United States v. Watts, CRIMINAL NO. 1:15CR65-LG-RHW

• Decision Date: 15 December 2015
• Docket Number: CRIMINAL NO. 1:15CR65-LG-RHW
• Parties: UNITED STATES OF AMERICA v. MIKAL C. WATTS, ET AL.
• Court: U.S. District Court — Southern District of Mississippi

UNITED STATES OF AMERICA v. MIKAL C. WATTS, ET AL.

CRIMINAL NO. 1:15CR65-LG-RHW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

December 15, 2015

ORDER DENYING MIKAL WATTS' MOTION TO PERMIT HIS HYBRID DEFENSE

BEFORE THE COURT is Defendant Mikal Watts' [104] Motion to Permit His Hybrid Defense. The Government has filed an Opposition to the Motion and Watts has filed a Reply. The Court, having reviewed the parties' submissions and relevant law, declines to exercise its discretion to permit Watts a hybrid defense.

BACKGROUND

This multi defendant criminal action arises out of allegations of fraud in connection with the claims process related to the BP Deepwater Horizon Oil Spill. The Government alleges that Defendant Mikal Watts (hereinafter "Watts") aided by other Defendants engaged in a fraudulent scheme "to personally enrich or attempt to enrich themselves." (Indictment 16, ECF No. 4).

Specifically, the Government states that as part of a conspiracy, "the defendants, without contacting the individuals, would obtain names, addresses, dates of birth, and social security numbers of individuals from any source available to create 'clients' for anticipated litigation as a result of the" Oil Spill. (Id. at 15). It further states that "the defendants would submit names of individuals, in excess of 40,000, as plaintiffs represented by" Watts in relation to litigation stemming from the Oil Spill, and ultimately, the multi district federal case that resulted from the Oil Spill. (Id.). The Government also contends that as part of the conspiracy, Watts submitted false claims to the Gulf Coast Claims Facility.

Watts has retained Robert McDuff, an experienced and highly regarded federal criminal defense from the Jackson, Mississippi, area. However, Watts himself is a licensed attorney and seeks to "present his defense at trial with two lawyers . . . - both his chosen lawyer and himself." (Mot. 1, ECF No. 104).

DISCUSSION

"[A] defendant does not have the right to a hybrid representation, in which he conducts a portion of the trial and counsel conducts the balance." United States v. Norris, 780 F.2d 1207, 1211 (5th Cir. 1986); see also United States v. Long, 597 F.3d 720, 723 (5th Cir. 2010) ("There is no constitutional right to hybrid representations whereby the defendant and his attorney act as co-counsel."); Neal v. State of Tex., 870 F.2d 312, 315-16 (5th Cir. 1989). Whether to allow such representation is "left to the sound discretion of the district court." See Norris, 780 F.2d at 1211; see also United States v. Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989) (while hybrid representation is not foreclosed, "it is to be employed sparingly and, as a rule, is available only in the district court's discretion").

The Fifth Circuit has recognized that "[t]he trial judge is in a position to evaluate whether the accused is competent to cross-examine a witness, whether thetrial will be unduly extended if this is permitted, and whether a conflict will likely develop between the accused and counsel in front of the jury." Norris, 780 F.2d at 1211. Although the Court accepts Watts' representations that he is a competent lawyer, and that he and Mr. McDuff are in agreement about the hybrid representation in an attempt to avoid any conflict during trial, the Court is of the opinion that other considerations merit denying Watts' Motion in the exercise of the Court's discretion.

"While the allowance of hybrid representation might be an appropriate exercise of discretion and perhaps even advisable in a situation where the defendant is a skilled attorney and his appointed counsel is not," that is not the case here. See United States v. Mosely, 810 F.2d 93, 98 (6th Cir. 1987). "There are obvious justifications for the refusal to allow hybrid representation in criminal trials, regardless of the legal experience of the defendant." Id. One such justification — and the one that this Court in its experience finds the most compelling — is the potential for juror confusion. See id.; see also, e.g., United States v. McKenzie, 779 F. Supp. 2d 1257, 1272 (D.N.M. 2011); United States v. Persico, 447 F. Supp. 2d 213, 220 (E.D.N.Y. 2006).

Watts argues that the potential for juror confusion would be greater if he was representing himself. This argument is unavailing because while Watts has the constitutional right to terminate his lawyer's services and self-represent. That is not what he is asking to do. Simply put, "'hybrid representation' runs the real risk of causing jury confusion, especially with regard to distinguishing when a defendantis an advocate, and when a defendant is a witness."¹ See Persico, 447 F. Supp. 2d at 220. Indeed, the Court is of the opinion that an instruction to the jury that the argument of counsel is not evidence leads to more confusion, not less, when counsel is also a defendant. Watts "may still elect to proceed pro se in full. That choice is his—he either represents himself solely or not at all." See id.

Watts cites case law that "a demand for self-representation must be honored as timely if made before the jury is selected, absent an affirmative showing that it was a tactic to secure delay." See Chapman v. United States, 553 F.2d 886, 887 (5th Cir. 1977). This is a correct citation of the law, but, again, Watts is not requesting solely self-representation; rather, he is requesting a hybrid representation to which, as discussed above, there is no absolute right. See Long, 597 F.3d at 723; Randolph v. Cain, 412 F. App'x 654, 658 (5th Cir. 2010) ("[A]lthough defendant possesses the right to counsel as well as the right to self-representation, there is no constitutional right to have both through a 'hybrid representation' scheme."); Fratta v. Quarterman, No. H-05-3392, 2007 WL...