United States v. Archambault

• Decision Date: 29 June 2018
• Docket Number: 16-3791-cr
• Parties: UNITED STATES OF AMERICA, Appellee, v. PAUL F. ARCHAMBAULT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

UNITED STATES OF AMERICA, Appellee, v. PAUL F. ARCHAMBAULT, Defendant-Appellant.

16-3791-cr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

June 29, 2018

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29^th day of June, two thousand eighteen.

Present: PIERRE N. LEVAL, GUIDO CALABRESI, DEBRA ANN LIVINGSTON, Circuit Judges,

For Defendant-Appellant:

ROBERT A. CULP, Garrison, NY.

For Appellee:

MARY C. BAUMGARTEN, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney, United States Attorney's Office, Buffalo, NY.

Appeal from a judgment of the United States District Court for the Western District of New York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Paul Archambault ("Archambault") appeals from an October 14, 2016 judgment of the United States District Court for the Western District of New York, following a jury trial finding him guilty of one count of production of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e), two counts of receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1), and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). The district court sentenced Archambault to 360 months on the first three counts and 240 months on the fourth count, with all sentences to run concurrently. Archambault challenges the district court's judgment and sentence on multiple constitutional and statutory grounds. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

A. Waiver of Counsel

Archambault first argues that the district court erred in concluding that he knowingly and voluntarily waived his Sixth Amendment right to counsel. The Sixth Amendment guarantees a defendant the right to forego counsel and defend himself personally. Faretta v. California, 422 U.S. 806, 819 (1975). "Because a defendant who decides to act pro se relinquishes traditional benefits associated with formal legal representation," however, "the district court must ensure that the accused made [his] decision 'knowingly and intelligently.'" Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998) (quoting Faretta, 422 U.S. at 835). "Although there is no talismanic procedure to determine a valid waiver, the district court should engage the defendant in anon-the-record discussion to ensure that [he] fully understands the ramifications of [his] decision." Id. (internal citation omitted). "The court should consider whether the defendant understood that [he] had a choice between proceeding pro se and with assigned counsel, whether [he] understood the advantages of having one trained in the law to represent [him], and whether the defendant had the capacity to make an intelligent choice." Id. (internal quotation marks omitted) (quoting United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995)). "In other words, the district court must be satisfied that the defendant was aware of the risks associated with self-representation and that [his] choice was made 'with eyes open.'" Id. (quoting Faretta, 422 U.S. at 835). We "will affirm a district court's conclusion that a defendant knowingly and voluntarily waived his constitutional rights if any reasonable view of the evidence supports it." United States v. Burrous, 147 F.3d 111, 116 (2d Cir. 1998) (quoting United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993)).

Here, the district court engaged in an approximately twenty-minute on-the-record colloquy with Archambault to ensure that his waiver was knowing and intelligent. Archambault expressly informed the district court that he was aware that: (1) although he had no professional legal background, the district court would "apply the rules the same as if [he] had an attorney," Gov. App'x at 8; (2) the rules of evidence were "complex," and that "there will be some issues on the rules of evidence that [Archambault] may not be aware of," id. at 7; and (3) should he be convicted, he faced a minimum imprisonment term of 25 years and a maximum imprisonment term of 50 years on the first count of his indictment alone. The district court expressed its view that Archambault was not making a wise decision, and Archambault insisted that no one was "forcing" him to represent himself, id at 10. Based on this record, it would be reasonable toconclude that Archambault knowingly and voluntarily waived his Sixth Amendment right to counsel. See Burrous, 147 F.3d at 116.

Archambault contends that his waiver was invalid because the district court failed to explain to him the "critical role of standby counsel." Reply Br. for Def.-Appellant at 3. But the appointment of standby counsel is discretionary; a defendant has no Sixth Amendment right to standby counsel after he knowingly and voluntarily waives his right to an attorney. See United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997). The district court thus had no obligation to inform Archambault about standby counsel before concluding that Archambault knowingly and voluntarily waived his Sixth Amendment rights. See Morrison, 153 F.3d at 55; Schmidt, 105 F.3d at 90. We therefore affirm the district court's conclusion that Archambault knowingly and voluntarily waived his Sixth Amendment right to counsel.

B. Ineffective Assistance of Standby Counsel

Archambault also claims that his court-appointed standby counsel was constitutionally ineffective, and that he was therefore denied the assistance of standby counsel. As noted above, however, a defendant has no constitutional right to standby counsel after he waives his Sixth Amendment rights. And "[a]bsent a constitutional right to standby counsel, a defendant generally cannot prove standby counsel was ineffective." Schmidt, 105 F.3d at 90. To be sure, our Circuit has left open the possibility that a defendant could make an "ineffective assistance of standby counsel" claim when his standby counsel "held that title in name only and, in fact, acted as the defendant's lawyer throughout the proceedings." Id. But that is not Archambault's case: Archambault made the opening and closing remarks himself and personally cross-examined thegovernment's witnesses. Thus, because Archambault "proceeded pro se, [he] may not now assign blame for [his] conviction to standby counsel." Id.

C. Federal Rule of Evidence 414

Next, Archambault argues that the district court erred in granting the government's motion in limine to allow Archambault's 15-year-old victim from 2009 to testify at trial, and to admit a redacted certified judgment of Archambault's 2009 conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Archambault insists that the district court erred in admitting this evidence under Federal Rule of Evidence 414, because the victim was not "below the age of 14" at the time of his offense, see Fed. R. Evid. 414(d)(1).

Archambault did not raise this objection below, and we therefore review the district court's ruling for plain error. See Fed. R. Crim. P. 52(b); United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 96 (2d Cir. 2014). "A finding of 'plain error' requires that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013) (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).

Federal Rule of Evidence 414(a) states that "[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant." Rule 414 thus specifically "allows for the admission of prior convictions or prior acts of child molestation to prove propensity." United States v. Davis, 624 F.3d 508, 512 (2d Cir. 2010). Rule 414(d)(2) defines "child molestation" as "a crime under federal law or under state law . . .involving," inter alia, "any conduct prohibited by 18 U.S.C. chapter 110." Archambault does not dispute that 18 U.S.C. § 2252A(a)(5)(B), the crime of his prior conviction, is "conduct prohibited by 18 U.S.C. chapter 110." However, he notes that under Rule 414(d)(1), "a 'child' means a person below the age of 14." Accordingly, Archambault argues that his 2009 conviction cannot constitute "child molestation" under Rule 414(a), because his victim was not "below the age of 14."

We need not decide whether Rule 414(d)(1)'s definition of "child" is relevant to Rule 414(d)(2)'s definition of "child molestation." Even assuming arguendo that it is—and, hence, the district court erred in admitting evidence concerning Archambault's 2009 conviction pursuant to Rule 414—we are not convinced that such an error is "clear or obvious, rather than subject to reasonable dispute." Alvarado, 720 F.3d at 157 (quoting Marcus, 560 U.S. at 262 (2010)). "For an error to be plain, it must, 'at a...