Opinion
Case No. 2:03CR907DAK
April 23, 2004
ORDER
This matter is before the court on the Motion to Withdraw as Counsel filed by Robert Hunt, Defendant's counsel The court held a hearing on the motion. At the hearing, Defendant was present and represented by Mr. Hunt. The United States was represented by Mark Hirata and Wade Farraway. After considering the motion as well as the relevant law and facts. Being fully advised, the court renders the following Order.
DISCUSSION
Mr. Hunt seeks to withdraw as counsel in this matter because Defendant will not assist him in preparing for trial and persists in filing pro se motions and pleadings in this case. Defendant has previously made his own motions for Mr. Hunt's withdrawal and it is Defendant's conduct that has precipitated counsel's motion. Defendant will not assist Mr. Hunt with the preparation of his case for trial because Defendant believes that his counsel's first duty is to the court rather than to his representation. Although Magistrate Judge Alba and this court have explained to Defendant that his counsel's first duty is to represent him, Defendant persists in his belief that there is a conflict between his counsel's representation and his counsel's duties to the court.
The underlying source of the disagreements between counsel and Defendant appears to be Defendant's beliefs that the United States of America is a fictitious corporation, his belief that this court is not an Article III court and lacks jurisdiction over this matter, and his belief that the United States has no jurisdiction to bring criminal charges against him. Obviously, any attorney would have a disagreement with such frivolous positions. However, between the time that Mr. Hunt filed his motion and this order, the court has ruled on Defendant's jurisdiction motions, and the issues are preserved for appeal. The court has also warned Defendant that if he continues to assert these types of frivolous positions, he will be fined, imprisoned, or both.
Given the court's ruling on these issues and the warning as to the continued assertion of these types of claims, it remains to be seen whether Defendant will continue with such claims or begin to focus on defending the allegations against him. The court believes that Defendant may now realize that Mr. Hunt's services are valuable to him. Mr. Hunt has the experience defending white-collar criminal actions necessary to represent Defendant competently in this matter. Defendant has raised no complaints with Mr. Hunt's abilities as a lawyer. Defendant's only stated complaint at the hearing was his belief that all attorneys have conflicts of interest because he believes that every attorney's first duty is to the court. Because these beliefs apply to all attorneys, Mr. Hunt's withdrawal in this case would not result in the substitution of another counsel but would leave Defendant representing himself pro se.
"A defendant has a constitutional right to waive his right to counsel and to represent himself at criminal trial." Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990). However, to be valid, the trial judge must ensure that the waiver of counsel is "an intentional relinquishment or abandonment of a known right or privilege/' United States v. McConnell, 749 F.2d 1441, 1450-51 (10th Cir. 1984) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A court's determination that the accused lacks expertise or professional abilities cannot justify denying him the right to self-representation. See United States v. McKinley, 58 F.3d 1475, 1481 (10th Cir. 1995); United States v. Bennett, 539 F.2d 45, 50-51 (10th Cir.), cert. denied, 429 U.S. 925 (1976). The competence required of a defendant "to waive his right to counsel is the competence to waive the right, not the competence to represent himself." McKinley, 58 F.3d at 1481. The record must demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se. Faretta v. California, 422 U.S. at 835; Von Moltke v. Gillies, 332 U.S. 708, 724 (1948); Alien, 895 F.2d at 1578; Sanchez v. Mondragon, 858 F.2d 1462, 1467 (10th Cir. 1988). It is "ideal" if the trial judge conducts a "thorough and comprehensive formal inquiry" of these topics. United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991). However, there is "[n]o precise litany" of questions that must be asked of defendants who choose self-representation.
Accordingly, the court cannot rule on this motion until it has conducted a more thorough examination of Defendant as to his competence to waive his right to counsel and determines it is satisfied that Defendant is knowingly and intelligently waiving his right to counsel. At the arraignment, Defendant was informed as to the nature of the charges against him. The record is also clear that Defendant does not have the skills or knowledge to conduct a trial or adequately represent himself. However, the discussions on the record to date do not indicate whether Defendant is fully informed as to the range of allowable punishments, possible defenses, and the many risks of proceeding pro se.
Defendant must be aware of the fact that when a defendant intelligently and voluntarily waives his Sixth Amendment right of active participation and assistance of trial counsel, "he acquiesce[s] in and subject[s] himself to the established rules of practice and procedure in federal criminal trials." United States v. Pinkey, 548 F.2d 305, 310 (10th Cir. 1977) ( Carnley v. Cochran, 369 U.S. 506 (1962)). "The hazards which beset a layman when he seeks to represent himself are obvious. He who proceeds pro se with full knowledge and understanding of the risks does so with no greater rights than a litigant represented by a lawyer, and the trial court is under no obligation to become an `advocate' for or to assist and guide the pro se layman through the trial thicket," Id. (citing Garrison v. Lacey, 362 F.2d 798 (10th Cir. 1966), cert. denied, 387 U.S. 911, 87 S.Ct. 1696, 18 L.Ed.2d 630 (1967); Murphy v. Citizens Bank of Clovis, 244 F.2d 511 (10th Cir. 1957)).
A defendant does not have the right to self-representation if he cannot knowingly and intelligently waive his right and he may lose the right to self-representation if he is not "able and willing to abide by rules of procedure and courtroom protocol." McKaskle v. Wiggins, 465 U.S. 168, 173 (1984). "The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law." Faretta, 422 U.S. at 834 n. 46.
"[A] State may — even over objection by the accused — appoint a `standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Faretta, 422 U.S. at 834 n. 46 (citing United States v. Dougherty, 473 F.2d 1113, 1124-1126). In McKaskle, the court stated it was making "explicit today what is already implicit in Faretta: A defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel-even over the defendant's objection-to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals." 465 U.S. at 184. The court further stated that "[p]articipation by counsel to steer a defendant through the basic procedures of trial is permissible even in the unlikely event that it somewhat undermines the pro se defendant's appearance of control over his own defense." Id.
Therefore, if Defendant can establish a knowing and intelligent waiver of his right to counsel, the court, in its discretion, will appoint Mr. Hunt and his office, the United States Federal Defenders, as stand-by counsel. A "hybrid" arrangement (self-representation with "stand-by" counsel) is within the discretion of the trial court, United States v. Hill, 526 F.2d 1019 (10th Cir.), cert. denied, 425 U.S. 940 (1975). Although the current allegations of a breakdown in communications between Defendant and Mr. Hunt may be relevant if he continues as stand-by counsel, "[t]o warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987) (internal quotation marks omitted). "Good cause for substitution of counsel consists of more than a mere strategic disagreement between a defendant and his attorney, rather, there must be a total breakdown in communications." United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002) (citations omitted). A defendant does not have a right to counsel who shares his political beliefs or who will blindly interpret the law as he would like. United States v. Grosshans, 821 F.2d at 1251; Padilla, 819 F.2d at 956; United States v. Weninger, 624 F.2d 163, 166 (10th Cir.), cert. denied, 449 U.S. 1012 (1980). It is not evident from the facts before the court that there is a complete breakdown in communication between Mr. Hunt and Defendant. The court would need more specific testimony from the parties as to the level of the alleged communication breakdown before making a finding that the current problems rise to a level justifying Mr. Hunt's withdrawal as stand-by counsel on this basis.
Even if there is a complete breakdown in communication, "[a] complete breakdown in communication between a defendant and bis attorney is not, however, equivalent to the complete denial of counsel held to be unconstitutional structural error in Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963)." Lott, 310 F.3d at 1249 n. 8 (citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). "An attorney who cannot or does not communicate with his client may still be able to argue effectively on his behalf." Id. In the context of standby counsel, it is possible that a communication breakdown would not be as relevant. However, the court will address the issue if and when it becomes necessary.
If the federal defender's office is appointed as stand-by counsel, it will continue to receive copies of all filings in this case and will be required to be in attendance at all court proceedings. If Defendant cannot follow the rules and procedures of this court and does anything that abuses the dignity of this court, Defendant will lose his ability to represent himself and stand-by counsel will take over representation. This hybrid arrangement should negate the need for any delays in the prosecution of this matter if a change in representation is necessary.
CONCLUSION
Accordingly, in order to rule on Mr. Hunt's motion, the court must hold another hearing to determine whether Defendant is knowingly and intelligently waiving his right to counsel and the level of communication problems given the current posture of the case. A hearing on these matters is scheduled for May 4, 2004, at 2:00 p.m. Defendant's presence at the hearing is required.