United States v. Mesquiti

• Decision Date: 12 April 2017
• Docket Number: No. 16-50034,16-50034
• Citation: 854 F.3d 267
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Edward MESQUITI, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

854 F.3d 267

UNITED STATES of America, Plaintiff–Appellee

v.Edward MESQUITI, Defendant–Appellant

No. 16-50034

United States Court of Appeals, Fifth Circuit.

FILED April 12, 2017

Joseph H. Gay, Jr., Mark Randolph Stelmach, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.

Bradford W. Bogan, Laura G. Greenberg, Assistant Federal Public Defenders, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for Defendant–Appellant.

Before WIENER, DENNIS, and HAYNES, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Edward Mesquiti was charged in an indictment with one count of bank robbery and aiding and abetting thereof in violation of 18 U.S.C. §§ 2 and 2113(a). Prior to trial, the district court granted Mesquiti's motion to dismiss his attorney. The case eventually proceeded to a jury trial, with Mesquiti representing himself throughout the trial. The jury ultimately found Mesquiti guilty, and he was sentenced to 151 months of imprisonment. Now represented by the Federal Public Defender, Mesquiti appeals his conviction, arguing that the district court deprived him of his constitutional right to counsel by allowing him to represent himself and that the court reversibly erred in denying a continuance.¹ For the following reasons, we affirm the district court's judgment.

I

Mesquiti is a follower of the "sovereign citizen" movement, which we have described as "a loose grouping of litigants, commentators, and tax protesters who often take the position that they are not subject to state or federal statutes and proceedings." United States v. Weast , 811 F.3d 743, 746 n.5 (5th Cir. 2016). An indictment was filed against Mesquiti on April 2, 2014, charging him with bank robbery and aiding and abetting of same, in violation of 18 U.S.C. §§ 2 and 2113(a), and he was appointed counsel the next day. On April 8, 2014, the court granted Mesquiti's motion to replace his appointed counsel with a retained attorney, Richard Langlois. On July 30, Langlois received a letter from Mesquiti, notifying him that his "representation of the ‘Corporate fiction/ens legis Debtor; Edward Mesquiti Jr.... is no longer needed" and asking him to notify the court of his removal as "legal representative."

The following day, Mesquiti filed with the court a pro se document titled "Notice and Declaration of Revocation of Power of Attorney and Notice and Declaration of Fraud and Notice to Cease and Desist," in which he said that "all power of attorney ... is wholly revoked, extinguished, canceled, [and] made null and void." Langlois thereafter moved to withdraw as counsel, and, on August 20, a hearing on the motion was held before a magistrate judge. During the hearing, the magistrate judge repeatedly asked Mesquiti if he wished to represent himself, but Mesquiti was unresponsive, instead making statements consistent with his sovereign citizen ideology and asserting that he did "not consent to these proceedings." The magistrate judge concluded that he could not say that Mesquiti wished to represent himself, and he therefore appointed the Federal Public Defender to represent Mesquiti after granting Langlois's motion to withdraw.

On February 5, 2015, the court conducted a docket call, during which Mesquiti was uncooperative. After Mesquiti's appointed counsel, Alfredo Villarreal, announced that he represented him, Mesquiti declared, "[H]e is not here for me" and asserted that the court had "no subject matter jurisdiction." Both Villarreal and the Government's attorney expressed doubts about Mesquiti's competence to stand trial, and the district court ordered a competency evaluation. The court subsequently received a thorough report by a licensed psychologist opining that Mesquiti was competent to stand trial, his adherence to the sovereign citizen ideology notwithstanding. The report also noted that, with respect to his need for representation, Mesquiti stated that "he is not trying to represent himself nor does he need a lawyer because the need for representation comes after the court establishes it has jurisdiction over him." In light of the report's conclusions, the court found that Mesquiti was competent to stand trial.

On June 17, 2015, the court held a pretrial hearing during which Villarreal announced that Mesquiti was ready for trial. After the court explained to Mesquiti that his attorney stated that he wanted to go to trial, Mesquiti said, "Your Honor, I haven't accepted Mr. Villarreal as my attorney. I don't consent to him being my attorney. I have never asked him to be my attorney." The court construed Mesquiti's statement as "a motion to withdraw Villarreal as [his] attorney" and stated, "You have a right to represent yourself. The motion is granted. Mr. Villarreal will be standby counsel." The district court then warned Mesquiti that proceeding pro se was not advisable. The court told Mesquiti that it was "generally a very bad idea to proceed pro se," that it was "always inadvisable" to do so, and that he "really need[ed] to have a lawyer." The district court told Mesquiti that he had been charged with a bank robbery, in violation of 18 U.S.C. § 2113, and informed him that, if found guilty, his sentencing guidelines range would be 121 to 151 months but that he would face up to twenty years of imprisonment. The court also warned Mesquiti that his jurisdictional arguments could not be continuously interjected into the trial, as they did not have "any legal merit." At the conclusion of the hearing, the court again advised Mesquiti:

Again, I am telling you, it is always a bad idea for defendants to represent themselves, and so I highly caution you, don't go this approach. One hundred twenty-one to 151 months is a long time in prison and potentially you could be facing up to 20 years. And so you know what happened that day. You know what the evidence is the government has against you. Your codefendant, I believe, is going to be testifying against you, so this is not a good posture you are in.

When asked if he had anything to say, Mesquiti replied, "I don't accept Mr. Villarreal as my lawyer and I don't consent to these proceedings, sir." The court relieved Villarreal from representing Mesquiti and instructed him to serve as standby counsel, informing Mesquiti that he could change his mind and ask that Villarreal take over as lead counsel.

On the first day of trial, July 7, 2015, before jury selection began, Mesquiti stated to the court that he had been "locked up in segregation" and that he had had "no access to courts, no way to get paper, no way to write." The Government's attorney responded that she had mailed copies of all of the Government's filings to Mesquiti at his place of confinement, and she pointed out that all of the Government's evidence was available in the courtroom if he wished to review it. The district court construed Mesquiti's argument as a motion to dismiss the indictment and denied that purported motion.

Later that day, during an afternoon break in the trial proceedings, Mesquiti made the following statement:

Your Honor, about my Sixth Amendment right to have my own witnesses, to have my own discovery evidence put in, I mean, I've been held under conditions that don't allow me to do any of that, to have—to subpoena witnesses, to have any kind of discovery added to this trial. I'm sure you can—I have the constitutional right to defend myself. And without my witnesses, I'm barred from putting on a defense.

In response, the district court stated that Mesquiti had known that his trial was scheduled for that day and that he had declined representation by an attorney and had insisted on representing himself. Mesquiti then asserted that he had been given discovery just forty-five minutes before the trial began, to which the district court responded that discovery had been provided to Mesquiti's counsel but he had refused to meet with his counsel.

At the close of the Government's case-in-chief, Mesquiti called no witnesses, and he rested without putting on any evidence. The jury found Mesquiti guilty, and the district court ultimately sentenced him to 151 months of imprisonment. Mesquiti appeals, challenging his conviction.

II

First, we discuss Mesquiti's contention that the district court deprived him of his constitutional right to counsel at a critical stage of the proceeding by allowing him to proceed pro se. Sixth Amendment challenges to the validity of a waiver of counsel are reviewed de novo. United States v. Jones , 421 F.3d 359, 363 (5th Cir. 2005). "The Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process." Iowa v. Tovar , 541 U.S. 77, 80–81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). To determine if the district court violated Mesquiti's right to counsel by dismissing counsel and relegating him to the status of standby counsel, we inquire whether Mesquiti properly waived his right to counsel. See, e.g., United States v. Virgil , 444 F.3d 447, 454 (5th Cir. 2006). In the course of this inquiry, we ask whether the defendant in fact relinquished his right to counsel and whether he did so knowingly and intelligently. See id. at 453.

A. Mesquiti Relinquished His Right to Counsel

"Where a fundamental constitutional right, such as the right to counsel, is concerned, courts indulge every reasonable presumption against waiver." United States v. Cano , 519 F.3d 512, 517 (5th Cir. 2008) (quoting Burton v. Collins , 937 F.2d 131, 133 (5th Cir. 1991) ). A defendant can waive his right to counsel implicitly, by his clear conduct, as well as by his express statement. See, e.g., United States v. Fields , 483 F.3d 313, 350 (5th Cir. 2007). As relevant here, because "indigent defendants have no right to appointed counsel of their choice," we have held that "a defendant's refusal without good cause to proceed with able appointed counsel constitutes a voluntary waiver of" the right to counsel. Id. (...