See 18 U.S.C. Sec. 3146(a)(2).

Before his first trial, the district court held a pretrial conference at which Springer expressed his desire to represent himself. The district court carefully canvassed him on that desire and accepted his request after first determining that the waiver was knowing and intelligent. The court also appointed an attorney to serve as advisory standby counsel for Springer.

The first trial ended in a mistrial on October 27, 1993. His retrial commenced before a different judge on January 18, 1994. At that time the district court did not make a further inquiry into Springer's waiver of counsel, but Springer expressly stated that he was representing himself, and the same advisory standby counsel was also present. This time Springer was convicted and sentenced. This appeal followed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 18 U.S.C. Sec. 1291.

Whether a defendant knowingly, voluntarily and intelligently waived his Sixth Amendment right to counsel is a mixed question of law and fact that we review de novo. See United States v. Robinson, 913 F.2d 712, 714 (9th Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1006, 112 L.Ed.2d 1089 (1991). "A district court's application of the Speedy Trial Act is reviewed de novo." United States v. Clymer, 25 F.3d 824, 827 n. 1 (9th Cir.1994) (citation omitted). A district court's decision to bar a necessity defense is also reviewed de novo. See United States v. Schoon, 971 F.2d 193, 195 (9th Cir.1991), cert. denied, 504 U.S. 990, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992).

The district court's decision on whether to admit evidence is reviewed for abuse of discretion. See United States v. Brooke, 4 F.3d 1480, 1487 (9th Cir.1993). Finally, a district court's response to a jury's request for additional instructions is reviewed for abuse of discretion. See United States v. Tham, 665 F.2d 855, 858 (9th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 466 (1982).

DISCUSSION

Springer raises a number of issues. He claims that he did not properly waive counsel at his retrial, that the retrial did not commence in a timely fashion, and that his defenses, which centered on his need to protest, were improperly denied to him. ¹ Although these claims are essentially foreclosed by our precedents, we have carefully considered each of them.

A. Waiver of Counsel.

There is no doubt that Springer's waiver of counsel before the initial trial was knowing, voluntary, and intelligent, nor is there any doubt that he was properly canvassed about that waiver. He does not argue to the contrary. His claim is that he should have been recanvassed just before the commencement of the retrial, even though he never hinted that he wished to reconsider his waiver, and, in fact, expressly stated that he would be representing himself. We disagree.

Had Springer sought to withdraw his waiver before his retrial, there can be little doubt that he should have been permitted to do so. See Menefield v. Borg, 881 F.2d 696, 699-701 (9th Cir.1989) (waiver withdrawn for new trial hearing); United States v. Kennard, 799 F.2d 556, 557 (9th Cir.1986) (waiver withdrawn before retrial). That is not this case. Here, Springer asserted the right to self-representation and was granted that right; he never wavered in his resolve. As we said in Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir.1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970):

While it is true that the Sixth Amendment right to counsel applies at all critical stages of the prosecution, including the sentencing stage, it does not follow that once the assistance of counsel in court has been competently waived, a new waiver must be obtained at every subsequent court appearance by the defendant. A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings.

We reached a similar conclusion in White v. United States, 354 F.2d 22 (9th Cir.1965). There counsel was waived, a plea was taken White gave no indication at the hearing at which the sentences were reimposed that he did not understand that he had a right to the assistance of counsel at that hearing, or that he wished to withdraw his waiver previously given. Under these circumstances the court was entitled to assume that the waiver was still in effect, and was not required to again advise White of his right to counsel.

sentence was imposed, and the sentence was then modified. We granted a writ of habeas corpus and ordered resentencing. At the new sentencing hearing, White continued to represent himself and was not requestioned by the district court about his waiver. He appealed and we said:

Id. at 23.

We see no cogent reason to apply a different rule here. The retrial was obviously a continuation of the criminal prosecution, and the waiver was obviously intended to stand absent an attempt to withdraw it. The matter of representation was in Springer's hands alone. After his earnest and insistent request, he had been granted the right to represent himself. If he found himself wavering in his resolve so to do, he or his advisory counsel could have so informed the court. He did not waiver. His waiver of counsel stood. His banausic post hoc claim that he should have been requestioned is, therefore, rejected.

B. Speedy Trial Act.

Springer's retrial began eighty-two days after the mistrial was declared in his first trial. The Speedy Trial Act requires that a retrial commence within seventy days. 18 U.S.C. Sec. 3161(e). However, it also allows the exclusion of "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. Sec. 3161(h)(1)(F). Here the government did file a pretrial motion on November 30, 1993, which was ruled upon on January 12, 1994. That forty-three-day period was properly excluded, although it should be noted that an exclusion of only thirteen days would be just as effective for Speedy Trial Act purposes. Springer claims that the motion was frivolous and, therefore, that no exclusion of time was proper. We disagree with this inventive assertion.

The statute does not contain a requirement that the merits of a motion be assessed before a delay is permitted. In fact, we have eschewed requests that we assess the reasonableness of a delay that results from the making of a pretrial motion. See Clymer, 25 F.3d at 830. We now decline to further complicate an already complicated area of the law by requiring a district court to assess the merits of a motion before it determines that an exclusion of time will be permitted. That circular process, which would apply to motions from either party, would cause untold confusion and open new vistas of manipulation unrelated to the merits of cases. In so holding, we do not mean to agree with Springer that the government's motion in limine was frivolous. In fact, it was not. However, there is no real need to decide that issue at all.

Springer claims that our decision in Clymer, id., means that motions in limine cannot rise to the level of excludable time because trial could start without a decision upon them. That is a misreading of Clymer. All we decided there was that when the district court put...