United States v. Dujanovic

• Decision Date: 15 October 1973
• Docket Number: No. 72-3007.,72-3007.
• Citation: 486 F.2d 182
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Ronald Paul DUJANOVIC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.2d 182 (1973)

The UNITED STATES of America, Plaintiff-Appellee, v. Ronald Paul DUJANOVIC, Defendant-Appellant.

No. 72-3007.

United States Court of Appeals, Ninth Circuit.

October 15, 1973.

COPYRIGHT MATERIAL OMITTED

Austin F. Rinella, Jr. (argued), Phoenix, Ariz., for defendant-appellant.

Joseph S. Jenckes, Asst. U. S. Atty. (appeared), William C. Smitherman, U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Before ELY and TRASK, Circuit Judges, and EAST,^* District Judge.

OPINION

EAST, District Judge:

The appellant was charged with the crime of Failing to Submit to Induction, in violation of Title 50, Appendix, U.S.C. § 462. He declined the appointment of counsel and proceeded pro se. He was convicted, sentenced to custody for study and report pursuant to Title 18 U.S.C. § 5010(e) and appeals. The appellant presents his assignments of error as three issues for review, namely:

(a) Dujanovic was not of sufficient presence of mind to either waive counsel or conduct his own defense, and the court did not adequately advise him of the consequences of his actions.

(b) Dujanovic presented a prima facie case as regards his ineligibility for induction at the time of his physical examination. As competent refutation of this case was never included in his file, his induction was invalid, and further, as competent refutation was never presented at trial, his conviction is invalid.

(c) Taken either individually or together, the circumstances surrounding Dujanovic's waiver of counsel, as well as his induction, constitute plain error within the meaning of Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.

The appellant timely appeared before the United States Magistrate whereat he was advised of his right to counsel, ordered to report the name and address of his attorney, to appear at a time fixed before the United States District Court for arraignment and released on his personal recognizance.

The appellant appeared without counsel before the District Court for arraignment on April 10, 1972, and upon the Clerk's inquiry and offer, he refused appointed counsel. Whereupon the court appointed the public defender to represent the appellant. A few hours later on the same day the court permitted the public defender to withdraw as counsel upon the representation made in the presence of the appellant that the appellant "doesn't want a lawyer," entered a plea of not guilty on behalf of the appellant and set the case for trial on the following May 23rd.

On the opening of the trial, the appellant "appeared in propria persona" with Mr. Karas of the public defender's office sitting in attendance by the direction of the court. The trial court was most patient with the appellant in advising him on procedure and suggestion that the appellant seek the advice of the public defender, which was declined.

Issue (a):

This issue vividly presents the whip saw position in which the trial court is placed when faced with a request for self-representation. It has been said "a defendant in a criminal case not only has a constitutional right to the assistance of counsel, he has a correlative constitutional right to refuse the advice or interference of counsel and to present his own case. A court has no more right to force an attorney on a defendant than it has to ignore the Sixth Amendment right to counsel," Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), cited in United States v. Price, 9 Cir., 474 F.2d 1223 at 1226. "The right to act pro se . . . is a right arising out of the Federal Constitution . . .," United States v. Pike, 439 F.2d 695 (9th Cir. 1971), and "This circuit has recognized a constitutional right to represent oneself, Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S. Ct. 593, 24 L.Ed.2d 514 (1970), and has recently stated that the complete denial of this right in a federal trial is, per se, reversible error." Meeks v. Craven, 482 F.2d 465 (9th Cir. 1973).

So, whether it be by the design or because of misguidance or naivete on the part of the accused, the trial court lays an appeal or a collateral attack by either a denial or the granting of the request.

It is no understatement to say that under the existing authorities in this circuit, the district judge is most likely to be placed in the predicament above described. It may be all due to too easily interpreted generalities or as stated by Judge Trask, concurring, in Meeks, supra, "the conflict is partially semantic."

In any event, the rule of the right of self-representation flows from the two founts of Adams v. United States, ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942), and Johnson v. Zerbst, 304 U.S. 458, at 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).¹ We read the rationale of these authorities to be: An accused has the constitutional right to be represented in a criminal case by competent counsel and the correlative constitutional right to dispense with counsel and assume the management and control of his defense to a criminal charge pro se.

This circuit has from case to case as noted above applied that rationale in a progressively narrowing context in order to meet exigencies of the given case. There is no reason to burden this writing with a recital of the specific facts and statement of the rule applied in each case, except to point out that the judicial route has been a torturous one and generally dictated by the facts and circumstances of the given case viewed retrospectively. Hodge v. United States, 414 F.2d 1040 (9th Cir. 1969), was the product of a rehearing en banc, reversing the original panel, and carried the dissent of three circuit judges. Price, supra, carries the dissent of the district judge and a five circuit judge dissent from the majority's rejection of an en banc consideration, Order, dated August 17, 1973. This dissent, however, does not attack the more flexible statement of the constitutional right of self-representation but is geared against the application thereof to the given facts and circumstances. Meeks carries the dissent of a circuit judge attacking the reiteration of the absolutism of a constitutional right to represent oneself.

The statements in Meeks, like those in Pike, were apropos for the exigencies of the given case but carry a rule, if literally taken in future application, beyond the concept of Adams and Johnson. The Ninth Circuit decisions speak subjectively of an accused having a constitutional right to have competent counsel, and also, a constitutional right to represent himself pro se; however, it is manifest that any such two constitutional rights cannot actively co-exist. The very thesis of Adams and Johnson is that the constitutional right of counsel, specifically expressed in the Sixth Amendment, may be waived by an accused, through an intelligent relinquishment or abandonment thereof, and only then may the correlative constitutional right of self-representation be asserted and brought into play.

We firmly believe that the statement and appraisal of the developed rule of this circuit in Price carries a flexibility more comparable with the spirit and rationale of Adams and Johnson. So, for the guidance of the district judges when faced with the demand on the part of an accused to proceed pro se, either in total management and control of his defense or in a lesser degree to actively participate along with counsel in the development of evidence and arguments to the court or jury, as well as our own in reaching a determination in this cause, we delineate our interpretation of the composite rule of Price as follows: An accused has the limited constitutional right upon demand to competently and intelligently waive his constitutional right to assistance of competent counsel and assume the management and control of his defense or participate therein under controlled circumstances as determined by the trial court.

The trial court when faced with a demand on the part of an accused to waive counsel and proceed pro se in his criminal trial is in reality faced with a two-pronged problem, this:

(a) ascertaining whether a demand to waive the constitutional right to the assistance of competent counsel is competently, voluntarily and intelligently made, and

(b) meeting its obligation to assure both the accused and the government a fair trial conducted in a judicious, orderly fashion which is always threatened and endangered with the gathering signs of disruptive actions or attitudes.

To date this circuit has established two limitations:

(1) the demand must be timely, Pike, supra, 439 F.2d at 695, and

(2) the demand must be unequivocal, Meeks, supra, at 467 of 482 F.2d.

The reasons for one charged with crime to waive the assistance of competent counsel in any given case range from the misguided or naive who just wants to tell the jury the truth, through the pressured one under the hardships of the accusation of crime and the sophisticated person enamored with his own ability, to the crafty courtroom experienced one who ruthlessly plays for the breaks. All eventually play the part of the proverbial fool. Accordingly, reasons for the waiver are not the concern of the trial court.

However, the American criminal jurisprudence is geared to the inviolate constitutional concept that an accused is entitled to competent counsel and legal representation, either of his own choice and arrangement or court appointed at government expense. So it is that the keystone determination or resolution of the two-pronged problem in the first instance is whether the request to waive the assistance of competent counsel is competently and intelligently made because with that determination the die is cast. Nothing whatsoever can thereafter occur during the pilotless journey which will evidence the state of mind of the accused or information at hand upon which he at that time intelligently waived his constitutional right of counsel.

We see no rational...