United States v. Luscombe

• Decision Date: 21 February 2020
• Docket Number: No. 18-3355,18-3355
• Citation: 950 F.3d 1021
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ryan Scott LUSCOMBE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

950 F.3d 1021

UNITED STATES of America, Plaintiff-Appellee,

v.Ryan Scott LUSCOMBE, Defendant-Appellant.

No. 18-3355

United States Court of Appeals, Eighth Circuit.

Submitted: November 14, 2019

Filed: February 21, 2020

Daniel P. Goldberg, Research & Writing Atty., Office of the Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, on the brief), for appellant.

Brian P. Casey, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., on the brief), for appellee.

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.

SHEPHERD, Circuit Judge.

Following a jury trial, Ryan Luscombe was found guilty of three counts of wire fraud, in violation of 18 U.S.C. § 1343 ; two counts of mail fraud, in violation of 18 U.S.C. § 1341 ; and one count of money laundering, in violation of 18 U.S.C. § 1957. He was sentenced to 180 months imprisonment. On appeal, Luscombe argues that the district court¹ erred by delaying its decision to revoke his pro se status until the third day of trial. Alternatively, he argues that it erred by terminating his self-representation. Luscombe also appeals his sentence, asserting that the district court procedurally erred and imposed a substantively unreasonable sentence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Ryan Luscombe operated an investment business called Five Star Trading Group, Inc. (Five Star). Between January 2013 and March 2016, he ran a scheme to defraud Five Star's clients. Specifically, Luscombe lied to his clients about his past success in investing in order to obtain their money, and he then used the majority of those funds—$483,482.83—for his own personal expenditures, including the purchase of a 2010 BMW 750i for $27,999. In 2016, Luscombe falsely informed his clients that all of the money that they invested in Five Star was lost in trading and that Five Star would have to close down. In reality, Luscombe invested less than half of his clients' money, and the net trading loss that he incurred was approximately $4,600. Based on this conduct, Luscombe was charged with three counts of wire fraud, two counts of mail fraud, and one count of money laundering.

At Luscombe's arraignment, the magistrate judge appointed Assistant Federal Public Defender Ronna Holloman-Hughes to represent Luscombe. Luscombe wrote to the court multiple times to request the appointment of new counsel. Although the court initially denied the request, it later held a hearing on the issue. The magistrate judge determined that it would not appoint new counsel and informed Luscombe that, should he choose to proceed to trial without Ms. Holloman-Hughes, he would need to either retain his own attorney or represent himself at trial. Luscombe was released pending trial on a personal recognizance bond with conditions of release.

Luscombe later asserted that he wanted to represent himself at trial, and the magistrate judge conducted a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). At the hearing, Luscombe was apprised of the difficulties of proceeding to trial without an attorney and was cautioned against such a course of action. Luscombe acknowledged that he understood these challenges and was "fully prepared to accept the consequences if [he] fail[ed]." He was also questioned about his knowledge of the charges, the rules of evidence and procedure, and the penalties that he faced if convicted. Based on his responses, the magistrate judge concluded that Luscombe knowingly and voluntarily waived his right to counsel and permitted him to represent himself at trial. The magistrate judge also offered to appoint a standby attorney, but Luscombe declined this offer. Before trial, however, the court appointed Ms. Holloman-Hughes as Luscombe's standby attorney.

At trial, the district court had to repeatedly interrupt Luscombe and admonish him to follow the rules, to speak clearly for the court reporter and the jury, and to refrain from talking over witnesses. For example, the district court, either sua sponte or in response to an objection from the government, stopped Luscombe ten times during his opening statement for making irrelevant or inappropriate comments, for delving into argument rather than summarizing the evidence that he expected to present, to remind him to speak clearly, and to inform him about the amount of time that he had used. Similarly, the court frequently stopped and admonished Luscombe throughout the trial because of the manner in which he cross examined government witnesses. Luscombe often interrupted and argued with witnesses, asked confusing and compound questions, asked questions that called for inadmissible testimony, tried to interject his own testimony, spoke unclearly and in a manner that was difficult for the jury and court reporter to understand, and took too much time in examining witnesses. During the course of the trial, he also sent intimidating emails to one potential government witness, the government's case agent, and his standby attorney. This prompted the magistrate judge to revisit his bail conditions, revoke his personal recognizance bond, and order Luscombe to be held in custody. On the third day of trial, and after repeatedly warning Luscombe to follow court rules, the district court terminated his self-representation and directed Ms. Holloman-Hughes to take over Luscombe's defense and complete the trial.

Luscombe was found guilty of all six counts. At sentencing, the district court calculated Luscombe's Guidelines range to be 97 to 121 months imprisonment. The court varied upwards and sentenced Luscombe to 180 months imprisonment. On direct appeal, Luscombe raises two issues concerning his self-representation at trial and appeals his sentence.

II.

Luscombe asserts that the district court erred in the way it handled his self-representation. He advances two alternative arguments in support of this assertion. Although Luscombe does not appear to challenge the validity of his initial waiver of counsel, he argues that the district court erroneously waited until the third day of trial to terminate his self-representation. Specifically, he contends that, based on his conduct, it should have been clear to the district court on the first day of trial that he was being ineffective in representing himself. He claims that his actions should have suggested to the district court that he was incompetent to proceed as his own counsel and that the district court should have sua sponte ordered a competency evaluation. By waiting, he argues that the district court violated his constitutional rights to effective counsel, to a fair trial, and due process. He also suggests that the district court's frequent interruptions undermined his ability to mount an effective defense.

Alternatively, Luscombe asserts that the district court erred by terminating his self-representation. He essentially argues that his conduct, while perhaps poor lawyering and annoying, did not amount to "seriously obstructive conduct" that warranted the drastic sanction of revoking his pro se status. Luscombe suggests that this action violated the Sixth Amendment and requires us to reverse and remand for a new trial.

A.

First, we consider Luscombe's argument that the district court erroneously waited until the third day of trial to terminate his self-representation. Ordinarily, we review de novo the district court's decision to terminate the defendant's right to represent himself at trial, see United States v. Mabie, 663 F.3d 322, 328 (8th Cir. 2011), and its decision not to hold a competency hearing or order a competency evaluation for an abuse of discretion. United States v. Turner, 644 F.3d 713, 723 (8th Cir. 2011). The government, however, urges us to apply plain error review to these issues because Luscombe failed to raise them at trial or to otherwise make contemporaneous objections.² See Fed. R. Crim. P. 52(b) ; United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). But it is unclear whether a defendant must formally object to the district court's decision to continue to allow him to represent himself at trial, or to the district court's failure to sua sponte order a competency hearing, in order to preserve these issues for our review. See, e.g., United States v. Stanley, 739 F.3d 633, 645 (11th Cir. 2014) ("The appropriate standard of review ... thus presents an unsettled question."); United States v. Coleman, 871 F.3d 470, 474 (6th Cir. 2017). We need not address these issues, however, because we can affirm on each claim, respectively, under the ordinary de novo and abuse of discretion standards. See Stanley, 739 F.3d at 645 (declining to reach the issue because defendant's arguments failed under both de novo and plain error standards).

The Sixth Amendment guarantees a defendant the right to represent himself at trial. Faretta, 422 U.S. at 818-821, 95 S.Ct. 2525. "Even though a defendant may conduct his own defense to his detriment by relinquishing the benefits associated with the right to counsel, his choice must be honored." Turner, 644 F.3d at 720. Before a defendant may be allowed to exercise his right to self-representation, however, he must knowingly and voluntarily relinquish his right to counsel. Id. at 720-21. "The adequacy of the waiver depends on the particular facts and circumstances of each case, including the background, experience, and conduct of the accused." Id. at 721. Before allowing him to waive his right to counsel, the district court must question the defendant about his knowledge of the right and adequately warn him of the dangers involved in proceeding pro se. Shafer v. Bowersox, 329 F.3d 637, 647-48 (8th Cir. 2003). It must also be satisfied that the defendant is competent to waive the right and stand trial. Turner, 644 F.3d at 721.

The record shows that Luscombe knowingly and voluntarily relinquished his right to counsel "after being repeatedly warned of the dangers and...