United States v. David Parker , 576 F. App'x 157 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4886
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ISAAC PARKER, a/k/a David Green, a/k/a David Smith,
a/k/a Jay Smith,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. J. Frederick Motz, Senior District
Judge. (8:11-cr-00459-JFM-1)
Argued: May 15, 2014 Decided: June 16, 2014
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, PA,
Columbia, Maryland, for Appellant. Paul Nitze, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, Deborah A. Johnston, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury returned a three-count second
superseding indictment against Appellant David Isaac Parker
(“Appellant”) charging him with conspiracy to import cocaine in
an amount greater than five kilograms, in violation of 21 U.S.C.
§§ 960 and 963; importing more than 500 grams of cocaine, in
violation of 21 U.S.C. § 960; and possession with intent to
distribute more than 500 grams of cocaine, in violation of 21
U.S.C. § 841(a)(1). Following a jury trial, where Appellant
served as his own counsel, Appellant was convicted of all three
counts. On appeal, Appellant raises a single issue: whether the
district court conducted a constitutionally adequate inquiry
regarding Appellant’s desire to serve as his own counsel.
Because Appellant’s election to proceed pro se was
clear and unequivocal, as well as knowing and intelligent, we
conclude that the district court conducted a constitutionally
adequate inquiry regarding Appellant’s desire to serve as his
own counsel. Therefore, we conclude the district court did not
err in granting Appellant’s request to waive counsel and proceed
pro se. Accordingly, we affirm.
I.
Appellant was first arrested on July 20, 2011, when
the United States Postal Service executed a controlled delivery
of a package containing cocaine that was addressed to, and
2
accepted by, Appellant. Subsequent to his arrest, Appellant was
charged in a sealed criminal complaint on July 26, 2011,
followed by a sealed indictment on August 22, 2011, and a
superseding indictment on November 2, 2011. Finally, on May 23,
2012, Appellant was charged in the second superseding
indictment, the charging document upon which the trial
ultimately proceeded.
Throughout the pendency of this case, Appellant had
multiple court appearances in front of both the magistrate court
and the district court, and had the benefit of both appointed
and retained counsel. During these appearances, Appellant was
repeatedly advised of his rights. For example, at an initial
appearance in magistrate court on October 24, 2011, where
Appellant was represented by retained counsel, the court engaged
in a lengthy explanation with Appellant about his constitutional
rights as well as the nature of the charges against him. During
this colloquy, Appellant continually insisted that he did not
understand even the most basic concepts. Appellant’s assertions
prompted the court to observe, “I think that [Appellant] is
playing games with the [c]ourt.” J.A. 26. 1 Shortly thereafter,
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
Appellant ultimately stated that he understood, but just did not
agree.
[APPELLANT]: I am reading the Indictment[;]
I understand what you are saying. But as
far as the wording on the Indictment I don’t
agree with.
THE COURT: That is fair. Nothing wrong with
you not agreeing with it, that is exactly
where your Counsel wants you to be. Not a
problem. But do you understand what they
are claiming you have done wrong?
(Pause)
[APPELLANT]: Yes, I understand for the
record on this paper what they are accusing
me of, yes.
Id. at 28. Further, Appellant told the magistrate court that he
had no mental condition, illness, or defect that affected his
judgment.
Appellant appeared before the district court at a
December 20, 2011 motions hearing to address a suppression
motion filed by Appellant’s retained counsel. At this hearing,
Appellant’s retained counsel represented to the court that
Appellant wished to proceed pro se. According to counsel,
Appellant desired to litigate motions he had previously filed
pro se which presented a sovereign citizen defense. After
denying those motions, the district court inquired at length of
Appellant as to whether he wished to continue serving as his own
counsel.
4
THE COURT: [Your attorney] has expressed on
your behalf that you want to represent
yourself in this matter. Is that true?
[APPELLANT]: Yes.
THE COURT: You understand that you have a
right to be represented by counsel, and that
these are legal issues in which counsel are
trained to represent the client’s interest,
which would include, you know, moving to
suppress any statements that were made or
any evidence that was seized. Do you
understand that?
[APPELLANT]: You’re asking me do I
comprehend? Yes.
. . .
[APPELLANT]: [My attorney] stated earlier
that he would like to take a back seat and
just be my advisor.
THE COURT: Is that, is that -- do you want
him as standby counsel, then, essentially,
to advise you, and have you represent
yourself?
[APPELLANT]: Yes.
. . .
THE COURT: But, Mr. Parker, as I understand
it, with the advice of [your attorney], the
questions you want to ask, you want to ask
them yourself and you want to pursue any
motions that you deem appropriate, is that
what I understand you want to do? Or do you
want to have him ask the questions of the
witnesses?
[APPELLANT]: If I can have more time to get
myself prepared for that, I would like to do
that myself.
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THE COURT: We will postpone the hearing
. . . . But the question is when we do have
the hearing, when we do it, do you really
want to put yourself in the position where
you are asking the questions of the
witnesses?
[APPELLANT]: Yes.
THE COURT: And assuming, which I have no
idea because I haven’t heard the evidence
yet, but assuming I deny the motions, do you
want to represent yourself at trial as well?
[APPELLANT]: Yes.
THE COURT: And you understand that by
proceeding in this way, you are, although
[your attorney] is there to advise you, I
mean, there are certain, I mean, I’m not
going to let you testify from the counsel
table. I mean, if you want to testify,
you’re going to have to take the witness
stand yourself and be subject to the
penalties of perjury, if you choose to
testify. Of course, you don’t have to
testify if you don’t want to.
But you understand that you can’t
essentially testify by asking questions of
the witnesses. Do you understand that?
[APPELLANT]: I comprehend well.
J.A. 52-55. Per Appellant’s request, the district ultimately
appointed retained counsel to serve as standby counsel.
After Appellant advised the court that he was taking
medication for bipolar disorder, the court ordered a competency
evaluation. Following his competency evaluation, Appellant
appeared before the district court again on April 27, 2012, for
another motions hearing. Because Appellant’s retained counsel,
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now serving as his standby counsel, was extremely late, the
court commenced the hearing with counsel, who was still a great
distance from the courthouse, on the telephone. The court
admonished counsel for his irresponsibility, and Appellant
stated he no longer wished for retained counsel to serve as
standby counsel.
The district court again confirmed with Appellant that
he wanted to serve as his own counsel. After the court asked
Appellant if he wished to continue to represent himself,
Appellant responded, “I can’t represent myself. I’m going to be
myself.” J.A. 62. Clearly frustrated, the court responded, “I
don’t know what I’m supposed to advise you. What am I supposed
to advise him about representing himself?” Id. The court then
engaged in an extensive colloquy with Appellant about his
understanding of the nature of the charges against him and his
desire to serve as his own counsel. Appellant again frustrated
the matter by claiming he “comprehend[ed]” but did “not
understand.” Id. at 63. Appellant explained that
“comprehend[ing]” means he “intelligently hear[s]” what is being
said. Id. The court then explained to Appellant,
THE COURT: You are facing a serious charge
and you’re subject to very serious
penalties, including a $100 special
assessment, which I don’t think was
mentioned. . . . That’s trivial compared to
the prison sentence you face. So whether
you comprehend or you understand, the fact
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of the matter is you’ve been examined and
have been found competent to stand trial.
And also, you had a lawyer, who I really
don’t think has been very good, to tell you
the truth.
I don’t know whether you’re indigent or
not, but I’ll arrange to have counsel
appointed to represent you, if you want.
I don’t want any injustice done in this
case. And I want you to understand that you
are subject to a very serious charge, and
you’re subject to very serious penalties,
and that this case is going to proceed in
accordance with the law and in accordance
with the Federal Rules of Criminal
Procedure, which are not easy to understand
in all respects, [and] the Federal Rules of
Evidence.
If you want to proceed representing
yourself, you have an absolute right to do
so. I can’t stop you. On the other hand, I
think that -- my own judgment is you would
be well advised to have a lawyer
representing you.
Do you want to proceed with or without
a lawyer?
[APPELLANT]: Without.
Id. at 64-65.
The court then proceeded to conduct a hearing on
Appellant’s suppression motion in which Appellant served as his
own counsel and made many objections. After denying Appellant’s
suppression motion, the court again discussed Appellant’s desire
to serve as his own counsel:
[THE COURT:] As I say, if you want to
represent yourself, you’re absolutely free
to do so and I am not going to do anything
to prevent you from doing so. On the other
hand, I want to make sure that your
interests are properly represented. And I
8
take it -- I don’t know. Do you still, do
you want a lawyer or you don’t want a
lawyer?
[APPELLANT]: No, I do not.
J.A. 91-92. Appellant then confirmed several more times that he
wished to serve as his own counsel. Therefore, the district
court found that Appellant “voluntarily decided to represent
himself,” stating,
I make that finding. I make it reluctantly
because I want the defendant’s rights to be
protected. But it could not be more clear
that he wants to proceed pro se without
representation of counsel or the assistance
of standby counsel. And I so find. . . .
There’s already been a competency
evaluation. We had the doctor examine Mr.
Parker, and he found him competent to stand
trial. I can’t do any more.
Id. at 94. 2
On July 30, 2012, the first day of Appellant’s trial,
before empaneling the jury, the district court again engaged in
a lengthy discussion with Appellant and his appointed standby
counsel regarding Appellant’s wishes to proceed pro se. Despite
having been through numerous colloquies on several occasions
with the court, Appellant asserted that he did not “understand
2
Although Appellant continually asserted at this hearing
that he did not want standby counsel, new standby counsel was
appointed to him and a notice of appearance for standby counsel
was entered on June 12, 2012.
9
anything.” J.A. 110. In response to his continued assertions,
the court stated,
We have a finding, because there were
allegations, there were assertions made
earlier in the proceedings that Mr. Parker,
quote, “did not understand”, we had an
examination. And the conclusion of the
examination is that Mr. Parker was competent
to understand the proceedings against him.
That is the record and we are proceeding on
that basis. Continued assertions or
allegations that I don’t understand do not
change that finding. . . . I mean, the
result of that finding has all kinds of
legal effects itself. If I were to find
that you didn’t understand the proceedings
against you -- and I have no reason to think
you don’t understand. You just aren’t
happy.
Id. at 132. The court then thoroughly explained to Appellant
the trial process, including picking a jury, opening statements,
witness testimony, the role of standby counsel, and what the
jury was permitted to consider.
During trial, Appellant participated in jury
selection, gave an opening statement, cross-examined witnesses,
made numerous objections to the Government’s evidence, raised a
suppression issue with regard to the timing of the warrant, and
made a closing argument. After three days of trial, on August
1, 2012, the jury found Appellant guilty of all counts. The
district court sentenced Appellant on October 26, 2012, to 121
months imprisonment. This timely appeal followed.
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II.
It is clear “[w]e 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) (emphasis
supplied). Appellant contends we should also review the
district court’s decision to allow Appellant to proceed pro se
de novo. See, e.g., United States v. Singleton, 107 F.3d 1091,
1097 n.3 (4th Cir. 1997) (“Determination of a waiver of the
right to counsel is a question of law, and thus we review it de
novo.” (internal citations omitted)). The Government counters
that Appellant raises this issue for the first time on appeal,
and thus, our review is only for plain error. See, e.g., United
States v. Bernard, 708 F.3d 583, 588 (4th Cir. 2013) (applying
plain error review because Appellant raised the issue of
competency to waive the right to counsel for the first time on
appeal).
We need not and do not decide the question of which
standard of review is appropriate here because Appellant’s
argument fails when measured against either standard. See,
e.g., United States v. Stanley, 739 F.3d 633, 645 (11th Cir.
2014) (declining to select a standard of review when a
defendant’s challenge to the validity of his waiver of right to
counsel failed under both plain error and de novo review). For
that reason, we examine the constitutional adequacy of the
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court’s inquiry into Appellant’s desire to serve as his own
counsel by the less deferential of the two standards, that is,
de novo.
III.
We begin our analysis “with the fundamental tenet that
a criminal defendant has a Sixth Amendment right to self-
representation.” United States v. Bernard, 708 F.3d 583, 588
(4th Cir. 2013); see also Faretta v. California, 422 U.S. 806,
819 (1975). A defendant seeking to represent himself “may waive
the right to counsel and proceed at trial pro se only if the
waiver is (1) clear and unequivocal, (2) knowing, intelligent,
and voluntary, and (3) timely.” Bernard, 708 F.3d at 588.3
However, the “right to self-representation is not absolute, and
the government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s
interest in acting as his own lawyer.” Id. (internal quotation
marks omitted). Ultimately, “[t]he determination of whether
there has been an intelligent waiver of the right to counsel
must depend, in each case, upon the particular facts and
circumstances surrounding that case, including the background,
3
At the outset, it is important to identify that unlike in
Bernard, Appellant does not claim that he was not competent to
represent himself at trial or not competent to waive his right
to counsel. Appellant argues only that his waiver was neither
(1) clear and unequivocal; nor (2) knowing and intelligent.
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experience, and conduct of the accused.” Johnson v. Zerbst, 304
U.S. 458, 464 (1938); see also United States v. Singleton, 107
F.3d 1091, 1097 (4th Cir. 1997).
Moreover, while a trial court must determine if a
waiver of counsel is knowing and intelligent, no particular
interrogation of the defendant is required, so long as the court
warns the defendant of the dangers of self-representation such
that “‘his choice is made with his eyes open.’” United States
v. King, 582 F.2d 888, 890 (4th Cir. 1978) (quoting Faretta, 422
U.S. at 835); see also Iowa v. Tovar, 541 U.S. 77, 88 (2004)
(“We have not . . . prescribed any formula or script to be read
to a defendant who states that he elects to proceed without
counsel.”). As we have stated,
the court must assure itself that the
defendant knows the charges against him, the
possible punishment and the manner in which
an attorney can be of assistance. The
defendant must be made aware that he will be
on his own in a complex area where
experience and professional training are
greatly to be desired.
King, 582 F.2d at 890 (internal citations omitted).
Here, Appellant argues the district court failed to
ensure that he actually desired to represent himself, and
further, that he actually comprehended his right to counsel in
an adequate fashion so as to enter a constitutionally effective
waiver of his right to counsel.
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A.
Clear and Unequivocal
First, Appellant contends the district court
“misunderstood” some of his statements as a request to represent
himself. Appellant’s Br. 10. Instead, Appellant argues he
simply did not “understand.” Id. at 11-12. According to
Appellant, this is evidenced by his continued assertions of the
same. This argument is contrary to the record. Appellant was
repeatedly, clearly, and directly asked at several different
court appearances if he wished to represent himself, and he
consistently and clearly answered in the affirmative.
Specifically, the district court asked Appellant multiple times
whether he wished to represent himself at both of the motions
hearings on December 20, 2011, and April 27, 2012, as well as on
the first day of trial on July 30, 2012. In each of the many
instances Appellant was questioned, he confirmed that he wanted
to represent himself. For example:
THE COURT: [Y]ou want to represent yourself
in this matter. Is that true?
[APPELLANT]: Yes.
J.A. 52.
THE COURT: [D]o you want to represent
yourself at trial as well?
[APPELLANT]: Yes.
Id. at 54.
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[THE COURT:] Do you want to proceed with or
without a lawyer?
[APPELLANT]: Without.
Id. at 65.
[THE COURT:] Do you still, do you want a
lawyer or you don’t want a lawyer?
[APPELLANT]: No, I do not.
Id. at 91-92.
THE COURT: Now, what role would you like
[standby counsel] to play in the trial?
[APPELLANT]: None.
Id. at 111.
THE COURT: Mr. Parker, do you want [standby
counsel] to represent you –
[APPELLANT]: No, sir.
THE COURT: as full counsel?
[APPELLANT]: No.
THE COURT: No?
[APPELLANT]: No, sir.
Id. at 121.
Based on the record before us, there is no question
Appellant’s waiver of his right to counsel was clear and
unequivocal.
15
B.
Knowing and Intelligent
Next, Appellant argues the district court failed to
ensure that he comprehended what representing himself entailed,
rendering constitutionally infirm his waiver of his right to
counsel. This argument is likewise contrary to the record.
When Appellant first expressed his desire to represent himself
at the December 20, 2011 hearing, the district court explained
at length what that would require, i.e., presenting motions,
questioning witnesses, and presenting evidence. Then, before
empaneling the jury on the first day of trial, the district
court spent significant time confirming Appellant’s desire to
represent himself and explaining the particulars of each phase
of the trial. We therefore have little trouble concluding that
the court’s colloquy with Appellant was constitutionally
sufficient, and that Appellant certainly made his choice “with
his eyes open.” Faretta, 422 U.S. at 835 (internal quotation
marks omitted). 4
We therefore conclude Appellant’s election to proceed
pro se was not only clear and unequivocal, but also knowing and
4
In attempt to support his argument to the contrary,
Appellant simply cherry-picks snippets of the district court’s
conversation with him. However, when viewing the record as a
whole, it is clear the court’s conduct was more than
constitutionally adequate.
16
intelligent. The record reflects that at the time he waived his
right to counsel, Appellant understood the legal proceedings and
was aware of the nature of the charges against him and the
penalties he faced if convicted, even though he often claimed he
did not understand. On multiple occasions, Appellant was
informed of the perils of serving as his own counsel and exactly
what was involved in undertaking such a task. Despite these
warnings, Appellant elected to proceed pro se. Moreover,
Appellant demonstrated that he was capable of representing
himself by presenting an opening statement, questioning
witnesses, raising objections, and presenting a closing
argument.
IV.
Faced with a difficult situation, the district court
did all it could in this case to protect Appellant’s
constitutional rights. “A trial court evaluating a defendant’s
request to represent himself must traverse a thin line between
improperly allowing the defendant to proceed pro se, thereby
violating his right to counsel, and improperly having the
defendant proceed with counsel, thereby violating his right to
self-representation.” Fields v. Murray, 49 F.3d 1024, 1029 (4th
Cir. 1995) (en banc) (internal quotation marks and alterations
omitted). In traversing this line here, the district court went
so far as to provide Appellant with the added safeguard and
17
assistance of standby counsel, even though it was not
constitutionally required to do so. See United States v.
Beckton, 740 F.3d 303, 307 (4th Cir. 2014) (“[A] pro se
defendant has no right to standby counsel when he chooses to
proceed pro se.”).
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
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