United States v. Thomas , 391 F. App'x 321 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4603
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCELLUS THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00003-WO-1)
Argued: May 12, 2010 Decided: August 6, 2010
Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Arthur L.
ALARCÓN, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Alarcón wrote the
opinion, in which Chief Judge Traxler and Judge Motz joined.
ARGUED: Eugene Ernest Lester, III, SHARPLESS & STAVOLA, PA,
Greensboro, North Carolina, for Appellant. Harry L. Hobgood,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
ALARCÓN, Senior Circuit Judge:
Marcellus Thomas appeals from the judgment entered
following his conviction by a jury of twelve counts of violating
26 U.S.C. § 7206(2) by aiding and assisting in the preparation
of false federal income tax returns. He seeks reversal on the
ground that the district court violated his Sixth Amendment
right to represent himself at his trial despite his timely,
voluntary, knowing, intelligent, and unequivocal request to do
so. We affirm because we conclude that the district court did
not err in denying Thomas’s motion to represent himself on the
grounds that it was manipulative, and not clear and unequivocal.
We also determine that his request was made to delay, obstruct,
and hinder the timely disposition of this case.
I
Thomas was indicted on January 28, 2008. When he appeared
for arraignment on February 2, 2008, attorney David Smith made a
limited appearance on behalf of Thomas. Arraignment was set for
February 7, 2008.
On February 5, 2008, William S. Trinette of the Federal
Defender’s Office, was appointed to represent Thomas. On
February 7, 2008, Thomas entered a not guilty plea to all the
charges in the indictment. The district court ordered that a
trial by jury be set for March 10, 2008.
2
On March 3, 2008, Assistant Public Defender Trinette filed
a motion to withdraw as counsel. He explained that withdrawal
was required because of a conflict of interest arising from the
fact that an investigator for the Federal Defender’s Office was
related to one of the persons listed in the indictment.
Attorney Brian Gates was appointed to represent Thomas on
March 13, 2008. On April 10, 2008, Thomas filed a pro se motion
for the substitution of counsel. He complained that Mr. Gates
urged him to plead guilty, had only met him once, did not
request that the court appoint an investigator, and had no
experience in trying an income tax case. On April 16, 2008,
Thomas filed a pro se motion to continue the trial date. On
April 17, 2008, the district court scheduled the trial date for
April 23, 2008. During the status hearing on April 17, 2008,
Thomas stated: “If I’m not satisfied with [Mr. Gates’]
services, can I just after the discussion come back and move the
Court that I represent myself.” The district court responded:
“You clearly have the right to represent yourself.” The
district court denied the motion to substitute counsel.
On April 21, 2008, Thomas filed another pro se motion for
the appointment of substitute counsel. On that date, the
district court granted this request. On April 24, 2008,
attorney Robert A. Broadie was appointed to represent Thomas.
3
Thomas filed numerous pro se motions after Mr. Broadie was
appointed to represent him. At a May 8, 2008, status hearing,
the district court stated to Thomas:
Now if you continue to persist in making your own
motions to the Court outside or separate from the
advice of counsel that Mr. Broadie has rendered, or if
you want to proceed pro se, then we’ll have a separate
hearing to determine whether or not you want to
proceed with counsel or you want to represent
yourself.
Thomas replied: “I understand that. I would respect the Court
and Your Honor not to assume that I appreciate the services of
my attorney”.
The Court then inquired: “Are you satisfied with the
services of Mr. Broadie?”
Thomas responded: “At this time I am, Your Honor.”
On May 28, 2008, Thomas filed a pro se motion to continue
the trial date. The district court denied all outstanding pro
se motions at a status conference held on May 30, 2008,
including Thomas’s pro se motion to continue the trial date.
The date for jury selection and trial was again ordered to
commence on June 2, 2008.
On June 1, 2008, Mr. Broadie filed a motion to withdraw as
Thomas’ trial counsel. On June 2, 2008, Thomas filed a pro se
motion for the appointment of substitute counsel.
4
On June 2, 2008, the district court conducted a hearing,
before the scheduled commencement of jury selection, to consider
Thomas’s motion to stay the trial of this matter until Thomas’s
appeal to the Fourth Circuit, filed on May 30, 2008, was
determined by this Court. In his interlocutory appeal, Thomas
sought review of the May 30, 2008 denial of (1) his motion to
dismiss the indictment, (2) the denial of his motion to continue
the trial date, (3) the denial of his motion to suppress
evidence, and (4) his motion that Judge William L. Osteen, Jr.,
recuse himself from presiding over the trial.
After hearing Thomas’s argument in support of his motion
for a stay, the district court denied the motion. It concluded
that it was not divested of jurisdiction because it had not
entered a final judgment in this matter.
Thomas then requested a three-day stay “to discuss with my
new counsel on the matter.” The district court denied the
motion.
The district court then noted that Mr. Broadie filed a
motion to withdraw as Thomas’s counsel on Sunday, June 1, 2008
at approximately 10:00 p.m. Mr. Broadie informed the district
court that he filed the motion after Thomas told him he had
“concerns with me representing him further in this trial.”
In his pro se substitution of counsel motion, Thomas
asserted that Mr. Broadie’s representation was inadequate. He
5
informed the district court “me and my attorney have not met,
which is in the record, to even discuss any theories of trial.”
He also asserted that Mr. Broadie had failed to request funds
for the appointment of a tax expert. Thomas further complained
that Mr. Broadie had never tried a tax case. Thomas stated: “I
ask the court on the record in the right of trial fairness and
my rights under the constitution to (sic) the Sixth Amendment to
have an effective and adequate counsel.”
At the request of the district court for a response,
Mr. Broadie stated that he had had numerous phone calls with his
client. He had also set aside the preceding Wednesday,
Thursday, and Friday, as well as the whole weekend, to meet with
Thomas in preparation for trial. Thomas did not meet with
Mr. Broadie, however, until Sunday. On that day, instead of
discussing defense theories, Thomas focused on their difference
of opinion as to “the matters of law that he wanted to proceed
upon and the various motions he wanted to file.” The district
court denied the motion for a substitution of counsel.
Thomas was then permitted to make a further statement of
his position. He stated that “At this moment, Your Honor, we’re
not ready for trial... I don’t – at this time, Your Honor, I
don’t have adequate representation. That’s why I moved to get
new counsel, Your Honor. Or in the interests of justice,
possibly a Motion to Continue, that I could have a right to
6
discuss the factual elements with my attorney so I can have a
fair trial.” The district court treated Thomas’s request as a
motion for reconsideration of its earlier ruling denying the
motion for a substitution of counsel. In response, Thomas
stated that he felt that Judge Osteen’s decision was biased.
Thomas then stated: “And let the record show that the defendant
does not choose to proceed with Mr. Broadie as his attorney.”
The district court advised the parties it was going to take
a ten minute recess “to allow Mr. Broadie and Mr. Thomas an
opportunity to have whatever further discussions they want to
have, in view of the court’s denial of the Motion to Appoint
Substitute Counsel in this matter.”
During the recess, Thomas served two documents on the
district court in which he requested a stay of further
proceedings, and a notice of appeal based on the denial of his
motion to substitute counsel. The district court denied the
motion for a stay.
The district court then inquired of Mr. Broadie whether
“Mr. Thomas wants to proceed with counsel, or does Mr. Thomas
want to be heard on which he alluded to, that is, proceeding pro
se in this matter?” Mr. Broadie replied: “I can assert to the
court that I’ve been advised that that will be his position, to
proceed pro se, but I will tender Mr. Thomas to make sure that
7
the court had adequate understanding of his position, because
that is the very reason I filed this motion.”
Thomas requested that the district court rule on
Mr. Broadie’s motion to withdraw as his attorney. The district
court replied: “All right. Mr. Broadie’s Motion to Withdraw is
denied. Now, how do you want to proceed? Mr. Thomas, do you
want to be heard on the Motion to Proceed in Pro Se?” (Thomas
replied, “Not at this time, Your Honor. I will hold my right,
that’s my right under the constitution to represent myself. If
I want to go pro se anytime in this proceeding, and right now –-
and I would right now hold my right to that.”
In response, the district court summarized its findings as
follows:
1. Thomas’s pro se motion to substitute counsel was
not timely filed. It was filed on 8:30 a.m. on
the date that jury selection was scheduled to
begin.
2. The untimeliness of the motion “casts some doubt
of the defendant’s motives in filing the Motion to
Substitute Counsel; that is with respect to
attempts to obstruct, hinder and delay the trial
that is scheduled in this matter.”
3. “The court does not find that conflict is so great
between attorney and [client] that it has resulted
8
in a total lack of communication, preventing an
adequate defense based on what’s been described in
this court during the course of these proceedings.
4. Any failure to communicate arises from Thomas’s
“desire to proceed ahead on legal arguments that
the defendant desires to make.”
Based on these findings, the district court denied
Mr. Broadie’s motion to withdraw as counsel. Thomas then
stated:
I would like to be –- have –- a motion be heard at a
further time with respect to proceeding pro se and
would respectfully request the court to grant me I
would say a week to review my options and either
proceed pro se or even try to hire a new attorney in
light of my appeal.”
The district court denied the motion. It noted that the
indictment had been pending in this case since January 28, 2008.
The district court then proceeded to discuss Thomas’s
suppression motion and the proposed instructions to the jury
with counsel. Thomas then made an oral motion to proceed in pro
se. The district court stated:
[Y]our motion is denied at this point. Having
just told me 30 or 40 minutes ago that you wanted to
keep Mr. Broadie as your counsel, to now turn around
after what’s transpired in this courtroom since I’ve
returned and make a Motion to Proceed Pro Se, just is
nothing more than to delay these proceedings.
9
The district court advised Thomas that it would hear from
him again on his motion to proceed pro se after concluding the
hearing with counsel on the suppression motion and the proposed
jury instructions.
After the district court had concluded its conference with
counsel, it inquired of Thomas whether he wanted to continue
being represented by Mr. Broadie. Thomas responded that because
Mr. Broadie did not have experience regarding tax law and the
Internal Revenue Code, and had not conferred with him about the
trial exhibits, or discussed his defense, he wished to represent
himself at trial. He requested that he be granted “a
considerable amount of time to, on my own, hire or get tax
experts and any witnesses or experts that would help me avail
myself of a proper and good defense in this matter.” (R.T. at
100.) The district court denied the motion to continue the
trial. It then inquired of Thomas whether he wished to proceed
pro se in view of the fact that his motion for a continuance had
been denied. Thomas responded that he wished to proceed pro se.
Thomas also stated, however, that if the Court of Appeals
granted his appeal from the denial of his motion for
substitution of counsel, he wanted to be represented by counsel
at trial. Thereupon, the district court conducted an
evidentiary hearing to determine whether Thomas’s motion to
represent himself should be granted.
10
Thomas was placed under oath and was questioned by the
district court. Thomas testified that he had not been treated
recently for mental illness, or addiction to narcotics.
Thomas testified that he was aware that he was charged with
thirteen counts of violating 26 U.S.C. § 7206(2), and the
maximum possible penalties that could be imposed if he were to
be convicted of these crimes. Thomas also admitted that he had
not met with Mr. Broadie on Wednesday, Thursday, Friday,
Saturday, and Sunday, the days his appointed counsel had made
available to concur with his client because he had car trouble,
and was involved in filing pro se legal motions. Thomas also
conceded that he filed pro se motions to continue the trial and
filed motions in the Court of Appeal to stay the trial pending
the determination of these appeals. He stated that he had filed
a notice of appeal that date and had requested a stay of the
district court’s proceedings. Thomas also admitted that he had
informed the district court, during earlier proceedings on that
date, that he wished to proceed represented by Mr. Broadie
roughly an hour and one-half earlier on June 2, 2008. (R.T. at
108.) Thomas further conceded he had changed his mind again
about requesting self-representation.
In addition, he admitted that he had made a motion to
continue the trial fifteen minutes earlier. In response to the
district court’s inquiry, Thomas also stated he understood that
11
if he proceeded to represent himself, he would have to conduct
voir dire, make the opening statement, and conduct his
examination of witnesses in accordance with the rules of
evidence. Thomas also acknowledged that he was not familiar
with the tax laws.
The district court denied Thomas’s motion to represent
himself because it was not clear and unequivocal. It also found
that it was untimely.
The district court explained that whether Thomas’s motion
to represent himself was knowing, intelligent, and voluntary was
of “significant” concern because of Thomas’s vacillation in
asserting his right to self-representation. The Court opined
that Thomas’s conduct exhibited manipulation and efforts to
delay, obstruct and hinder the orderly disposition of this case.
The district court denied Thomas’s motion to proceed pro se
because it concluded that his motion to proceed pro se was being
“used as a tactic to delay and disrupt the trial and distort the
system and manipulate the trial process.”
Thomas was found guilty of Counts 2 through 13 of the
indictment. Thomas was sentenced to serve fifty-six months of
imprisonment and ordered to pay restitution in the amount of
$19,812. On October 22, 2008, Thomas filed a timely Notice of
Appeal. This Court had jurisdiction pursuant to 28 U.S.C.
§ 1291.
12
II
Thomas has presented the following issue for review in this
appeal: “Did the trial court violate Mr. Thomas’s Sixth
Amendment right to proceed at trial without the assistance of
counsel when it forced appointed counsel upon him despite his
timely, voluntary, knowing, and intelligent requests to
represent himself?” (Appellant’s Opening Br. at 1.) “We review
a district court’s denial of a defendant’s right to self-
representation de novo.” United States v. Bush, 404 F.3d 263,
270 (4th Cir. 2005)(citing United States v. Singleton, 107 F.3d
1091, 1996 (4th cir. 1997). “We review the district court’s
findings of historical fact for clear error.” Id. (citing
United States v. Flackovich, 209 F.3d 1227, 1236 (10th Cir.
2000).
Citing Faretta v. California, 422 U.S. 806 (1975) and
28 U.S.C. § 1654, Thomas argues that “[a] defendant in a
criminal case has both a statutory and constitutional right to
proceed without the assistance of counsel.” * (Appellant’s
Opening Br. at 8.) He contends that the trial court’s denial of
*
Section 1645 reads as follows:
In all courts of the United States the parties
may plead and conduct their own cases personally or by
counsel as, by the rules of such courts, respectively
are permitted to manage and conduct cases therein.”
13
his motion to dismiss appointed counsel to represent himself”
defeat[ed] the absolute right of a mentally competent defendant
to dismiss appointed counsel and conduct his own defense.”
(Appellant’s Opening Br. at 13.) We disagree. Faretta did not
create an “absolute right” to self-representation to mentally
competent defendants who knowingly and intelligently waive their
right to counsel. In fact, in Bush, this Court expressly held
that the Faretta right to self-representation is not absolute.
Id.
In Bush, this Court set forth the circumstances that
justify the denial of a mentally competent defendant’s motion
for self-representation:
In determining whether a defendant properly has
exercised his right to self-representation and waiving
his right to counsel, we ascertain whether the
assertion of the right to self-representation is
(1) clear and unequivocal, (2) knowing, intelligent
and voluntary; and (3) timely. The requirement that
the assertion be clear and unequivocal is necessary to
protect against an inadvertent waiver of the right to
counsel by a defendant’s occasional musings, and it
also prevents a defendant from taking advantage of and
manipulating the mutual exclusivity of the rights to
counsel and self-representation. Addi-tionally, in
ambiguous situations created by a defendant’s
vacillation or manipulation, we must ascribe a
constitutional primacy to the right to counsel. At
bottom, the Faretta right to self-representation is
not absolute and the government’s interest in ensuring
the integrity and efficiency of the trial outweighs
the defendant’s interest in acting as his own instant
lawyer. (emphasis added).
14
Bush, 404 F.3d at 271. (internal citations and quotation marks
omitted).
A
Thomas’s pro se motion for a substitution of counsel and a
stay of further proceedings was filed on the morning set for
trial. In United States v. Reevey, 364 F.3d 151 (4th Cir.
2004), this Court held that “a continuance request for the
substitution of counsel made on the first day of trial is
clearly ‘untimely under all but the most exigent
circumstances’.” Id. at 157. (quoting United States v.
Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994)). Thomas has
failed to identify any exigent circumstances that demonstrate
that his request for a substitution of counsel and a continuance
of his trial was timely. He had asserted the same reasons for
his dissatisfaction with Mr. Broadie several times previously.
Thomas’s assertion that Mr. Broadie was not prepared for trial
because he had not conferred with Thomas was contrary to the
undisputed fact that he failed to meet with his counsel on the
days Mr. Broadie made himself available to discuss Thomas’s
defense.
“We review for abuse of discretion a district court’s
rulings on a motion to substitute counsel and on a request for a
continuance.” Reevey, 364 F.3d at 156. The district court did
15
not abuse its discretion in denying Thomas’s motion for a
substitution of counsel and a continuance.
B
Thomas’s motion to proceed in pro se was asserted for the
first time on the date set for trial. The district court
advised him on April 17, 2008, that he had a right to represent
himself. On May 8, 2008, Thomas informed the district court
that he was satisfied with Mr. Broadie’s representation. At the
May 30, 2008, status conference, Thomas did not indicate that he
desired to represent himself.
In United States v. Lawrence, 605 F.2d 1321 (4th Cir.
1979), this Court held that the right of self-representation
must be asserted at some time “before meaningful trial
proceedings have commenced, and that thereafter its exercise
rests with the sound discretion of the trial court.” Id. at
1325. Thomas’s motion to represent himself was not made before
meaningful trial proceedings had commenced. It was asserted on
the day of trial after the district court considered in limine
motions and had conferred with counsel about the instructions
that should be addressed to the prospective jurors.
Thomas contends that “[d]efendants are allowed to assert
their right to self-representation anytime before trial or
before the jury is empanelled.” (Appellant’s Opening Br. at
17.) Thomas cites McKaskle v. Wiggins, 465 U.S. 168 (1984) in
16
support of this proposition. No issue was raised in McKaskle
regarding whether the assertion of a motion for self-
representation can be asserted anytime before trial or the jury
is empanelled. The sole issue raised in McKaskle was “what role
standby counsel who is present at trial over the defendant’s
objection may play consistent with the protection of defendant’s
Faretta rights.” McKaskle, 465 U.S. at 170.
Our research has not disclosed an opinion of this Court
that has expressly considered whether the denial of a motion for
self-representation as untimely that was filed on the date set
for trial, but prior to jury selection, is erroneous. In
Lawrence, this Court stated that “[w]hen ‘meaningful trial
proceedings have commenced’ will of course vary from case to
case.’” Lawrence, 605 F.2d at 1325. In that matter, this Court
held that the defendant’s motion was untimely when the jury had
been selected but had not yet been sworn. Id. We need not
decide in this case whether the filing of a motion for self-
representation on the date set for trial, but before jury
selection has commenced is timely because we are persuaded that
the district court did not clearly err in finding that Thomas’s
request to represent himself was manipulative to delay and
obstruct the orderly disposition of this case, and therefore,
was not clear and unequivocal.
17
C
Thomas argues that the district court clearly erred in
finding that his purported waiver of counsel was not knowing,
intelligent, voluntary, and clear and unequivocal. The district
court found that Thomas “vacillated back and forth at least a
couple of times over the past two hours.”
It is undisputed that Thomas was mentally competent to make
a knowing, intelligent, and voluntary waiver of his right to
counsel. The district court placed Thomas under oath and
inquired whether he was addicted to drugs or suffered from
mental illness. Thomas also testified that he was aware of the
charges against him, the maximum penalties and the fact that he
had to conduct his voir dire of the jury, present an opening
statement, and examine witnesses in accordance with the rules of
evidence.
After the district court denied his motion to represent
himself, Thomas filed another interlocutory appeal before this
Circuit. After the jury selection proceedings had commenced,
Thomas stated: “I would like to have a motion to get time to
get a new attorney at my own expense. Will Your Honor entertain
me doing that.” In denying this motion, the district court
stated: “You’ve had since January to find your own counsel and
you, for whatever reason, have not done that.” Thomas
responded: “But for the record, I would like to have a motion
18
to dismiss my attorney and have time to get another lawyer.”
This motion again cast doubt on whether his earlier request that
he be granted the right to represent himself was unequivocal.
It was yet another belated attempt to delay his trial.
CONCLUSION
The record supports the district court’s determination that
Thomas’s request to represent himself was not clear and
unequivocal. On the eve of the original April 10, 2008, trial
date, Thomas asked to have Mr. Gates removed and replaced with
new counsel because he disagreed with Thomas as to how to
prepare for trial. At a hearing on April 16, 2008, Mr. Gates
informed the court that he would not “engage in tactics that I
think are unwise or ill-conceived.” After the district court
granted the request and appointed Mr. Broadie, Thomas continued
filing pro se motions even though he was represented by counsel.
On the eve of trial, Thomas again sought to substitute counsel,
or in the alternative, to represent himself, raising the same
arguments he made when he sought substitute counsel for
Mr. Gates, i.e., that Mr. Broadie had not met with him
sufficiently to discuss the evidence in the case; that
Mr. Broadie lacked sufficient experience in tax trials; and,
that Mr. Broadie had failed to engage a tax expert. When
questioned by the district court at the hearing on the morning
19
jury selection was to begin, Thomas admitted he was not ready
for trial and asked for a continuance to “to review [his]
options.” The record clearly demonstrates that Thomas’s request
to represent himself was a manipulative effort to present
particular arguments rather than a sincere desire to dispense
with Mr. Broadie’s services. See United States v. Frazier-El,
204 F.3d 553, 560 (4th Cir. 2000)(“A trial court must be
permitted to distinguish between a manipulative effort to
present particular arguments and a sincere desire to dispense
with the benefits of counsel.”)
Thomas argues that his request was “conditional,” not
“equivocal,” because he wanted to represent himself only if he
could not get substitute counsel appointed. (Appellant’s
Opening Br. at 14-15.) Thomas’s argument misses the mark. The
district court did not conclude that his request was unequivocal
merely because he made it “in the alternative” to getting new
counsel. As the district court noted, within the span of a few
hours at the hearing on the morning of June 2, 2008, Thomas
changed his mind several times as to whether he wanted to keep
his counsel or proceed pro se and represent himself, subject to
the granting of an order granting him a continuance. It was
this vacillation that constituted the lack of clarity and
equivocation, not the framing of the request “in the
20
alternative,” which led the district court to conclude that the
request was not unequivocal.
“In ambiguous situations created by a defendant’s
vacillation or manipulation, we must ascribe a ‘constitutional
primacy’ to the right to counsel because this right serves both
the individual and collective good, as opposed to only
individual interests served by protecting the right of self-
representation.” Frazier-El, 204 F.3d at 559 (quoting
Singleton, 107 F.3d at 1102.) The district court did not err in
denying Thomas’s request to represent himself on the ground that
his request was not clear and unequivocal.
Accordingly, we affirm.
AFFIRMED
21