United States v. Thompson ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50351
Plaintiff-Appellee, D.C. No.
v.  CR-03-00847-
BOBBY THOMPSON, ABC-02
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted
November 3, 2009—Pasadena, California
Filed December 3, 2009
Before: Thomas G. Nelson, Jay S. Bybee and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
15867
UNITED STATES v. THOMPSON 15871
COUNSEL
Karen L. Landau, Oakland, California, for defendant-
appellant Bobby Lee Thompson.
15872 UNITED STATES v. THOMPSON
Christine C. Ewell and Lamar Webster Baker, Assistant
United States Attorneys, United States Attorneys Office for
the Central District of California, Los Angeles, California, for
plaintiff-appellee United States of America.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Following a jury trial, Defendant-Appellant Bobby Lee
Thompson (Thompson) was convicted of seven counts related
to his possession, distribution, and manufacture of phencycli-
dine (PCP), and one count of being a felon in possession of
a firearm. Thompson appeals the district court’s order permit-
ting him to represent himself at trial, and the district court’s
subsequent denial of Thompson’s request for a continuance,
and reappointment of counsel. We affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
Thompson was indicted in August 2003. On August 26, he
appeared before a magistrate judge who appointed counsel to
represent him. Thompson’s appointed counsel filed two appli-
cations to secure Thompson’s release on bail, the second of
which was granted on October 23, 2003. After the district
court granted Thompson numerous continuances of the trial
date, it set trial for March 1, 2005.
On February 28, 2005, both Thompson and his counsel
were present at what would become the first of many “final”
1
Thompson also appeals the district court’s denial of his motion to sup-
press a wiretap for lack of necessity and its refusal to hold a hearing pursu-
ant to Franks v. Delaware, 438 U.S. 154 (1978), regarding alleged
omissions from the wiretap affidavit. We affirm the district court’s order
denying the motion to suppress and its refusal to hold a Franks hearing in
a concurrently filed memorandum disposition.
UNITED STATES v. THOMPSON 15873
pretrial conferences. However, the following morning
Thompson failed to appear for trial. His counsel reported to
the court that she had received a telephone call that morning
from Thompson’s wife, who said Thompson had been
brought to a mental health center at 2:30 in the morning
because he was “acting very strange.” Thompson was then
transferred from the mental health center to BHC Alhambra
Hospital, where he spent the next two weeks.
Following Thompson’s discharge, the court appointed Dr.
Saul Faerstein to conduct a psychiatric evaluation for the pur-
pose of determining Thompson’s competency to stand trial.
Dr. Faerstein examined Thompson, interviewed Thompson’s
wife, and reviewed Thompson’s hospital records. Dr. Faer-
stein concluded that Thompson was competent to stand trial,
that Thompson had the mental capacity to understand the
nature of the legal proceedings and charges against him and
to cooperate with his counsel, and that Thompson had the
mental capacity to understand all of his legal rights and to
waive those rights, should he choose to do so.
In light of Dr. Faerstein’s evaluation, the court held a con-
ference on May 9, 2005. At that hearing, the parties agreed
with Dr. Faerstein’s conclusion that Thompson was compe-
tent to stand trial, and the court set a new trial date for May
31, 2005. The court also scheduled another pretrial conference
to take place May 23.
Despite appearing along with counsel at the final pretrial
conference on May 23, Thompson again failed to appear for
trial on May 31. Thompson’s counsel explained that she had
received a telephone call the day before, informing her that
Thompson had again been admitted to the hospital for psychi-
atric evaluation. In light of Thompson’s failure to appear, the
district court scheduled a status conference for June 2, 2005,
at which time the district court would hear the government’s
request to remand Thompson.
15874 UNITED STATES v. THOMPSON
On June 2, Thompson appeared in court. However, his
counsel stated that Thompson was so severely medicated that
she could not communicate with him and requested that he be
remanded into custody so that his medication could be stabi-
lized. Following an attempted colloquy with Thompson, the
court concluded that Thompson was not ready to go to trial
because he was not fit to assist in his defense. The court also
noted the “strange coincidence” stemming from Thompson’s
faithful appearance at all pretrial conferences, followed by his
failure to appear on the date set for trial. Turning to the
remand issue, the court expressed its concern over remanding
Thompson. It noted that it was not clear when Thompson
would be ready for trial, but indicated that given Thompson’s
repeated failure to appear for trial, the court needed more
information. The court determined that in order to have his
medication stabilized and assure Thompson’s appearance at
trial, the proper course was to remand Thompson into custody
and direct the Metropolitan Detention Center (MDC) to con-
duct an evaluation of Thompson’s mental status. Thompson’s
counsel agreed with the court’s assessment that remand was
in Thompson’s best interest. The court remanded Thompson
and scheduled a status conference for June 14 so that it could
reevaluate Thompson’s mental health in light of MDC’s
report. The court also set July 12 as the new trial date.
On June 10, MDC issued a report concluding that Thomp-
son’s “behaviors and presentation are not consistent with any
major mental illness or cognitive disorder, [but] rather they
appeared more consistent with someone who was attempting
to exaggerate or fabricate symptomology.” Based on its pre-
liminary diagnosis, MDC concluded that Thompson exhibited
signs of malingering.
The district court addressed MDC’s evaluation at the June
15 status conference. It determined that in light of that evalua-
tion, and Thompson’s failure to appear for trial, he posed a
flight risk and was to remain in custody until the July 12 trial
date. Following the court’s remand order, Thompson moved
UNITED STATES v. THOMPSON 15875
to relieve his counsel. Finding that nothing in the record sup-
ported Thompson’s position that there had been a lack of
communication with counsel and that his request for new
counsel was another attempt to further delay trial, the court
denied the request. Finally, the court set a final pretrial con-
ference for July 11.
On July 6, Thompson renewed his request for appointment
of new counsel. The district court granted the request,
adjourned the final pretrial conference to August 2, and
scheduled a new trial date for August 9. Despite its earlier
finding that Thompson was purposely delaying trial, the court
continued to accommodate Thompson’s requests for continu-
ances. Thompson asked for two more continuances, which the
court graciously granted, and once again adjourned the trial to
October 4.
On September 30, the court conducted a hearing concern-
ing Thompson’s motion to suppress. After the court denied
the suppression motion, Thompson complained about the per-
formance of his newly appointed counsel. The court found,
once again, that Thompson was attempting to delay trial.
Based on that finding, the court denied Thompson’s request
to relieve counsel. Following a brief recess in which the court
instructed Thompson and his counsel to confer, Thompson’s
counsel told the court that Thompson was prepared to go to
trial on October 4.
At the final pretrial conference on October 3, Thompson
renewed his request to relieve counsel, again citing a lack of
communication. The court engaged in a lengthy inquiry out-
side the government’s presence in which it directed questions
to both Thompson and his counsel. Following that exchange,
the court once again denied Thompson’s request.
The morning of trial, Thompson advised the court that he
wished to represent himself and would need additional time
to prepare for trial. The court conducted a Faretta hearing and
15876 UNITED STATES v. THOMPSON
strongly urged Thompson to reconsider defending himself,
noting multiple times that Thompson was unfamiliar with the
law or court procedure. However, Thompson insisted that he
would be able to learn as long as he had a “few more days to
study.” Thompson also rejected the court’s offer for his cur-
rent counsel to act as standby counsel, and informed the court
that his family was attempting to retain an attorney to help
him. When the court asked Thompson to clarify what role this
other attorney would play, Thompson stated, “It’s my inten-
tion to represent myself, and that was just — you asked me
would I prefer to have [current counsel] as stand-by, and I
said — I said no, and I just mentioned that my family was
inquiring about having someone help me.” Though the court
continued to express its belief that Thompson was simply try-
ing to delay trial, it granted Thompson’s request to represent
himself. The court then continued the trial to October 25,
2005, and set another final pretrial conference for October 17.
At the final pretrial conference on October 17, the court
appointed Richard Novak, Esq. (Novak) to act as standby
counsel and adjourned the trial, yet again, to December 13 to
give Thompson and Novak time to prepare. At an October 31
status conference, the court granted Thompson’s request that
Novak be appointed counsel of record. As a result, the court
again vacated the dates set for pretrial conference and trial,
and set trial for January 31, 2006.
Following two more motions to suppress, the court
adjourned the trial date to August 15, 2006, which was once
again adjourned at the parties’ joint request to October 3. At
an August 21 status conference, Thompson sought to termi-
nate his relationship with Novak and proceed pro se, now for
the second time. Id. The court conducted a second Faretta
hearing and explained to Thompson the disadvantages of self-
representation. Finding Thompson to have knowingly and
voluntarily waived his right to counsel, the court granted his
request to proceed pro se. At a September 18 status confer-
ence, Thompson requested another continuance due to the fact
UNITED STATES v. THOMPSON 15877
that he had not been granted additional hours in the law
library at MDC. The court granted Thompson’s request and
adjourned trial to January 16, 2007, but warned there would
be no further continuances.
On December 6, 2006, the court entertained Thompson’s
request for a newly appointed attorney to serve as standby
counsel. Realizing that it had never relieved Novak of his role
as standby counsel, the court invited Novak to the December
6 hearing “out of an abundance of caution.” While the court
denied Thompson’s request for newly appointed standby
counsel, finding it to be another attempt to delay trial, it per-
mitted Novak to continue serving as standby counsel. Both
Thompson and Novak agreed to that arrangement.
In a moment of prescience, Novak asked the court what
might happen if Thompson decided on the morning of trial
that he no longer wished to represent himself. Although the
court declined to give a definitive answer, it noted that it
would be inclined to deny such a request if made on the eve
of trial or at a time at which Novak was not ready to proceed.
However, the court stated that if Thompson were to make
such a request in a timely manner, it would be inclined to
appoint Novak as counsel of record.
The court held another status conference on January 4,
2007, at which time Thompson asked for another continuance
for the purpose of filing a motion to suppress. The court
denied the request for the continuance, but permitted Thomp-
son to file the motion by January 11.
A final pretrial conference took place on January 12. Not
surprisingly, Thompson told the court that he was not pre-
pared to go to trial because he was still working on the sup-
pression motion due the day before. He asked the court to
either give him more time to file the motion, or to appoint
counsel to represent him at trial. After hearing from the gov-
ernment, the court asked Novak whether he was prepared to
15878 UNITED STATES v. THOMPSON
represent Thompson at trial commencing January 16. While
Novak expressed his continued availability to assist Thomp-
son at trial, he stated that he “wouldn’t be anywhere near . . .
ready” to conduct the trial himself. As a result, the court
denied Thompson’s requests for a continuance and for Novak
to again be counsel of record. In the district court’s view, “the
system has been stymied . . . by the fact that [Thompson] does
not want to exercise his right to trial.” It found that there were
no legitimate reasons for further delay, stating that “it is the
Court’s finding based upon its sincere belief and evaluation of
— firsthand — I’ve been here in the trial court — Mr.
Thompson does not want to go to trial,” and “I am hundred
percent [sic] sure if I appointed new counsel, we would be
back here again in another four months with Mr. Thompson
asking again under Faretta to represent himself because of
breakdown in communications.” The court also noted that it
had made it quite clear to Thompson that no further continu-
ances would be granted, especially on the eve of trial, and that
he had ample time to prepare given the number of continu-
ances to date. After the court denied Thompson’s requests, it
settled on a final voir dire with the parties and adjourned for
the commencement of trial.
In a move that had become all too familiar to both the court
and counsel, Thompson failed to appear for trial on January
16. Rather, on the morning that trial was set to begin, doctors
at MDC informed the court that after the January 12 final pre-
trial conference, Thompson was complaining of depression
and of experiencing auditory hallucinations. Though he
refused to appear for trial, Thompson agreed to attend a hear-
ing for the purpose of discussing his mental health (the Janu-
ary 16 Hearing). Well aware that Thompson was representing
himself, the court asked whether Thompson would like coun-
sel appointed for the purpose of the January 16 Hearing.
Thompson indicated that he would, and the court appointed
Novak to represent Thompson at the January 16 Hearing.
In the district court’s view, the January 16 Hearing con-
cerned “the issue of [Thompson’s] mental health readiness for
UNITED STATES v. THOMPSON 15879
trial.” The court asked three MDC doctors to testify concern-
ing their observations of Thompson following the January 12
final pretrial conference. As a result of that testimony, the
court ordered the medical/psychological staff at MDC to sub-
mit a report by January 24 detailing Thompson’s response to
treatment. MDC’s report concluded that there “is no evidence
that Thompson is suffering from disruption in his thought pro-
cess or hallucinations of any type,” and that Thompson “is
functioning within normal limits.”
The January 16 Hearing concluded with the district court
adopting a deliberate and careful assessment of the way in
which to proceed. Addressing counsel’s concerns about
Thompson’s continued self-representation, the district court
stated that it was not making a finding, at that time, that it was
necessary to revoke Thompson’s pro se status and reinstate
Novak as counsel of record. Rather, the court stated that any
decision concerning Thompson’s continued self-
representation would need to be made in light of further
updates regarding Thompson’s mental health, which it
ordered from both Dr. Faerstein and MDC. Again, out of an
abundance of caution, the court asked Novak to pursue a par-
allel track should the court later determine that Thompson
was not fit to represent himself at trial.
At the next status conference held on January 25, the gov-
ernment moved to reschedule the trial date as soon as possi-
ble. It argued that a further evaluation as to Thompson’s
mental health was unnecessary in light of recently recorded
telephone calls it had obtained, which demonstrated Thomp-
son was intentionally feigning mental illness in order to delay
trial. The court declined ruling on the motion at that time, and
determined to hold another mental health hearing on February
8 (the February 8 Hearing).
At the February 8 Hearing, the court began,
The hearing that we’re about to have this afternoon,
which is a continuation, in essence, of an earlier
15880 UNITED STATES v. THOMPSON
hearing at which doctors testified, the Court had not
deemed to be a competency hearing; but rather, in
the minute order, I think I indicated that these were
hearings to determine whether the Defendant’s men-
tal state would allow us to proceed with trial.
The court echoed this sentiment one more time, stating that
“this hearing, certainly, is not a competency hearing.” After
hearing testimony once again from MDC doctors, including
its own review of the telephone calls the government submit-
ted, the court concluded that Thompson had been malingering
when he feigned mental illness after the January 12 confer-
ence, and that he did so for the purpose of delaying trial on
January 16. The court also expressed the need to issue a
detailed order consisting of its factual findings.
On February 9, in a thorough and well-documented order,
the district court concluded that it was unnecessary to conduct
a full competency hearing, that Thompson was malingering
his mental health symptoms, and that it had been Thompson’s
purpose to delay his trial. Finally, the court set trial for Febru-
ary 13, 2007.
Following a three-day trial, a jury convicted Thompson on
all counts. While Novak remained standby counsel during the
trial, Thompson represented himself. Thompson participated
in jury selection, engaged in cross-examination of witnesses,
and delivered a brief closing argument.
STANDARD OF REVIEW AND JURISDICTION
We have jurisdiction pursuant to 28 U.S.C. § 1291. While
we have not clarified the standard of review of a district
court’s order allowing a defendant to represent himself at
trial, see United States v. Kaczynski, 239 F.3d 1108, 1116 (9th
Cir. 2001), the parties are in agreement that an abuse of dis-
cretion standard applies in this case.2In any event, we review
2
The parties seem to base their agreement on our recent decision in
United States v. Ferguson, 560 F.3d 1060, 1070 n.6 (9th Cir. 2009), where
UNITED STATES v. THOMPSON 15881
the district court’s factual findings underlying its decision for
clear error. Kaczynski, 239 F.3d at 1116. We review the deci-
sion to grant or deny a continuance that arguably implicates
a defendant’s right to counsel for abuse of discretion. United
States v. Garrett, 179 F.3d 1143, 1144-45 (9th Cir. 1999) (en
banc).
DISCUSSION
Thompson raises two issues on appeal. First, he argues that
the district court erred when it allowed him to exercise his
right to self-representation on August 21, 2006. He asserts
that the district court would have reached a different conclu-
sion on that issue if Indiana v. Edwards, 128 S. Ct. 2379(2008), which was decided after Thompson’s trial, had been
decided before the district court ruled on his request to repre-
sent himself. Second, Thompson contends that the district
court erred when it refused to reappoint him counsel, which
would also have required that the court grant him another trial
continuance.
A. Competency and Self-Representation
1. Indiana v. Edwards
In Indiana v. Edwards, the Supreme Court addressed
whether the standard for assessing a defendant’s competency
to stand trial applies to the question of mental competence for
purposes of self-representation at trial. 128 S. Ct. at 2383.
Prior to Edwards, we held that where a defendant was found
competent to stand trial under Dusky v. United States, 362
U.S. 402 (1960) (per curiam), and had voluntarily and intelli-
we instructed that, on remand, the district court’s decision to allow a
defendant who lacks mental competency to conduct trial proceedings was
a "discretionary decision." We see no reason to depart from that formula-
tion and thus apply an abuse of discretion standard here.
15882 UNITED STATES v. THOMPSON
gently waived his Sixth Amendment right to counsel under
Faretta v. California, 422 U.S. 806 (1975), a court was
required to permit the defendant to proceed pro se. See United
States v. Hernandez, 203 F.3d 614, 620 (9th Cir. 2000). In
other words, prior to Edwards, “a defendant’s competence to
waive the right to counsel [was] measured by the same stan-
dard under which competence to stand trial [was] evaluated.”
Id. at 621 n.8. But Edwards considered that issue to be a ques-
tion the Court had not resolved. 128 S. Ct. at 2383.
[1] “[A]ssum[ing] that a criminal defendant has sufficient
mental competence to stand trial (i.e., the defendant meets
Dusky’s standard) and that the defendant insists on represent-
ing himself during that trial,” id. at 2385, Edwards held that
states are free to assess the defendant’s competence for pur-
poses of self-representation under a different competency
standard, id. at 2386. The Court explained that
the Constitution permits judges to take realistic
account of the particular defendant’s mental capaci-
ties by asking whether a defendant who seeks to con-
duct his own defense at trial is mentally competent
to do so. That is to say, the Constitution permits
States to insist upon representation by counsel for
those competent enough to stand trial under Dusky
but who still suffer from severe mental illness to the
point where they are not competent to conduct trial
proceedings by themselves.
Id. at 2387-88 (emphasis added). Edwards did not adopt a
specific standard, id. at 2388, but instead recognized that the
trial judge “will often prove best able to make more fine-
tuned mental capacity decisions, tailored to the individualized
circumstances of a particular defendant,” id. at 2387. Thus,
after Edwards, at least one relevant consideration for a district
court, should it choose to require a higher level of competence
for self-representation, is whether a defendant who is other-
wise able to satisfy the Dusky competence standard may nev-
UNITED STATES v. THOMPSON 15883
ertheless be “unable to carry out the basic tasks needed to
present his own defense without the help of counsel.” Id. at
2386.
2. United States v. Ferguson
[2] We next consider the impact of Edwards in this case.
In United States v. Ferguson, we considered whether Edwards
would have affected the district court’s pre-Edwards decision
to allow a defendant to proceed pro se. 560 F.3d at 1067-70.
In answering this question affirmatively, we found that many
statements in the record suggested the district court might
have ruled differently under an Edwards standard. Id. at 1070
n.6. First, we found that the pre-Edwards psychiatric reports
were “of limited value,” because they did not consider
“whether Defendant is able ‘to carry out the basic tasks
needed to present his own defense without the help of coun-
sel.’ ” Id. at 1068 (quoting Edwards, 128 S. Ct. at 2386). Sec-
ond, we noted that the defendant’s behavior was “decidedly
bizarre.” Id.; see also id. at 1068-69 (discussing defendant’s
demand that counsel follow six made-up “duties,” his insis-
tence that the case be settled “in the private,” and his request
to dismiss the case pursuant to the Uniform Commercial
Code). Finally, we addressed the defendant’s behavior at trial
and sentencing, in which he did “absolutely nothing.” Id. at
1069. We also noted that both the district court and the parties
repeatedly referred to the defendant’s “absolute right” to rep-
resent himself, once declared competent to stand trial. Id. at
1067. We considered it particularly troubling that the district
court had stated prior to trial that “it would be desirable to
have [the defendant] declared incompetent,” and that “it is ter-
rible to let [the defendant] represent himself,” as well as the
district court’s comments at sentencing that it had “never
heard of an example of somebody that behaved at trial the
way [the defendant] had.” Id. at 1069 (internal quotation
marks omitted). We thus remanded to the district court “for
the limited purpose of determining whether Edwards would
have affected the district court’s decisions.” Id. at 1070. In
15884 UNITED STATES v. THOMPSON
doing so, we held that “Edwards does not compel a trial court
to deny a defendant the exercise of his or her right to self-
representation; it simply permits a trial court to require repre-
sentation for a defendant who lacks mental competency to
conduct trial proceedings.” Id. at 1070 n.6.
[3] This case is markedly different from Ferguson. Unlike
Ferguson, here the district court held a hearing to determine
whether Thompson’s mental state would permit the court to
proceed with trial, and expressly noted that the hearing was
not a competency hearing. Thus, there is no indication that the
district court conflated the standards for assessing Thomp-
son’s competency to stand trial and his competency to repre-
sent himself at trial. Rather, the court noted several times that
both the January 16 Hearing and the February 8 Hearing con-
cerned Thompson’s readiness for trial, not his competency to
stand trial. At the January 16 Hearing, the district court also
expressed its willingness to revoke the defendant’s pro se sta-
tus, but declined to do so in the absence of further information
from doctors. That same willingness was conspicuously
absent in Ferguson, where the trial court candidly expressed
its perceived inability to do anything but let the defendant rep-
resent himself once he was determined to be competent. Here,
by contrast, the court conducted two evidentiary hearings in
order to inform itself concerning Thompson’s trial readiness.
Based on those hearings, the court issued detailed findings of
fact that Thompson was simply attempting to delay trial. The
record provides ample support for those findings.
[4] The record is also bereft of any statement by either the
district court or the parties that because there was no dispute
about Thompson’s competency to stand trial, he had an “abso-
lute right” to defend himself. Compare Ferguson, 560 F.3d at
1068. Moreover, Thompson’s behavior throughout the pro-
ceedings was not “decidedly bizarre.” Rather, he engaged in
lengthy colloquies with the district court in which he seemed
acutely aware of what was occurring. Indeed, the district court
noted the “strange coincidence” in connection with Thomp-
UNITED STATES v. THOMPSON 15885
son’s repeated failure to appear for trial while he was faith-
fully present at all other court proceedings. Such coincidences
are consistent with the district court’s finding that Thompson
was malingering in order to delay trial.
Finally, while some of the psychiatric reports considered
Thompson’s mental competence to work with counsel at trial
—the pre-Edwards standard—the February 8 Hearing pro-
ceeded under the assumption that Thompson would be repre-
senting himself. Therefore, the district court’s decision to
proceed with trial focused on Thompson’s competence to rep-
resent himself in trial proceedings. The record also indicates
that contrary to the actions of the defendant in Ferguson,
Thompson participated extensively throughout his trial.
[5] Therefore, we see no reason to remand to the district
court in light of Edwards. Indeed, the district court did exactly
what Edwards and Ferguson instruct; that is, it determined
whether Thompson lacked the mental capacity to conduct trial
proceedings. The district court’s conclusion that Thompson
had such a capacity was not an abuse of discretion.
B. Continuance and Reappointment of Counsel
Thompson argues that the district court erred when it
denied his request for reappointment of counsel at the final
pretrial conference on January 12. After noting that it had
granted at least twelve or thirteen continuances at Thomp-
son’s request, the district court treated Thompson’s latest
request as a request for a continuance based on the fact that
Thompson was not prepared to represent himself. The district
court denied the request.
[6] The district court’s denial of Thompson’s request can
be analyzed as either a denial of a continuance or as a denial
of a motion to substitute counsel. United States v. Nickerson,
556 F.3d 1014, 1020 (9th Cir. 2009). “A [d]istrict [c]ourt’s
primary reasons for not allowing a defendant new counsel
15886 UNITED STATES v. THOMPSON
may determine which analysis to apply.” United States v.
Nguyen, 262 F.3d 998, 1001-02 (9th Cir. 2001). Here, the dis-
trict court stated multiple times that it was denying Thomp-
son’s “request for a continuance” based on its well-founded
belief that Thompson was deliberately trying to delay trial.
Though it also remarked that it was “denying the request for
counsel,” it based its denial on the fact that no counsel could
be ready for trial by January 16, and proceeded to recount the
litany of continuances previously granted to Thompson for the
purpose of giving him time to prepare. Thus, we consider the
district court to have denied Thompson a continuance.
[7] When a decision to grant or deny a continuance impli-
cates a defendant’s Sixth Amendment right to counsel, a court
must balance several factors to determine if the denial was
“ ‘fair and reasonable.’ ” United States v. Studley, 783 F.2d
934, 938 (9th Cir. 1986) (quoting United States v. Leavitt, 608
F.2d 1290, 1293 (9th Cir. 1979) (per curiam)). These factors
include:
[1] whether the continuance would inconvenience
witnesses, the court, counsel, or the parties;
[2] whether other continuances have been granted;
[3] whether legitimate reasons exist for the delay;
[4] whether the delay is the defendant’s fault; and
[5] whether a denial would prejudice the defendant.
Studley, 783 F.2d at 938. “When denying a continuance, espe-
cially one that arguably implicates the defendant’s right to
counsel, the district court should summarize in the record its
reasons for the denial.” Garrett, 179 F.3d at 1147. However,
“a continuance may be denied even when that denial results
in the defendant’s being unrepresented at trial.” Studley, 783
F.2d at 938 (internal quotation marks omitted).
[8] “In addition, a court must be wary against the ‘right of
counsel’ being used as a ploy to gain time or effect delay.”
United States v. Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987),
UNITED STATES v. THOMPSON 15887
overruled on other grounds by United States v. Heredia, 483
F.3d 913 (9th Cir. 2007). As a result, “a court may force a
defendant to proceed pro se if his conduct is ‘dilatory and hin-
ders the efficient administration of justice.’ ” United States v.
Meeks, 987 F.2d 575, 579 (9th Cir. 1993) (quoting Kelm, 827
F.2d at 1322).
[9] On January 12, 2007—three and a half years after the
initial pretrial conference—the district court held a final pre-
trial conference. At that conference, which occurred the day
before trial was scheduled to begin, Thompson stated that he
was not prepared to go to trial and asked the court to reap-
point counsel. The district court’s decision to deny that
request was more than fair and reasonable. Indeed, we have
seldom reviewed a record of proceedings overseen with the
level of patience and conscientiousness demonstrated by our
able district court colleague in this case. According to the
record, the court’s decision to deny the continuance was based
on the numerous continuances previously granted, Thomp-
son’s lack of good faith, the court’s own prior warnings that
no more continuances would be granted, the fact that any fur-
ther continuance meant Thompson would remain in custody,
and the court’s near certain belief that Thompson would even-
tually ask to represent himself again in order to delay trial.
Thompson’s conduct up to that point was clearly “dilatory”
and the district court properly noted the manner in which
Thompson had “stymied” the system. In addition, the court
had appointed Novak as standby counsel for the trial. Consid-
ering all these circumstances, the district court did not err in
denying another continuance. See Studley, 783 F.2d at 939(affirming denial of continuance where denial resulted in the
defendant being unrepresented, trial had been delayed three
months after the defendant’s arrest, request for continuance
had not been made in good faith, trial had already been con-
tinued several times, and defendant would not have obtained
counsel had continuance been granted); United States v. Rob-
inson, 967 F.2d 287, 291 (9th Cir. 1992) (same where defen-
dant had been given two previous continuances, district court
15888 UNITED STATES v. THOMPSON
cautioned the defendant before he requested relief of counsel,
and court appointed standby counsel during the trial); Garrett,
179 F.3d at 1146-47 (same where record demonstrated the
“patience and consideration” the district court afforded to the
defendant over a one year period and district court stated that
the motion for continuance was being made to delay trial).
[10] Moreover, there is no dispute in the record that
Thompson knowingly and intelligently waived his right to
counsel after being fully advised by the district court of the
dangers of proceeding pro se. Cf. Kelm, 827 F.2d at 1322 (dis-
trict court properly denied a trial continuance to a defendant
who persistently refused to accept an appointed attorney, hire
his own attorney, or expressly waive his right to an attorney);
Meeks, 987 F.2d at 579 (court erred in denying the defen-
dant’s motion to substitute counsel where the court did not
make the defendant aware of the dangers of proceeding pro se
such that the defendant did not knowingly and intelligently
waive his right to counsel). Indeed, Thompson does not dis-
pute his knowing and intelligent waiver. Rather, he argues
that under Indiana v. Edwards the district court was com-
pelled to deny his request for self-representation or reappoint
counsel. As we explained above, Edwards does not so hold.
See Ferguson, 560 F.3d at 1070 n.6.
Finally, Thompson’s reliance on Menefield v. Borg, 881
F.2d 696 (9th Cir. 1989), is misplaced. In Menefield, we con-
sidered “whether the trial court erred in denying [the defen-
dant’s] post-trial request for appointment of counsel, and for
a continuance which would have enabled appointed counsel
to prepare an adequate motion.” 881 F.2d at 699-700. We
went on to hold that “an accused who requests an attorney at
the time of a motion for a new trial is entitled to have one
appointed, unless the government can show that the request is
made for a bad faith purpose.” Id. at 701. However, we
expressly recognized that “[t]here are times when the criminal
justice system would be poorly served by allowing the defen-
dant to reverse his course at the last minute and insist upon
UNITED STATES v. THOMPSON 15889
representation by counsel.” Id. at 700 (citing Studley and
Leavitt). In line with our precedent, we pointed out, for exam-
ple, that when “for purposes of delay, criminal defendants
have sought continuances on the eve of trial, we have refused
to disrupt the proceedings to accommodate their wishes.” Id.That is precisely the situation presented here.
Accordingly, the district court did not abuse its discretion
in denying Thompson’s request for a continuance.
CONCLUSION
[11] For the reasons described, we affirm the district
court’s orders permitting Thompson to represent himself at
trial and denying his request for a continuance.
AFFIRMED.