United States v. Schaefer

• Decision Date: 16 September 2021
• Docket Number: No. 19-30266,19-30266
• Citation: 13 F.4th 875
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason Paul SCHAEFER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

13 F.4th 875

UNITED STATES of America, Plaintiff-Appellee,

v.Jason Paul SCHAEFER, Defendant-Appellant.

No. 19-30266

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 13, 2021 Seattle, Washington

Filed September 16, 2021

Susan Russell (argued), Assistant Federal Public Defender, Office of the Federal Public Defender, Portland, Oregon; for Defendant-Appellant.

Amy E. Potter (argued), Deputy Criminal Chief, Criminal Appeals Section; Scott Erik Asphaug, Acting United States Attorney; United States Attorney's Office, Eugene, Oregon; for Plaintiff-Appellee.

Before: David M. Ebel,^* Carlos T. Bea, and Lawrence VanDyke, Circuit Judges.

BEA, Circuit Judge:

The Sixth Amendment guarantees a criminal defendant the right to counsel. This familiar privilege is so culturally well-known that we readily understand its advantageous purpose. But its converse is less well-known: the Sixth Amendment also guarantees the criminal defendant the right to proceed without counsel. This privilege is equally as important. Indeed, "[t]he Supreme Court has stated that, even if ‘the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant,’ it merits the same vigilant protection as other constitutional rights." United States v. Gerritsen , 571 F.3d 1001, 1008 (9th Cir. 2009) (quoting McKaskle v. Wiggins , 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ). We should be careful, then, not to disregard this constitutional right because "[w]hen the administration of the criminal law ... is hedged about as it is by the Constitutional safeguards for the protection of an accused, to deny him in the exercise of his free choice the right to dispense with some of these safeguards ... is to imprison a man in his privileges and call it the Constitution." Faretta v. California , 422 U.S. 806, 815, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (citation omitted). Today, we are tasked with examining the imperative right to proceed with and without counsel.

This challenging task began with a menacing act. In October 2017, Jason Schaefer ignited a homemade explosive device when officers attempted to arrest him. The Government charged him with a variety of crimes, including assault on a federal officer and possession of a "destructive device." Schaefer then spent the next eighteen months with a rotating cast of counsel, firing one after the other. About a month before trial, however, Schaefer reached a different decision. He decided that he was better off on his own, without a lawyer to represent him, and thus sought to proceed pro se. After holding a hearing pursuant to Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the district court acquiesced and ruled that Schaefer unequivocally, knowingly, and intelligently waived his right to counsel. All was well again—for the moment. Although trial commenced with Schaefer representing himself, he abruptly changed his mind once the jury was empaneled and attempted to reinvoke his right to counsel. Finding that Schaefer was attempting to manipulate the legal proceedings by his demand for counsel to represent him, the district court denied the request but continued the appointment of advisory counsel to Schaefer, so to provide him with the availability of legal advice. A jury ultimately convicted him of all counts. We now examine, among other issues, whether Schaefer's constitutional right to self-representation and right to counsel were violated.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Schaefer's prior state prosecution

Schaefer had a long history of mental illness and had been hospitalized prior to the instant prosecution. In April 2017, for example, the local police received a tip that Schaefer "had poured something outside of [his] garage that was a chemical that caused concern to the apartment complex."¹ Upon arriving at the scene, Schaefer "became confrontational with law enforcement and was angry and threatened to kill the apartment complex manager." Officers arrested him and placed him on a mental health hold. Officers quickly discovered that he was wearing a "body armor vest" and, because he had a prior felony conviction in New York, charged him with being a Felon in Possession of Body Armor under Oregon state law. He was convicted and sentenced to probation.

B. Schaefer detonates an explosion, initiating federal prosecution

Later that same year, in September 2017, the FBI received a tip that Schaefer had purchased a variety of unusual chemicals. FBI Special Agent Mutchler reviewed the list of chemicals and recognized that several of them could be combined to manufacture an improvised explosive device.

On October 11, 2017, the FBI obtained a search warrant for Schaefer's home and storage unit. SA Mutchler arranged to have Schaefer attend a probation meeting that morning away from Schaefer's home. SA Mutchler attended the meeting and told Schaefer about the search warrant. Schaefer then left, and the officers who had been surveilling him were unable to follow him. By the time Schaefer arrived at his home, officers were already executing the search warrant. Officers attempted to arrest Schaefer at that time, but he refused to comply. Schaefer yelled at the officers—"Oh, great. Now we're all going to die."—and sped away again.

Officers chased after Schaefer and finally caught up to him once he became stuck in traffic. Officers approached and ordered him out of his vehicle. In response, Schaefer grabbed a cigarette package that contained triacetone triperoxide ("TATP") and threatened the officers: "I'll do it. I'll do it. I'll blow us all up." Schaefer then lit the cigarette package, causing an explosion.²

As a result of the blast, Schaefer lost three fingers, and one of the officers suffered from a concussion and temporary deafness.

C. Schaefer requests self-representation during pretrial proceedings

Schaefer was taken to a hospital in police custody. On October 24, 2017, he was indicted by a grand jury for Assault on a Federal Officer (two counts), and Using an Explosive to Commit a Federal Felony.³ During the pre-trial proceedings that followed the district court appointed—and Schaefer terminated—several attorneys. The district court appointed the first attorney to represent him at the initial appearance on October 19, 2017. After the first attorney moved to withdraw in January 2018, the district court granted the request and appointed the second attorney to represent him. The district court also appointed another attorney (the third) as co-counsel on May 22, 2018. However, discord followed soon thereafter.

On May 29, 2018, the second and third attorneys moved to withdraw based on an "unreconcilable [sic] conflict of interest."⁴ The district court held a hearing the next day, ultimately granting the motion and appointing the fourth attorney to represent him.

In June 2018, the fourth attorney moved for a competency evaluation of Schaefer. The district court held a hearing, reviewed the competency evaluation in the expert report, and concluded that Schaefer was competent to stand trial. The fourth attorney then moved to withdraw because he disagreed with certain "frivolous" motions that Schaefer had wanted to file and because Schaefer had filed a complaint against him with the State Bar. Schaefer informed the district court that he was "tempted to proceed pro se" because he had "conducted an extensive amount of research" for the case. The district court cautioned him, however, that proceeding pro se was not in his best interest. Although the district court denied the fourth attorney's motion to withdraw, it appointed the fifth attorney, Lisa Ludwig, as co-counsel.

But in November 2018, the fourth attorney again moved to withdraw. The district court granted the motion this time and elevated Ms. Ludwig to counsel representing Schaefer. Ms. Ludwig informed the district court that she was "happy to continue as Mr. Schaefer's attorney," but that she was "not going to be able to competently be prepared to take over this whole case and be ready to go to trial" before the set trial date in January 2019. Schaefer objected to a continuance, insisting that the district court maintain the existing trial schedule. In response, the district court explained the consequences of this decision:

So what that means is that Ms. Ludwig will be trying the case ill prepared. And you will have to accept that and whatever result comes of that.

And what you cannot do is come back and say, "I want to challenge"—if you get convicted—"I want to challenge the conviction because my lawyer wasn't prepared." Because what's going to happen is I'm going to make a very clear record that says Ms. Ludwig put on the record she is not ready to try this case. You are forcing her to proceed ill prepared, and you will live with whatever the consequences of her being ill prepared are.

So just think about that for a minute. ... And if you want your trial on the date that it's scheduled, you get it, with that agreement, with that understanding.

Schaefer responded, "I'm not going to waive my speedy trial right in lieu of my right to competent and effective assistance of counsel." The district court ultimately kept the existing trial date, but appointed Tiffany Harris (the sixth attorney) to serve as Ms. Ludwig's co-counsel.

In December 2018, the Government filed a motion for a second competency evaluation because Schaefer had filed "unusual" motions and appeared "unhinged." The district court ordered the competency evaluation and continued the trial date, which had been set for the following month. On April 2, 2019, the district court held a hearing and determined—for the second time—that Schaefer was competent to stand trial. During the same hearing, the district court also addressed Ms. Ludwig and Ms. Harris's motion to withdraw on the ground that Schaefer had "wishe[d] to discharge current counsel [that represented him] and seek the...