U.S. v. Wadsworth

• Decision Date: 22 October 1987
• Docket Number: 86-3195,Nos. 86-3194,s. 86-3194
• Citation: 830 F.2d 1500
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Delbert W. WADSWORTH and Kurt W. Wadsworth, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1500

830 F.2d 1500

UNITED STATES of America, Plaintiff-Appellee, v. Delbert W. WADSWORTH and Kurt W. Wadsworth, Defendants-Appellants.

Nos. 86-3194, 86-3195.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 8, 1987.

Decided Oct. 22, 1987.

Daniel L. Hawkley and Kim Lindquist, Boise, Idaho, for plaintiff-appellee.

Bryan K. Murray, Randall D. Schulthies, Pocatello, Idaho, for defendants-appellants.

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

Before FARRIS, ALARCON and WIGGINS, Circuit Judges.

ALARCON, Circuit Judge:

Delbert and Kurt Wadsworth appeal from the judgment of conviction for rescue of seized property in violation of 26 U.S.C. Sec. 7212(b) (1982). Each appellant contends that he was forced to go to trial, over his objections, without representation or time to prepare a defense. In viewing Delbert Wadsworth's appeal, we must decide whether the failure of the court to inquire if the accused had the funds to hire an attorney, or, wished to waive the assistance of an attorney at trial, constituted a violation of his sixth amendment right to the representation of counsel. We conclude that the court's failure to make such inquiry was prejudicial error and reverse.

We reverse the judgment against Kurt Wadsworth because the district court abused its discretion in (1) dismissing appointed counsel, (2) denying the motion for a substitution of counsel, and (3) denying the motion for a continuance to prepare for trial.

In Part One of this opinion we discuss the issues and the facts pertinent thereto regarding Delbert Wadsworth's appeal. In Part Two we consider the relevant facts and analyze Kurt Wadsworth's claim of constitutional deprivation.

PART ONE

Delbert Wadsworth argues that the record is silent concerning whether he waived his right to representation by counsel. He also asserts that the record must reflect that the court personally conducted an examination of an unrepresented defendant to determine whether he can afford counsel and if he has made a knowing and intelligent decision to waive representation. We agree.

Delbert Wadsworth appeared at his arraignment without counsel. The magistrate admonished him as follows:

The Court: You have the right to be represented by an attorney at all stages of the proceedings. In the event you cannot afford to hire your attorney, the Court will appoint one for you.

The magistrate did not make any inquiry to determine whether the defendant was financially able to afford counsel. Following the court's advice concerning the right to counsel, the record reflects the following colloquy:

The Court: I noticed that you are not appearing with an attorney today, do you desire to have the court appoint an attorney for you?

Mr. Wadsworth: No.

The Court: Okay. You're going to hire your own attorney?

Mr. Wadsworth: I don't know at this point.

The Court: Okay. But it is your desire to proceed with the rest of the hearing today without an attorney here, is that correct?

Mr. Wadsworth: Yes.

It is clear from this dialogue that Delbert did not expressly waive his right to representation by counsel at trial.

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court ruled: "We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Id. at 37, 92 S.Ct. at 2012 (footnote omitted).

The Criminal Justice Act of 1964 (the Act), 18 U.S.C. Sec. 3006A (1982 & Supp III 1985), sets forth the representation rights of persons "who are financially unable to obtain counsel during their defense in the federal criminal process." United States v. Dangdee, 608 F.2d 807, 809 (9th Cir.1979). The Act provides in pertinent part:

In every criminal case in which the defendant is charged with a felony or a misdemeanor ..., the United States magistrate or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives representation by counsel, the United States magistrate or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him.

18 U.S.C. Sec. 3006A(b).

The failure of the magistrate to inquire whether the defendant was financially able to afford counsel was a direct violation of the explicit requirements of section 3006A(b). Furthermore, because the defendant did not waive his right to representation by counsel, the magistrate was required to appoint counsel for him, notwithstanding his response that he did not know if he was going to hire an attorney, if, upon proper inquiry, it appeared that he could not afford counsel.

The record is silent as to whether Delbert Wadsworth appeared in the district court prior to the first day of trial. At oral argument, we were advised by counsel that he was present at the hearing conducted the day before trial on Kurt Wadsworth's motion for a substitution of counsel. The reporter's transcript reveals that the court did not address any remarks to Delbert Wadsworth nor did he or any attorney speak on his behalf.

The first reference to Delbert Wadsworth's presence in the district court appears in the reporter's transcript of the first day of trial. At the commencement of the trial in this matter, the court made the following statement to the jury:

I want the record to show that both attorneys for the Wadsworths advised the Court that they were unable to proceed because they did not get the information and cooperation from their clients. And the Court has determined that there has been a deliberate attempt to delay this matter; and there was an earlier cancellation of the trial date in order to give the Wadsworths more time, and the Court has determined that in the interests of justice this matter should proceed today.

The court's statement to the jury that Delbert Wadsworth had an attorney who advised the court that he was unable to proceed because he could not get information or cooperation from his client is unsupported by the record. The records of the district court reveal that no lawyer ever appeared as the attorney of record for Delbert Wadsworth. Furthermore, the record does not reflect that an attorney was relieved by the court of his duty to represent Delbert Wadsworth. If Delbert Wadsworth had an attorney who was relieved by the court of his professional responsibility to his client, no record was made for appellate review. Without such record, we cannot determine whether the court's decision to relieve counsel for Delbert Wadsworth, if it occurred, was consistent with the accused's right to be represented by counsel at trial. The government has the duty to provide a defendant with a record of sufficient completeness so that his claim of constitutional error may be reviewed on appeal. See Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962).

There is no evidence in this record that the district court informed Delbert of his right to court appointed counsel or made any inquiry into Delbert's financial ability to retain an attorney. The failure of the district court to inquire of an unrepresented defendant whether he is financially unable to afford counsel is a violation of the duties imposed upon a trial court under section 3006A(b). Before proceeding with a criminal prosecution against an unrepresented defendant who has not expressly waived counsel "[t]he district court must first make adequate inquiry into the need for the appointment of counsel, with appropriate findings." United States v. Moore, 671 F.2d 139, 141 (5th Cir.1982), cert. denied, 464 U.S. 859, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983). The failure to make such a determination in this matter resulted in the deprivation of Delbert Wadsworth's right to counsel at trial. It is undisputed that he did not have the funds to hire an attorney. Two days after the trial in this matter, the district court appointed counsel on appeal because of the defendant's indigency.

Delbert Wadsworth's further contention that we must reverse his conviction if the record does not affirmatively show that he knowingly and intelligently waived his right to counsel has long been recognized by the Supreme Court and the law of this circuit.

An indigent criminal defendant has an absolute right under the sixth amendment to be represented by counsel or to represent himself if he so chooses. Faretta v. California, 422 U.S. 806, 807, 818, 95 S.Ct. 2525, 2527, 2532, 45 L.Ed.2d 562 (1975); United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987). A defendant choosing to represent himself, however, must knowingly and intelligently waive his right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; United States v. Rylander, 714 F.2d 996, 1005 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984). To establish a waiver of counsel, the record must show that an accused was offered counsel but intelligently and understandingly rejected the offer. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962) ("[p]resuming waiver from a silent record is impermissible"); see also United States v. Kennard, 799 F.2d 556, 557 (9th Cir.1986) (per curiam) (explicit waiver required for a second trial although defendant waived his right to counsel at his first trial).

We also have held that a defendant can knowingly and intelligently waive his right to counsel only after he is aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation. Rylander, 714 F.2d at 1005 (quoting United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982)). To make a proper record for appellate review on the question...