United States v. Balogun ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20855
Criminal Action No. H-97-230
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SEGUNTHANI BALOGUN, aka Fatai Thanni,
Defendant-Appellant,
Appeal from the United States District Court for the
Southern District of Texas
July 18, 2000
Before JONES and BENAVIDES, Circuit Judges, and WALTER,* District
Judge.
PER CURIAM:**
After a jury trial, at which Segunthani Balogun
(“Balogun”) represented himself with “assistance” from appointed
counsel, Balogun was found guilty of conspiracy to possess heroin
with intent to distribute, aiding and abetting the possession of
heroin with intent to distribute, and conspiracy to import heroin.
On appeal, Balogun argues that the district court erred in not
conducting a Faretta inquiry to determine if his waiver of his
*
District Judge for the Western District of Louisiana, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Sixth Amendment right to counsel was voluntary, knowing, and
intentional. Having carefully reviewed the briefs and record, this
court finds that the district court, although understandably
frustrated with Balogun’s behavior, should have conducted the
requisite Faretta inquiry. We, therefore, vacate and remand for a
new trial.
This court reviews the question of whether a waiver of
the Sixth Amendment right to counsel is voluntary, knowing, and
intentional de novo. Brewer v. Williams, 430 U.S. 387, 403-04, 97
S. Ct. 1232, 1241-42 (1977). In Faretta v. California, 422 U.S.
806, 821, 95 S. Ct. 2525, 2534 (1975), the Supreme Court recognized
that the right to self-representation is guaranteed by the Sixth
Amendment. Before granting a request for self-representation,
though, “the trial judge must caution the defendant about the
dangers of such a course of action so that the record will
establish that ‘he knows what he is doing and his choice is made
with eyes open.’” United States v. Martin, 790 F.2d 1215, 1218
(5th Cir. 1986) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at
2541). The district court:
must consider the defendant’s age and
education, and other background, experience,
and conduct. The court must ensure that the
waiver is not the result of coercion or
mistreatment of the defendant, and must be
satisfied that the accused understands the
nature of the charges, the consequences of the
proceedings, and the practical meaning of the
right he is waiving.
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Martin, 790 F.2d at 1218 (internal citations omitted).
The government contends that a Faretta inquiry was not
required because (1) Balogun never unequivocally expressed a desire
to represent himself, and (2) even if he did unambiguously waive
his right to be represented by counsel, Balogun withdrew his waiver
by permitting appointed counsel to participate at trial. Both of
these arguments fail.
The record shows that the district court acknowledged
before the jury that Balogun had invoked his right to self-
representation: “Mr. Balogun has waived his right to be represented
by counsel and has expressed a desire to represent himself.” Thus,
the district court should have conducted a Faretta inquiry to
determine whether Balogun knowingly and intelligently waived his
right to counsel. See United States v. Sandles, 23 F.3d 1121, 1127
(7th Cir. 1994); Keen v. United States, 104 F.3d 1111, 1115 (9th
Cir. 1996); United States v. Balough, 820 F.2d 1485 (9th Cir.
1987).
Furthermore, the “assistance of standby counsel, no
matter how useful to the court or the defendant, cannot qualify as
the assistance of counsel required by the Sixth Amendment.” United
States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991). As a result,
the presence of stand-by counsel is not an effective substitute for
the requisite Faretta inquiry. See United States v. Taylor, 113
F.3d 1136, 1143-44 (10th Cir. 1996)(holding that the trial court
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was required to conduct a Faretta inquiry even though the pro se
defendant received help from standby counsel); Sandles, 23 F.3d at
1127 (“even the capable assistance of standby counsel during trial
cannot function as a substitute for a detailed inquiry into a
defendant’s decision to waive his constitutional right to
counsel.”). Unlike the defendant in Brown v. Wainwright, 665 F.2d
607, 611 (5th Cir. 1982), Balogun never stopped representing
himself at trial. Although appointed counsel assisted Balogun at
various stages, a Faretta inquiry was still required. This court,
therefore, vacates and remands for a new trial.
VACATED and REMANDED.
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