United States v. Washington
| Decision Date | 09 January 2023 |
| Docket Number | 21-2740 |
| Parties | UNITED STATES OF AMERICA v. YASHEAM WASHINGTON, a/k/a Yasheem Washington, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No 2-19-cr-00291-001) District Judge: Honorable Harvey Bartle III
Christy Martin [ARGUED] Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant
Erica D. Kivitz Robert A. Zauzmer [ARGUED] Office of the United States Attorney
Counsel for Appellee
Before: CHAGARES, Chief Judge, SHWARTZ, and SCIRICA, Circuit Judges.
The case arises out of the trial, conviction, and sentencing of Yasheam Washington for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).[1] Washington appeals the District Court's finding that he knowingly and voluntarily waived his right to counsel, the District Court's order that he be physically restrained at trial, and several issues related to his sentencing. We find no error in the District Court's finding that Washington waived the right to counsel and hold that any error in ordering Washington restrained at trial was harmless. Because we agree with Washington and the Government that one of Washington's prior convictions is not a "crime of violence" under U.S.S.G. § 2K2.1, we affirm his conviction, vacate his sentence, and remand to the District Court for resentencing.
On the eve of Washington's first trial in this case, Washington sought to substitute his counsel. The District Court determined Washington's motion to substitute counsel was made in bad faith to delay trial and gave Washington the choice of continuing with his current counsel or representing himself. Washington participated in a Faretta colloquy with the District Court, but the District Court ordered Washington's attorney to continue to represent him because it determined Washington did not manifest a desire to represent himself-only to substitute his counsel. The District Court ordered Washington shackled throughout trial. The trial ended in a mistrial, after which the District Court dismissed Washington's counsel.
The District Court appointed the federal public defender to represent Washington at his second trial. On the day trial was scheduled to begin, Washington appeared in the courtroom in restraints. Before jury selection, the public defender moved for the removal of Washington's leg irons. The District Court denied the motion and stated:
It's my understanding that the Marshals have requested that the defendant be in . . . shackles for the purposes of security in the courtroom. I will, therefore, take the advice of the Marshals at this time. However, if there comes a time during the trial when the shackles are not needed, the Court will take that into consideration and have them removed.
Washington then requested to waive his right to counsel and represent himself. The District Court attempted to conduct a Faretta colloquy with Washington by informing him of the charge and possible punishments he faced as well as asking him our suggested questions for evaluating whether a defendant's waiver of counsel is knowing and voluntary. See United States v. Peppers, 302 F.3d 120, 136-37 (3d Cir. 2002) (listing questions). Washington refused to participate in the colloquy, either refusing to provide substantive answers to the District Court's questions or refusing to speak at all. Following the attempted colloquy, the District Court again asked Washington if he wished to represent himself, and Washington confirmed he did. The District Court found that Washington's waiver of counsel was knowing and voluntary, permitted Washington to represent himself, and appointed Washington's public defender as standby counsel.
Washington proceeded to represent himself at trial from behind the counsel table, with his restraints obscured behind table drapes, until he elected to testify. To ensure the jury would not see Washington's leg restraints, the District Court instructed the Marshals to place Washington in the witness box outside the presence of the jury. Washington objected and stated that he wished to walk in leg restraints to the witness box while the jury was present. The District Court denied Washington's request.
At the outset of his narrative testimony, Washington told the jury, [2] App. at 783. The District Court attempted-but failed-to interrupt and stop Washington before he revealed his shackles to the jury. The District Court then issued a cautionary instruction to the jury: App. at 783. There is no indication in the record the jury could see Washington's restraints aside from this instance.[3]
Washington was ultimately convicted. At sentencing, the District Court determined Washington had two prior convictions of a crime of violence under U.S.S.G. § 2K2.1, and calculated a base offense level of 24. Washington was sentenced to the statutory maximum sentence of 120 months imprisonment. This timely appeal followed.
Washington argues his waiver of his right to counsel was not knowing and intelligent.[5] Under the Sixth Amendment, a defendant has a right to counsel as well as a right to refuse counsel and proceed pro se. Faretta v. California, 422 U.S. 806, 819 (1975). In choosing self-representation, the defendant "relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel." Id. at 835. Accordingly, a defendant "should be made aware of the dangers and disadvantages of self-representation," id., such as "the technical problems he may encounter in acting as his own attorney" and "the risks he takes if his defense efforts are unsuccessful," United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982).
To satisfy itself that the defendant's waiver is knowing and intelligent, a district court must conduct a Faretta inquiry. United States v. Taylor, 21 F.4th 94, 100 (3d Cir. 2021) (citing Peppers, 302 F.3d at 129, 130-31; Buhl v. Cooksey, 233 F.3d 783, 789 (3d Cir. 2000)). We recommend district courts conduct the Faretta inquiry as an on-the-record colloquy following a set of model questions to ensure the defendant is adequately informed of the dangers and disadvantages of self-representation and understands those risks. Taylor, 21 F.4th at 102 (citing United States v. Jones, 452 F.3d 223, 229 (3d Cir. 2006); Peppers, 302 F.3d at 136-37). But we have also explained there is "no talismanic formula for the court's inquiry," Peppers, 302 F.3d at 135, and a court "may employ tools other than direct questioning if the circumstances call for them," Taylor, 21 F.4th at 103 (). At a minimum, the district court must assure itself the defendant understands "the nature of the charges, the statutory offenses included within them, and the range of allowable punishments thereunder." Taylor, 21 F.4th at 103 (quoting United States v. Booker, 684 F.3d 421, 425-26 (3d Cir. 2012)).
Here, the District Court conducted an on-the-record inquiry with Washington after he expressed his desire to represent himself. The District Court asked Washington the model questions we suggested in Peppers to ensure a defendant understands the risks of forgoing representation by counsel. The District Court advised Washington of the charge and range of punishments he faced, of the rules he must follow at trial, and that a trained attorney would provide more competent representation. Washington refused to provide substantive answers to the District Court's questions, but the record reveals Washington understood the District Court's warnings regarding the charge and possible punishments he faced, as well as the rules he must follow when representing himself. For example, after the District Court warned Washington that he was unfamiliar with the law, court procedures, and rules of evidence, Washington replied, "Well, I never answered to the question." App. at 471. Most importantly, after the District Court advised him of all the risks of self-representation, Washington reaffirmed that he wished to waive his right to counsel and represent himself. Furthermore, after waiving his right to counsel, Washington was assisted during trial by standby counsel.
The District Court's Faretta inquiry satisfied its responsibility to ensure Washington was advised of the risks of proceeding without counsel and his decision to waive counsel was knowing and intelligent. Despite Washington's refusal to participate in the District Court's attempted colloquy, the District Court's Faretta inquiry sufficed because Washington was warned of the risks of self-representation, demonstrated an understanding of the District Court's warnings, and stated a clear desire to represent himself.
We note the District Court's approach here is permissible but not required, and the outcome is dependent on the difficult circumstances faced by the District Court. We have explained that "whenever a defendant invokes his...
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