United States v. Jason Schaefer ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30266
Plaintiff-Appellee,
D.C. No.
v. 3:17-CR-00400-HZ-1
JASON PAUL SCHAEFER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Argued and Submitted August 13, 2021
Seattle, Washington
Filed September 16, 2021
Before: David M. Ebel, * Carlos T. Bea, and Lawrence
VanDyke, Circuit Judges.
Opinion by Judge Bea
*
The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. SCHAEFER
SUMMARY **
Criminal Law
The panel affirmed a criminal judgment in a case in
which a jury convicted Jason Schaefer of a variety of
offenses, including assault on a federal officer (18 U.S.C.
§ 111(a)–(b)) and possession of an unregistered destructive
device (26 U.S.C. §§ 5841, 5861(d), 5871).
The panel held that the district court did not err in finding
that Schaefer knowingly and intelligently waived his right to
counsel. Schaefer did not strongly dispute that during the
Faretta hearing on his request to proceed pro se, the district
court ensured that he understood the nature of the charges
and the dangers and disadvantages of self-representation.
Whether he understood “the possible penalties” was more
challenging. This court hadn’t previously directly
encountered a circumstance in which the district court
inaccurately identified the defendant’s minimum sentence.
Declining to adopt a rigid rule, the panel saw no reason to
apply a different rule to the defendant’s knowledge of the
minimum penalties than that which this court applies to the
defendant’s knowledge of the maximum penalties, and
therefore held that to find a defendant knowingly and
intelligently waived his right to counsel, he must have
substantially understood the severity of his potential
punishment under the law and the approximate range of his
penal exposure. Applying that standard, the panel found that
Schaefer substantially understood the grave severity of his
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SCHAEFER 3
potential punishment and the protracted range of penal
exposure.
The panel held that the district court, which was mindful
of Schaefer’s conduct throughout, did not abuse its
discretion in declining to reappoint counsel once trial
commenced and the jury was sworn. About a month after
Schaefer was deemed competent and waived his right to
counsel, the parties proceeded to trial. Schaefer represented
himself throughout voir dire, but directly after the jury was
sworn, he abruptly changed his mind and attempted to
reinvoke his right to counsel. The panel wrote that (1) the
district court properly found that reappointment of counsel
to represent him would have caused delay because Schaefer
made the request on the first day of trial after the jury was
already impaneled; (2) the district court properly found that
Schaefer’s conduct was dilatory in attempting to manipulate
the court and his own counsel; and (3) the last-minute
request was entirely within Schaefer’s control.
The panel held that the district court did not abuse its
discretion in denying Schaefer’s motion to compel the
Government to produce its trial materials, which Schaefer
sought after it was discovered post-trial that the
Government’s legal assistant previously worked for the state
public defender’s office and, in that capacity, participated in
a “substantive interview” with Schaefer in connection with
a state prosecution that occurred a few months before the
events giving rise to the instant charges. Schaefer contended
that access to the materials could have revealed a violation
of his Fifth Amendment right to due process or Sixth
Amendment right to counsel. The panel held that the district
court did not clearly err in finding, and Schaefer did not
adequately refute, that there was no evidence of tainted
material at trial. The panel noted as well that the alleged
4 UNITED STATES V. SCHAEFER
misconduct focused solely on the prior state prosecution,
which had nothing to do with obtaining the explosive
materials involved in this case.
The panel held that Schaefer’s homemade explosive
device constitutes a “destructive device” under 18 U.S.C.
§ 921(a)(4) and 26 U.S.C. § 5845(f), rejecting Schaefer’s
argument that the statutes were intended to cover only
“military-type weapons.”
The panel held that the district court did not violate
Schaefer’s rights under the Speedy Trial Act. The panel
wrote that Schaefer neither alleged that a single day was
improperly excluded from the 70-day limit set forth in
18 U.S.C. § 3161(h) nor provided relevant authority to
support his contention that the district court somehow
“constructively denied” him his right to a speedy trial.
COUNSEL
Susan Russell (argued), Assistant Federal Public Defender,
Office of the Federal Public Defender, Portland, Oregon; for
Defendant-Appellant.
Amy E. Potter (argued), Deputy Criminal Chief, Criminal
Appeals Section; Scott Erik Asphaug, Acting United States
Attorney; United States Attorney’s Office, Eugene, Oregon;
for Plaintiff-Appellee.
UNITED STATES V. SCHAEFER 5
OPINION
BEA, Circuit Judge:
The Sixth Amendment guarantees a criminal defendant
the right to counsel. This familiar privilege is so culturally
well-known that we readily understand its advantageous
purpose. But its converse is less well-known: the Sixth
Amendment also guarantees the criminal defendant the right
to proceed without counsel. This privilege is equally as
important. Indeed, “[t]he Supreme Court has stated that,
even if ‘the right of self-representation is a right that when
exercised usually increases the likelihood of a trial outcome
unfavorable to the defendant,’ it merits the same vigilant
protection as other constitutional rights.” United States v.
Gerritsen, 571 F.3d 1001, 1008 (9th Cir. 2009) (quoting
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)). We
should be careful, then, not to disregard this constitutional
right because “[w]hen the administration of the criminal law
. . . is hedged about as it is by the Constitutional safeguards
for the protection of an accused, to deny him in the exercise
of his free choice the right to dispense with some of these
safeguards . . . is to imprison a man in his privileges and call
it the Constitution.” Faretta v. California, 422 U.S. 806, 815
(1975) (citation omitted). Today, we are tasked with
examining the imperative right to proceed with and without
counsel.
This challenging task began with a menacing act. In
October 2017, Jason Schaefer ignited a homemade explosive
device when officers attempted to arrest him. The
Government charged him with a variety of crimes, including
assault on a federal officer and possession of a “destructive
device.” Schaefer then spent the next eighteen months with
a rotating cast of counsel, firing one after the other. About a
month before trial, however, Schaefer reached a different
6 UNITED STATES V. SCHAEFER
decision. He decided that he was better off on his own,
without a lawyer to represent him, and thus sought to
proceed pro se. After holding a hearing pursuant to Faretta
v. California, 422 U.S. 806 (1975), the district court
acquiesced and ruled that Schaefer unequivocally,
knowingly, and intelligently waived his right to counsel. All
was well again—for the moment. Although trial
commenced with Schaefer representing himself, he abruptly
changed his mind once the jury was empaneled and
attempted to reinvoke his right to counsel. Finding that
Schaefer was attempting to manipulate the legal proceedings
by his demand for counsel to represent him, the district court
denied the request but continued the appointment of advisory
counsel to Schaefer, so to provide him with the availability
of legal advice. A jury ultimately convicted him of all
counts. We now examine, among other issues, whether
Schaefer’s constitutional right to self-representation and
right to counsel were violated.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Schaefer’s prior state prosecution
Schaefer had a long history of mental illness and had
been hospitalized prior to the instant prosecution. In April
2017, for example, the local police received a tip that
Schaefer “had poured something outside of [his] garage that
was a chemical that caused concern to the apartment
complex.” 1 Upon arriving at the scene, Schaefer “became
confrontational with law enforcement and was angry and
threatened to kill the apartment complex manager.” Officers
arrested him and placed him on a mental health hold.
1
Schaefer later admitted that he had used liquid mercury, a highly
toxic substance, “as a deterrent to keep people from entering his garage.”
UNITED STATES V. SCHAEFER 7
Officers quickly discovered that he was wearing a “body
armor vest” and, because he had a prior felony conviction in
New York, charged him with being a Felon in Possession of
Body Armor under Oregon state law. He was convicted and
sentenced to probation.
B. Schaefer detonates an explosion, initiating federal
prosecution
Later that same year, in September 2017, the FBI
received a tip that Schaefer had purchased a variety of
unusual chemicals. FBI Special Agent Mutchler reviewed
the list of chemicals and recognized that several of them
could be combined to manufacture an improvised explosive
device.
On October 11, 2017, the FBI obtained a search warrant
for Schaefer’s home and storage unit. SA Mutchler arranged
to have Schaefer attend a probation meeting that morning
away from Schaefer’s home. SA Mutchler attended the
meeting and told Schaefer about the search warrant.
Schaefer then left, and the officers who had been surveilling
him were unable to follow him. By the time Schaefer arrived
at his home, officers were already executing the search
warrant. Officers attempted to arrest Schaefer at that time,
but he refused to comply. Schaefer yelled at the officers—
“Oh, great. Now we’re all going to die.”—and sped away
again.
Officers chased after Schaefer and finally caught up to
him once he became stuck in traffic. Officers approached
and ordered him out of his vehicle. In response, Schaefer
grabbed a cigarette package that contained triacetone
triperoxide (“TATP”) and threatened the officers: “I’ll do it.
I’ll do it. I’ll blow us all up.” Schaefer then lit the cigarette
8 UNITED STATES V. SCHAEFER
package, causing an explosion. 2 As a result of the blast,
Schaefer lost three fingers, and one of the officers suffered
from a concussion and temporary deafness.
C. Schaefer requests self-representation during pre-
trial proceedings
Schaefer was taken to a hospital in police custody. On
October 24, 2017, he was indicted by a grand jury for
Assault on a Federal Officer (two counts), and Using an
Explosive to Commit a Federal Felony. 3 During the pre-trial
proceedings that followed the district court appointed—and
Schaefer terminated—several attorneys. The district court
appointed the first attorney to represent him at the initial
appearance on October 19, 2017. After the first attorney
moved to withdraw in January 2018, the district court
granted the request and appointed the second attorney to
represent him. The district court also appointed another
attorney (the third) as co-counsel on May 22, 2018.
However, discord followed soon thereafter.
On May 29, 2018, the second and third attorneys moved
to withdraw based on an “unreconcilable [sic] conflict of
interest.” 4 The district court held a hearing the next day,
2
Forensic analysts later concluded that the cigarette package
contained TATP, a high explosive that can be made from hydrogen
peroxide, acetone, and sulfuric acid. Those chemicals, and a few
additional chemicals, were found in Schaefer’s home.
3
The initial indictment charged Schaefer under 18 U.S.C. §§ 111(a),
111(b), and 844(h). The prosecution filed three superseding indictments
before trial.
4
Portions of the excerpts of record submitted by the parties were
filed under seal. We include only quotations from the sealed record that
UNITED STATES V. SCHAEFER 9
ultimately granting the motion and appointing the fourth
attorney to represent him.
In June 2018, the fourth attorney moved for a
competency evaluation of Schaefer. The district court held
a hearing, reviewed the competency evaluation in the expert
report, and concluded that Schaefer was competent to stand
trial. The fourth attorney then moved to withdraw because
he disagreed with certain “frivolous” motions that Schaefer
had wanted to file and because Schaefer had filed a
complaint against him with the State Bar. Schaefer informed
the district court that he was “tempted to proceed pro se”
because he had “conducted an extensive amount of research”
for the case. The district court cautioned him, however, that
proceeding pro se was not in his best interest. Although the
district court denied the fourth attorney’s motion to
withdraw, it appointed the fifth attorney, Lisa Ludwig, as co-
counsel.
But in November 2018, the fourth attorney again moved
to withdraw. The district court granted the motion this time
and elevated Ms. Ludwig to counsel representing Schaefer.
Ms. Ludwig informed the district court that she was “happy
to continue as Mr. Schaefer’s attorney,” but that she was “not
going to be able to competently be prepared to take over this
whole case and be ready to go to trial” before the set trial
date in January 2019. Schaefer objected to a continuance,
insisting that the district court maintain the existing trial
schedule. In response, the district court explained the
consequences of this decision:
do not reveal importantly confidential information. To the limited extent
the sealed record is quoted in this opinion, we hereby deem it unsealed.
10 UNITED STATES V. SCHAEFER
So what that means is that Ms. Ludwig
will be trying the case ill prepared. And you
will have to accept that and whatever result
comes of that.
And what you cannot do is come back and
say, “I want to challenge”—if you get
convicted—“I want to challenge the
conviction because my lawyer wasn’t
prepared.” Because what’s going to happen
is I’m going to make a very clear record that
says Ms. Ludwig put on the record she is not
ready to try this case. You are forcing her to
proceed ill prepared, and you will live with
whatever the consequences of her being ill
prepared are.
So just think about that for a minute. . . .
And if you want your trial on the date that it’s
scheduled, you get it, with that agreement,
with that understanding.
Schaefer responded, “I’m not going to waive my speedy trial
right in lieu of my right to competent and effective assistance
of counsel.” The district court ultimately kept the existing
trial date, but appointed Tiffany Harris (the sixth attorney)
to serve as Ms. Ludwig’s co-counsel.
In December 2018, the Government filed a motion for a
second competency evaluation because Schaefer had filed
“unusual” motions and appeared “unhinged.” The district
court ordered the competency evaluation and continued the
trial date, which had been set for the following month. On
April 2, 2019, the district court held a hearing and
determined—for the second time—that Schaefer was
UNITED STATES V. SCHAEFER 11
competent to stand trial. During the same hearing, the
district court also addressed Ms. Ludwig and Ms. Harris’s
motion to withdraw on the ground that Schaefer had
“wishe[d] to discharge current counsel [that represented
him] and seek the appointment of standby counsel.”
Schaefer confirmed, “I would appreciate standby counsel,
someone who acts in an advisory capacity.” 5 As a result, the
district court held a hearing to determine whether Schaefer
knowingly and intelligently waived his constitutional right
to counsel, pursuant to Faretta v. California, 422 U.S. 806(1975).
The district court first asked the Government to explain
“the nature of the charges” in the then-operative indictment
and “the possible consequences of being convicted of those
charges.” The Government specified that one of the counts,
the violation of 18 U.S.C. § 924(c)(1)(B)(ii), carried a
mandatory minimum of thirty years and a potential
maximum of life. The Government also recounted the
penalties associated with three other counts, none of which
carried mandatory minimums. But, not anticipating a
Faretta hearing that day, the Government was unable to
recall the penalties or enhancements associated with the
remaining two counts of Using and Carrying an Explosive to
Commit a Federal Felony in violation of 18 U.S.C.
§ 844(h)(1) and § 844(h)(2). The district court emphasized
that Schaefer faced a mandatory minimum of thirty years
and a potential maximum of life. The district court also
5
In contrast to the phrases “counsel” and “counsel to represent” the
defendant, which we use interchangeably here, the term “standby
counsel” describes “the situation when a pro se defendant is given
technical assistance by an attorney in the courtroom, but the attorney
does not participate in the actual conduct of the trial.” United States v.
Salemo, 81 F.3d 1453, 1464 (9th Cir. 1996).
12 UNITED STATES V. SCHAEFER
advised that “it is possible that sentences could run
consecutively to each other.” In fact, a violation of either
18 U.S.C. § 844(h)(1) or § 844(h)(2) carries a mandatory
term of ten years that “shall not . . . run concurrently with
any other term of imprisonment including that imposed for
the felony in which the explosive was used or carried.” After
underscoring the benefits of retaining counsel to represent
him, the district court concluded that Schaefer had
“knowingly, voluntarily, and intelligently waiv[ed] his right
to counsel” because he had “indicated that he understands
. . . the nature of those charges against him, what the
elements of those particular charges are, and the possible
penalties he may face.”
At this time, the district court also addressed Schaefer’s
request for standby counsel. Schaefer explained that he had
filed a malpractice suit against Ms. Ludwig and that he was
“not comfortable with her proceeding as standby counsel.”
Recognizing that Ms. Ludwig and Ms. Harris “ha[ve] the
highest level of familiarity with this case,” the district court
denied the request and retained them as standby counsel.
The district court cautioned, however, that “standby counsel
is not going to be prepared to try this case in the same way
that an actual lawyer would be prepared to try this case.”
Two weeks later, on April 16, 2019, Schaefer requested
different standby counsel. The district court explained the
difficulty behind the request, given that trial was scheduled
to begin in a few weeks. Schaefer maintained his request for
different standby counsel, but adamantly objected to
continue the scheduled trial date:
[M]y interests on this matter are . . . first and
foremost, going to trial May 6th; secondly,
having standby counsel; and after that, it’s
kind of anything goes. If the Courts can’t
UNITED STATES V. SCHAEFER 13
appoint standby counsel, they can’t appoint
standby counsel. If the Courts see fit that
only Lisa Ludwig and Tiffany Harris can
continue as standby counsel to meet the May
6th trial date, that’s the decision that the
Courts reach.
The district court ultimately denied the request for different
standby counsel because it could not find another attorney
on such short notice and ordered that Ms. Ludwig and
Ms. Harris remain as standby counsel.
On April 18, 2019, the Government filed the third—and
final—superseding indictment, charging Schaefer with eight
counts: (1–2) Assault on a Federal Officer, 18 U.S.C.
§ 111(a)–(b); (3) Carrying and Using a Destructive Device
During and in Relation to a Crime of Violence, 18 U.S.C.
§ 924(c)(1)(B)(ii); (4) Using an Explosive to Commit a
Federal Felony, 18 U.S.C. § 844(h)(1); (5) Carrying an
Explosive During the Commission of a Federal Felony,
18 U.S.C. § 844(h)(2); (6) Unlawful Transport of Explosive
Materials, 18 U.S.C. §§ 842(a)(3)(A), 844(a); (7) Possession
of an Unregistered Destructive Device, 26 U.S.C. §§ 5841,
5861(d), 5871; and (8) Felon in Possession of Explosives,
18 U.S.C. §§ 842(i)(1), 844(a). At his arraignment, Schaefer
informed the district court that he had read the new
indictment, understood the charges, and waived a full
reading. When the district court asked the Government to
summarize the potential penalties, Schaefer responded, “I
don’t need to hear that, Your Honor. I understand the
penalties quite well.”
14 UNITED STATES V. SCHAEFER
D. Schaefer changes his mind and seeks counsel
during trial
Trial commenced on May 6, 2019. Schaefer proceeded
pro se, with standby counsel at his side. After the jury was
sworn, however, Schaefer requested that Ms. Ludwig
“assume the position of representing counsel.” Ms. Ludwig
informed the district court that she and Ms. Harris had
“prepare[d] for the possibility that [they] would need to take
over in the middle of trial,” but that they were “not prepared
to take over [Schaefer’s entire] defense.” Consequently,
Ms. Ludwig requested a thirty-day continuance to prepare an
adequate defense. She also characterized this eleventh-hour
request as an “IAC [ineffective assistance of counsel] trap
and a civil suit trap” because Schaefer had admitted to her
that “[t]his . . . was just a way to force you to be ready for
trial.” The district court then addressed Schaefer:
District court: I take it that no matter what,
you still want to proceed to trial.
Schaefer: Absolutely, Your Honor. They’ve
[Ms. Ludwig and Ms. Harris] been on the
case for nine months. Of course they’re
asking for another continuance, like they’ve
asked for many continuances over the course
of this case. It’s time for trial. It’s not really
that complicated.
* * *
Schaefer: If it comes down to it, I would
rather represent myself and continue to trial
today, but I do want her to represent me in
trial today.
UNITED STATES V. SCHAEFER 15
After a short recess, the district court denied the request
for counsel to represent Schaefer at trial. Noting that
Schaefer “ha[d] been manipulating [the district court] and
his lawyers” and “trying to use gamesmanship in order to
manipulate [the district court] once again,” the district court
found that the request was “going to cause delay.” The
district court noted that Schaefer had previously waived his
right to counsel and that it would “honor[] that prior waiver.”
Schaefer had “chosen his own path, and he must live with
that choice.”
The parties then proceeded to trial, with Schaefer
representing himself and Ms. Ludwig and Ms. Harris
functioning as standby counsel. Schaefer cross-examined
the Government’s witnesses, called his own witnesses, and
offered his own exhibits. The jury ultimately convicted him
on all counts.
E. Post-trial motions and proceedings
The day after the verdict, Ms. Ludwig and Ms. Harris
renewed their motion to withdraw as standby counsel.
Schaefer also renewed his request for the appointment of
counsel to represent him. The district court granted both
requests and appointed new counsel to represent Schaefer,
Schaefer’s seventh attorney.
Schaefer, through counsel, moved to dismiss several
counts. The district court granted the motion in part,
dismissing Count 8 (Felon in Possession of Explosives) for
being unconstitutionally vague. 6 But the district court
refused to dismiss Counts 3 and 7, rejecting the contention
that the Government had failed to prove that Schaefer had
6
The Government does not challenge that holding.
16 UNITED STATES V. SCHAEFER
carried and used a “destructive device” as defined in
18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f).
Schaefer also moved to compel the Government to
produce its trial materials. It had been discovered shortly
after trial that the Government’s legal assistant had
previously worked for the state public defender’s office and,
in that capacity, had participated in a “substantive interview”
with Schaefer in connection with the April 2017 state
prosecution for felon in possession of body armor, which
occurred a few months before the events giving rise to the
instant charges. The legal assistant submitted a declaration
in which she asserted that she had no recollection of the
interview, 7 but the district court reviewed a summary of the
interview and determined that it contained “significant
information,” causing the court to “call into question [the
legal assistant]’s veracity in a very serious way.” The
district court noted that although the interview regarded
Schaefer’s prior state prosecution for felon in possession of
body armor, there had been “significant efforts [by the
Government] during the course of the trial to introduce [Rule
404(b) prior acts] evidence regarding that prior case.” The
defense identified seventeen pieces of information for which
the legal assistant may have transmitted privileged
information, but the Government conducted a review and
identified an independent source for each piece of
information. The district court also conducted an in camera
review of the Government’s trial materials to determine
whether any information “must have come from [the legal
7
The Government also submitted thirty-three other declarations
from current and former employees, who asserted that the legal assistant
had not provided them with any information about any communications
with Schaefer while she had worked for the state public defender’s
office.
UNITED STATES V. SCHAEFER 17
assistant] because there was no other source.” But the
district court ultimately denied the motion to compel,
concluding that there was “no evidence of spillage from [the
legal assistant] to anyone in the U.S. Attorney’s Office.”
The district court imposed a sentence of forty years. In
doing so, the district court determined that Count 3 required
a thirty-year minimum. The district court also found that
Count 4 for “us[ing] . . . an explosive to commit” a felony
and Count 5 for “carr[ying] an explosive during” a felony
merged into a single count under the facts of the case and,
accordingly, required only one consecutive ten-year
minimum. Finally, the district court held that time had been
served for the remaining counts during the pre-trial
detention. Schaefer now challenges his convictions and
sentence.
II. JURISDICTION
We have jurisdiction under 28 U.S.C. § 1291.
III. DISCUSSION
A. Schaefer was not denied his Sixth Amendment
right to counsel
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. “The Sixth Amendment not only guarantees the
right to counsel, but also guarantees the converse right to
proceed without counsel at trial.” United States v. Farias,
618 F.3d 1049, 1051 (9th Cir. 2010). Here, we must address
both of these critical constitutional rights. Schaefer urges us
to vacate his convictions because the district court deprived
him of his right to counsel by (1) erroneously determining
18 UNITED STATES V. SCHAEFER
that he knowingly and intelligently waived his right to
counsel; and later (2) erroneously declining to reappoint
counsel after he changed his mind and attempted to reinvoke
his right to counsel. We disagree with both his claims and
find no such errors.
1. The district court did not err in finding that
Schaefer knowingly and intelligently waived
his right to counsel
“In order to invoke the right to self-representation, a
criminal defendant must make a timely ‘unequivocal,
voluntary, [and] intelligent’ request.” Farias, 618 F.3d
at 1051 (citation omitted). 8 “Once a defendant makes an
unequivocal request to proceed pro se, the court must hold a
hearing—commonly known as a Faretta hearing—to
determine whether the defendant is knowingly and
intelligently forgoing his right to appointed counsel.” Id.at 1051–52; see also Faretta, 422 U.S. at 835. At a
minimum, the district court “must ensure that a defendant
8
As a threshold issue, we determine that the district court did not
clearly err in finding that Schaefer’s waiver was “unequivocal.” See
United States v. Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir. 2009)
(reciting standard). Schaefer certainly requested standby counsel in an
advisory capacity. But this request does not negate his fervent insistence
that he terminate the counsel that represented him and proceed pro se,
especially given his clearly outlined priorities: “[M]y interests on this
matter are . . . first and foremost, going to trial May 6th; secondly, having
standby counsel; and after that, it’s kind of anything goes.” Besides, the
district court had consistently cautioned that “standby counsel is not
going to be prepared to try this case in the same way that an actual lawyer
would be prepared to try this case.” See United States v. Moreland,
622 F.3d 1147, 1155–57 (9th Cir. 2010) (rejecting defendant’s argument
that he did not waive right to counsel because district court had “strongly
urged” him to obtain counsel and “did not promise any specific degree
of assistance” from standby counsel).
UNITED STATES V. SCHAEFER 19
understands: (1) the nature of the charges against h[im];
(2) the possible penalties; and (3) the dangers and
disadvantages of self-representation.” United States v.
French, 748 F.3d 922, 928–29 (9th Cir. 2014) (internal
citations omitted). “Whether a defendant knowingly and
voluntarily waives his Sixth Amendment right to counsel is
a mixed question of law and fact reviewed de novo.”
Mendez-Sanchez, 563 F.3d at 944.
Here, the first and third factors are not strongly disputed.
During the Faretta hearing, the district court ensured that
Schaefer understood “the charges against him” by outlining
the offenses in the then-operative indictment. Schaefer then
confirmed that he had read the indictment and had “been
advised of and underst[ood] the nature of the charges against
[him].” The district court also ensured that Schaefer
understood “the dangers and disadvantages of self-
representation.” Although there is no “set formula or script,”
French, 748 F.3d at 929, we have advised that “there must
be some instruction or description, however minimal, of the
specific dangers and disadvantages of proceeding pro se.”
United States v. Hayes, 231 F.3d 1132, 1137–38 (9th Cir.
2000). Consistent with the prototypical instruction, 9 the
9
Specifically, we have suggested that district courts provide
defendants with the following instruction:
The court will now tell you about some of the
dangers and disadvantages of representing yourself.
You will have to abide by the same rules in court as
lawyers do. Even if you make mistakes, you will be
given no special privileges or benefits, and the judge
will not help you. The government is represented by
a trained, skilled prosecutor who is experienced in
criminal law and court procedures. Unlike the
prosecutor you will face in this case, you will be
20 UNITED STATES V. SCHAEFER
district court adequately cautioned Schaefer by delineating
an extensive list of disadvantages to self-representation. See
United States v. Lopez-Osuna, 242 F.3d 1191, 1198–1200
(9th Cir. 2000) (affirming conviction and holding that
defendant waived right to counsel where court cautioned him
about self-representation and “very competent advisory
counsel” assisted him).
That being said, the remaining factor—whether Schaefer
understood “the possible penalties”—is more challenging.
Schaefer was advised that he faced a mandatory minimum
of thirty years and a potential maximum of life. 10
Problematically, however, Schaefer was not advised that
18 U.S.C. § 844(h)(1) and § 844(h)(2) each impose an
obligatory term of ten years to be served consecutively with
the sentence for the underlying felony. Although it may
have appeared quite likely at the time of Schaefer’s waiver
exposed to the dangers and disadvantages of not
knowing the complexities of jury selection, what
constitutes a permissible opening statement to the jury,
what is admissible evidence, what is appropriate direct
and cross examination of witnesses, what motions you
must make and when to make them during the trial to
permit you to make post-trial motions and protect your
rights on appeal, and what constitutes appropriate
closing argument to the jury.
Hayes, 231 F.3d at 1138–39.
10
This advisement on April 2, 2019 concerned the second
superseding indictment filed on November 15, 2018. On April 18, 2019
the defendant was charged with a third superseding indictment, which
included the charges in the second superseding indictment and two
additional charges. Since the charges exclusive to the third (and final)
superseding indictment carry no minimum penalties, 18 U.S.C.
§ 844(a)(1), 26 U.S.C. § 5871, Schaefer faced the same mandatory
minimum sentence at the April 2, 2019 advisement and at trail.
UNITED STATES V. SCHAEFER 21
that the district court would find that Schaefer’s counts under
18 U.S.C. § 844(h)(1) (“us[ing] . . . an explosive to commit”
a felony) and § 844(h)(2) (“carr[ying] . . . an explosive
during the commission” of a felony) merged into a single
count, this holding was not made until the sentencing
hearing. And, rather than stress the mandatory nature of this
stacking provision, the district court warned only “it is
possible that sentences could run consecutively to each
other.” Thus, although it was made clear that Schaefer’s
sentencing range was thirty years to life, his actual
sentencing range—with § 844(h)’s stacking provision and
assuming the merger of Schaefer’s counts under that
subsection—was forty years to life.
We have not directly encountered a circumstance in
which, like here, a district court incompletely identified only
the defendant’s minimum sentence. Instead, we usually
encounter circumstances in which the district court
inaccurately identified the defendant’s maximum sentence.
See United States v. Erskine, 355 F.3d 1161, 1169–71 (9th
Cir. 2004) (focusing exclusively on whether defendant
understood the maximum penalty and holding that defendant
did not waive right to counsel where he was advised that the
maximum penalty was three, not five, years); see also, e.g.,
United States v. Forrester, 512 F.3d 500, 507–509 (9th Cir.
2008) (vacating conviction where district court overstated
potential penalties by advising defendant that he faced ten
years to life in prison, though he actually faced a range of
zero to twenty years in prison). In those circumstances, we
evaluated the defendant’s “awareness of the range of
possible penalties,” and whether the defendant understood
“the magnitude of the loss” he faced and “knew of his
substantial penal exposure.” Arrendondo v. Neven, 763 F.3d
1122, 1131–36 (9th Cir. 2014) (citing Iowa v. Tovar,
541 U.S. 77, 81 (2004)).
22 UNITED STATES V. SCHAEFER
We recently rejected a per se rule that would have
invalidated an otherwise valid waiver on the grounds that the
district court failed to “recite a particular script” about the
defendant’s charges and potential maximum penalties,
despite the defendant’s avowal that he understood the
charges and maximum penalties he faced. United States v.
Audette, 923 F.3d 1227, 1235–36 (9th Cir. 2019) (citation
omitted). In Audette, the district court inquired whether the
defendant had read the indictment, understood the charges
against him, and was aware of the maximum penalties. Id.at 1231–32. After convening with counsel who represented
him, and despite the district court’s recommendation that he
maintain such counsel, the defendant confirmed that he
wished to proceed pro se. Id. at 1232. The defendant argued
on appeal, however, that his waiver was not knowing and
intelligent because the court merely asked whether he was
aware of those details, rather than “specifically review with
[him] the elements of the offense or the maximum
penalties.” Id. Rejecting that argument, we clarified that
“the focus of our analysis . . . is whether ‘a fair reading of
the record as a whole’ indicates that the defendant
‘understood the dangers and disadvantages of self-
representation.’” Id. at 1235 (citation omitted). We
concluded that “the exchange between [the defendant] and
the court [had] demonstrate[d] that [the defendant]
understood those risks.” Id. at 1236.
Along the same lines, here, we again decline to adopt a
rigid rule. See Gerritsen, 571 F.3d at 1010–11 (explaining
that “[t]he Supreme Court has directed us to take a pragmatic
approach to the waiver question” and “warn[ed] not to
establish rigid requirements that must be met before a
defendant is deemed to have effectively waived counsel”
(citing Tovar, 541 U.S. at 90, 92)). We see no reason to
apply a different rule to the defendant’s knowledge of the
UNITED STATES V. SCHAEFER 23
minimum penalties than that which we apply to the
defendant’s knowledge of the maximum penalties.
Therefore, we hold that to find a defendant knowingly and
intelligently waived his right to counsel, he must have
substantially understood the severity of his potential
punishment under the law and the approximate range of his
penal exposure. Ideally, of course, a district court should
strive to ensure that the defendant unquestionably
understands all possible penalties, including any statutory
minimums, maximums, and stacking provisions. But the
court must consider the particular circumstances. For
example, considerations that weigh in favor of the validity
of a waiver of the right to counsel include the assistance of
counsel at the time of the waiver and the clarity with which
statutory penalties are outlined in an indictment. At bottom,
“our fundamental task is to determine whether a defendant
who invokes his right under Faretta ‘knows what he is doing
and his choice is made with eyes open.’” Gerritsen,
571 F.3d at 1008 (quoting Faretta, 422 U.S. at 835).
Applying this standard to the instant circumstances, we
find that Schaefer substantially understood the grave
severity of his potential punishment and the protracted range
of penal exposure. Schaefer undoubtedly understood that he
risked spending the rest of his life in prison. Not only did
his competency evaluation conclude that he understood the
basis of the charges and the severe penalties associated with
those charges, but the district court repeatedly stressed the
magnitude of a potential life sentence. Schaefer also
understood that he faced a lengthy mandatory minimum
penalty. Schaefer requested the district court to dispense
with a reading of the third superseding, last and operative
indictment, to which he was entitled at his arraignment,
volunteering to the district court that he “underst[ood] the
penalties quite well.” That indictment, like the one before it,
24 UNITED STATES V. SCHAEFER
contained charges under 18 U.S.C. §§ 844(h)(1)–(2) and
924(c)(1)(B)(ii) that carried mandatory minimum penalties.
And, at the Faretta hearing, Schaefer stated that he
understood that his sentences could run consecutively to
each other. Schaefer also enjoyed the benefit of counsel who
represented him from his initial arrest in October 2017 until
his Faretta hearing in April 2019, and thereafter the benefit
of advisory counsel.
That is not to say that we are unconcerned with the
imprecise language used during the Faretta hearing.
Although the district court’s advisement—that “it is possible
that sentences could run consecutively to each other”—may
not have been incorrect, it was certainly incomplete. But we
also appreciate that we are the beneficiaries of hindsight.
We now know that the district court ultimately imposed the
possibility: a consecutive ten-year sentence under § 844(h).
However, the reach of § 844(h)’s stacking provision was
hotly contested during the sentencing hearing: the
Government advocated for a sixty-year sentence by arguing
that § 844(h) required the district court to stack multiple
counts, whereas defense counsel advocated for a thirty-year
sentence by arguing that § 844(h) did not allow stacking
multiple counts based on the same underlying conduct.
Certainly, viewed under this lens, the focus becomes a
bit blurrier. To be sure, “[a] statutory enhancement . . . is
not an element of the crime” and thus “need not be alleged
in the indictment and proven to a jury, but is determined by
the court after the defendant has been convicted.” Gerritsen,
571 F.3d at 1009. Therefore, when “neither the prosecutor
nor the court can authoritatively determine whether
sentencing enhancements will affect the sentencing range”
until the sentencing hearing, the advisement of such
enhancements surely provide a clearer picture of the
UNITED STATES V. SCHAEFER 25
defendant’s approximate range of penal exposure, but the
absence thereof will not nullify an otherwise valid waiver.
See id. at 1009–11 (affirming conviction and holding that
defendant knowingly waived his right to counsel even
though the government overstated the maximum penalty by
including a potential statutory enhancement). Accordingly,
we conclude that the district court did not err in finding that
Schaefer knowingly and intelligently waived his right to
counsel. 11
2. The district court did not err in declining to
reappoint counsel once trial commenced and
the jury was sworn
About a month after Schaefer was deemed competent
and waived his right to counsel, the parties proceeded to
trial. 12 Schaefer represented himself throughout voir dire,
11
Two unpublished dispositions further support our holding. See,
e.g., Campbell v. Virga, 613 F. App’x 651, 652 (9th Cir. 2015) (holding
that defendant waived right to counsel where trial court advised only that
he faced a maximum life in prison because “[a] precise understanding of
the exact range of potential sentences has not been required”); Twitty v.
Maass, Nos. 89-35647, 89-35648, 1990 WL 178018, at *2 (9th Cir.
1990) (“While it is clear that the trial judge and the prosecutor were
mistaken as to the applicability of the mandatory minimum sentencing
statute, we agree with the district court’s conclusion that his plea was not
constitutionally invalid because the defendant was not aware of a
potential minimum sentence, and the court did not commit constitutional
error in not advising him of a potential minimum sentence.”).
12
Throughout these appellate proceedings, defense counsel has
consistently described Schaefer as “mentally ill,” perhaps thinking to
gain a more generous standard by which Schaefer’s actions are
considered. However, the Supreme Court has held that a defendant need
not be “more competent” to “waive[] his right to the assistance of
counsel” than a defendant who is competent to stand trial represented by
26 UNITED STATES V. SCHAEFER
but directly after the jury was sworn, he abruptly changed
his mind and attempted to reinvoke his right to counsel.
Ms. Ludwig, acting as standby counsel, informed the district
court that she was “not prepared to take over [Schaefer’s
entire] defense” but that she “could be prepared within
maybe 30 more days.” Ms. Ludwig also characterized this
unexpected invocation as an “IAC [ineffective assistance of
counsel] trap and a civil suit trap” because Schaefer had
admitted to her that “[t]his . . . was just a way to force [her]
to be ready for trial.” This concern was reasonable as
Schaefer had already filed a malpractice suit against her.
The district court ultimately found that such reappointment
would cause delay, noting that Schaefer has been
“manipulating [the district court] and his lawyers for a long
time now and has put himself in the position where he’s
trying to use gamesmanship in order to manipulate [the
district court] once again.”
counsel. Godinez v. Moran, 509 U.S. 389, 398–400 (1993).
Subsequently the Supreme Court held that the Constitution does not
prohibit a judge from requiring representation for a defendant found
sufficiently competent to stand trial but not sufficiently competent to
conduct trial proceedings, yet reaffirmed that a court may “permit [such]
a gray-area defendant to represent himself.” Indiana v. Edwards,
554 U.S. 164, 173, 177–78 (2008) (emphasis original); see also United
States v. Audette, 923 F.3d 1227, 1237 (9th Cir. 2019). Here, the district
court twice determined that Schaefer was competent to stand trial. Both
times, mental health experts concluded that Schaefer understood the
nature of the proceedings and that he was capable of aiding and assisting
in his defense. Schaefer asserted that he understood the consequences of
waiving his right to counsel and repeatedly told the trial court that he was
competent. And, in fact, Schaefer was able to articulate his priorities to
the trial court, respond appropriately to questions, and conduct direct and
cross-examinations at trial. The record does not show that the trial court
committed clear error by permitting Schaefer to represent himself. See
Audette, 923 F.3d at 1237–38.
UNITED STATES V. SCHAEFER 27
“Generally, a decision to grant or deny a continuance is
reviewed for an abuse of discretion. When the defendant’s
[S]ixth [A]mendment right to counsel is implicated,
however, 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) (internal citations
omitted). These factors include the following:
[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.
United States v. Thompson, 587 F.3d 1165, 1174 (9th Cir.
2009) (quoting Studley, 783 F.2d at 938). “In addition, a
court must be wary against the ‘right of counsel’ being used
as a ploy to gain time or effect delay. As a result, a court
may force a defendant to proceed pro se if his conduct is
‘dilatory and hinders the efficient administration of justice.’”
Id. (internal citations omitted); see also United States v.
Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979) (“[I]n some
circumstances a court may constitutionally deny a
continuance even when that denial results in the defendant’s
being unrepresented at trial.”). Indeed, “the right to
28 UNITED STATES V. SCHAEFER
counsel—once waived—is no longer absolute.” Menefield
v. Borg, 881 F.2d 696, 700 (9th Cir. 1989).
Mindful of Schaefer’s conduct throughout the entire pre-
trial proceedings, the district court did not abuse its
discretion in denying Schaefer’s request to reappoint counsel
to represent him. First, the district court properly found that
reappointment of counsel to represent him would have
caused delay because Schaefer made the request on the first
day of trial after the jury was already impaneled. Cf. Studley,
783 F.2d at 938–39 (affirming denial of counsel where
defendant knew of the need to obtain counsel but asked for
counsel “[o]n the morning of trial”); Leavitt, 608 F.2d at1293–94 (affirming denial of counsel where defendant made
the request the day before trial “because the government had
produced its witnesses . . . and because the court believed
defendant had not made an adequate showing of why he did
not retain counsel earlier”).
Schaefer contends that he relied on “the district court’s
repeated statement that standby counsel’s purpose was to
step in to provide attorney representation if he no longer
wanted to represent himself.” But the district court did not
promise that Schaefer could “tag in” standby counsel as
counsel to represent him at any moment. On the contrary,
the district court portended that “you might change your
mind,” so “it’s better just to have somebody represent you in
this case” and not waive counsel in the first place. Cf.
McCormick v. Adams, 621 F.3d 970, 976–79 (9th Cir. 2010)
(rejecting argument that waiver was improperly induced by
the trial court’s statement that defendant could revisit the
decision to represent himself “at any time”). In fact, the
district court repeatedly warned that standby counsel “is not
going to be prepared to try this case in the same way that an
actual lawyer would be prepared to try this case.” It should
UNITED STATES V. SCHAEFER 29
not have been a surprise, therefore, when standby counsel
requested an additional thirty days to prepare an adequate
defense. Ignoring this assertion and appointing standby
counsel as counsel to represent him nonetheless might have
itself violated the Sixth Amendment, since Schaefer clearly
prioritized his trial date over constitutionally adequate
representation:
District court: I take it that no matter what,
you still want to proceed to trial.
Schaefer: Absolutely, Your Honor. They’ve
[Ms. Ludwig and Ms. Harris] been on the
case for nine months. Of course they’re
asking for another continuance, like they’ve
asked for many continuances over the course
of this case. It’s time for trial. It’s not really
that complicated.
* * *
Schaefer: If it comes down to it, I would
rather represent myself and continue to trial
today, but I do want her to represent me in
trial today.
Second, the district court properly found that Schaefer’s
conduct was dilatory in attempting to manipulate the court
and his own counsel. Schaefer admitted that his unexpected
request to reappoint Ms. Ludwig as counsel to represent him
“was just a way to force [her] to be ready for trial” on his
self-imposed accelerated timeline. Cf. Thompson, 587 F.3d
at 1174 (affirming denial of reappointment of counsel at
final pre-trial conference, which occurred on the eve of trial,
because defendant’s conduct “was clearly ‘dilatory’ and the
30 UNITED STATES V. SCHAEFER
district court properly noted the manner in which [defendant]
had ‘stymied’ the system” in requesting numerous
continuances); United States v. Robinson, 967 F.2d 287, 291
(9th Cir. 1992) (affirming denial of continuance to find new
counsel where defendant had terminated three attorneys, the
district court had “cautioned [defendant] regarding the
complexities of litigation,” and standby counsel had been
appointed).
Finally, the last-minute request was entirely within
Schaefer’s control. Cf. Moreland, 622 F.3d at 1158 (holding
that district court did not err in granting, over defendant’s
objection, a two-week continuance for trial where
“[defendant] was clearly to blame both for the delay and for
the district court not granting a longer continuance”).
Schaefer contends that he did “not seek[] to delay or
postpone his trial” but instead “focused on proceeding to
trial as soon as possible.” Though true, Schaefer waited until
the jury was impaneled to request counsel to represent him,
despite numerous warnings that standby counsel would not
be prepared to function as counsel to represent him.
Schaefer clearly put the district court in a challenging
dilemma: (a) reappoint counsel to represent him and proceed
to trial, thereby disregarding the attorney’s explicit
admission that she was unprepared; (b) reappoint counsel to
represent him and continue the trial date, thereby ignoring
Schaefer’s fervent objection to a continuance; or (c) decline
to reappoint counsel to represent him and proceed to trial,
thereby denying him representation. In light of the
circumstances, the district court did not abuse its discretion
in electing the last option.
UNITED STATES V. SCHAEFER 31
B. The district court did not abuse its discretion in
denying Schaefer’s motion to compel the
Government to produce its trial materials
It was discovered shortly after trial that the
Government’s legal assistant had previously worked for the
state public defender’s office and, in that capacity, had
participated in a “substantive interview” with Schaefer in
connection with the April 2017 state prosecution, which
occurred a few months before the events giving rise to the
instant charges. The legal assistant and thirty-three other
current and former employees submitted declarations
asserting that no privileged information had been transferred
to the federal prosecution. The district court ultimately
denied Schaefer’s motion to compel the Government to
produce its trial materials because there was “no evidence of
spillage from [the legal assistant] to anyone in the U.S.
Attorney’s Office.” Schaefer contends that this decision
denied him access to materials that could have revealed a
violation of his Fifth Amendment right to due process or
Sixth Amendment right to counsel. Although alleged
constitutional violations are reviewed de novo, United States
v. Ortega, 203 F.3d 675, 679 (9th Cir. 2000), we review
discovery questions in criminal proceedings, including those
seeking to compel the government to produce evidence, for
abuse of discretion, United States v. Alvarez, 358 F.3d 1194,
1210 (9th Cir. 2004).
Although we, unlike the district court, lack the benefit of
having sifted through the Government’s trial materials,
Schaefer fails to prove that the district court abused its
discretion in denying him access to such materials. There is
no evidence that the Government used illegally procured
information, “purposefully intru[ded] . . . into the attorney-
client relationship,” or “initiated conversation on privileged
32 UNITED STATES V. SCHAEFER
topics.” United States v. Danielson, 325 F.3d 1054, 1066
(9th Cir. 2003). The district court did not clearly err in
finding, and Schaefer does not adequately refute, that “there
was no evidence of tainted material at trial.” See id. at 1069(explaining that defendant must prove “substantial
prejudice,” which “results from the introduction of evidence
gained through the interference against the defendant at trial,
from the prosecution’s use of confidential information
pertaining to defense plans and strategy, and from other
actions designed to give the prosecution an unfair advantage
at trial”). The Government identified an independent source
for each piece of information in its trial materials. And, in
addition to the legal assistant’s declaration asserting that she
was “not the source of any of the information identified by
the defense,” the Government submitted thirty-three other
declarations asserting that the legal assistant had not
provided the instant federal prosecution with any
information about any privileged information from the April
2017 state prosecution. 13
Schaefer does not offer any evidence that a leak actually
occurred. On the contrary, Schaefer offers only mere
speculation, basing his hunch entirely on the assumption that
because the legal assistant could have leaked privileged
information, she must have done so. This is not enough. See
United States v. Mincoff, 574 F.3d 1186, 1200 (9th Cir.
13
Further undermining Schaefer’s burden to prove “substantial
prejudice,” the district court had granted Schaefer’s motion in limine to
exclude the Government’s proposed Rule 404(b) evidence pertaining to
the earlier state prosecution, which stemmed from the April 2017 state
prosecution. The only reason that the jury heard such evidence was
because Schaefer opened the door to it by cross-examining SA Mutchler
and asking him whether he “became aware of Jason Schaefer, or myself,
in April 2017” when Schaefer “was taken into custody on a mental health
hold.”
UNITED STATES V. SCHAEFER 33
2009) (affirming denial of motion for Brady/Giglio material
and explaining that “mere speculation about materials in the
government’s files did not require the district court to make
those materials available” (internal citation omitted)).
Moreover, the alleged misconduct focuses solely on the prior
state prosecution, which, it will be remembered, had to do
with the defendant’s possession of body armor when he was
taken into custody following his pouring mercury on the
ground in front of his garage, and had nothing to do with
obtaining the explosive materials involved in this case. See
Danielson, 325 F.3d at 1066 (holding that defendant “had a
right to counsel only on the offenses for which he had been
indicted, and on any other offenses that constituted the ‘same
offense’ under the Blockburger test”). The district court,
therefore, did not abuse its discretion in denying him access
to the Government’s trial materials.
C. Schaefer’s homemade explosive device constitutes
a “destructive device” under 18 U.S.C. § 921(a)(4)
and 26 U.S.C. § 5845(f)
Schaefer next argues that his homemade explosive
device does not constitute a “destructive device” within the
scope of 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f),
entitling him to vacatur of judgment of conviction on Counts
3 and 7. 14 Both statutes define “destructive device” as
follows:
(A) any explosive, incendiary, or poison
gas—
14
“Although framed as sufficiency of the evidence arguments, these
are statutory interpretation arguments that we review de novo.” United
States v. Hong, 938 F.3d 1040, 1050 (9th Cir. 2019).
34 UNITED STATES V. SCHAEFER
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge
of more than four ounces,
(iv) missile having an explosive or
incendiary charge of more than
one-quarter ounce,
(v) mine, or
(vi) device similar to any of the
devices described in the
preceding clauses.
(B) any type of weapon . . . by whatever
name known which will, or which may be
readily converted to, expel a projectile by
the action of an explosive or other
propellant, and which has any barrel with
a bore of more than one-half inch in
diameter; and
(C) any combination of parts either designed
or intended for use in converting any
device into any destructive device
described in subparagraph (A) or (B) and
from which a destructive device may be
readily assembled.
UNITED STATES V. SCHAEFER 35
§ 921(a)(4); see also § 5845(f). 15 Both statutes also clarify
that “[t]he term ‘destructive device’ shall not include any
device which is neither designed nor redesigned for use as a
weapon.” § 921(a)(4)(C); § 5845(f). 16
First, Schaefer’s homemade device undoubtedly falls
within the plain language of § 921(a)(4) and § 5845(f). The
statutes define “destructive device” to include “any
explosive, incendiary, or poison gas . . . bomb.” Almost
tautologically, Webster’s Dictionary (2d ed. 1979) defines
“bomb” as “an explosive, incendiary, or gas-filled container,
for dropping, hurling, or setting in place to be exploded by a
timing mechanism.” Schaefer ignited a container (the
cigarette case) filled with TATP, a “high explosive,” that he
caused to combust, injuring himself and the officers
15
“Both of the statutes under which [Schaefer] was convicted [in
Counts 3 and 7] prohibit the unlawful possession of a ‘firearm,’ which is
defined to include a ‘destructive device.’” United States v. Kirkland,
909 F.3d 1049, 1052 (9th Cir. 2018) (citing 18 U.S.C. § 921(a)(3)(D);
26 U.S.C. § 5845(a)(8)). We discuss these statutes together because
“[b]oth statutes . . . define the term ‘destructive device’ in almost
identical language.” Id. (citing § 921(a)(4); § 5845(f)).
16
We have noted that “subsection (C) applies only to materials that
have not yet been assembled into a whole,” while, “[i]n contrast,
subsection (A) applies only to an assembled device, i.e., parts that have
been converted into a bomb or similar device.” United States v. Lussier,
128 F.3d 1312, 1314–15 (9th Cir. 1997). This distinction matters
because if the device falls under subsection (A) as a “bomb,” it
constitutes a “destructive device” per se. If, on the other hand, the device
falls under subsection (C) as a “combination of parts,” the government
is required to prove an intent element: either that the device was
“designed for use” as a “destructive device” or that the defendant
“intended to use the device” as a “destructive device.” Id. (“[W]e have
consistently held that although either intent or design is required as an
element of the crime under subsection (C), a showing of intent is not
required under subsection (A).”).
36 UNITED STATES V. SCHAEFER
attempting to arrest him. This homemade explosive device
certainly fits within the definition of a “destructive device.”
Second, unrebutted evidence about the nature and
characteristics of the homemade device supports the jury’s
conclusion that it was “designed for use as a weapon.” FBI
Special Agent Robert Barbieri testified that the device
contained TATP, which is not commercially available
“[b]ecause of its extreme sensitivity.” ATF Agent Brennan
Phillips then clarified that TATP “is generally too volatile to
make a good commercial explosive.” Unlike gun powder,
which “is classified as a low explosive” that is “designed to
burn or deflagrate,” TATP is a “high explosive” that is
“designed to detonate.” Cf. United States v. Hedgcorth,
873 F.2d 1307, 1312 (9th Cir. 1989) (affirming convictions
where defendants made “napalm firebombs” from “plastic
water jugs filled with gasoline, motor oil, and soap” that
“were capable of producing a more intense, more
concentrated and longer-lasting incendiary effect than less
exotic explosives” and were “not adapted to any legitimate
civilian purpose”). Contrary to the suggestion that the
Government’s broad interpretation of the statutes
impermissibly captures and makes criminal the possession
of otherwise innocuous devices, there is no evidence that
TATP is a “socially useful item.” See Lussier, 128 F.3d at
1317 (affirming conviction where defendant inserted
explosive powder and fuses into CO2 cartridges because
“unrebutted evidence at trial showed that the nature and
characteristics of the CO2 devices made them useful solely
as weapons”). Indeed, we have classified less dangerous and
less volatile devices as falling within the parameters of the
statutes. See, e.g., United States v. Peterson, 475 F.2d 806,
810–11 (9th Cir. 1973) (affirming conviction where
defendant constructed a “common street do-it-yourself
variety of a readily hand-thrown incendiary bomb” by
UNITED STATES V. SCHAEFER 37
combining “friendly item[s]” such as “fusee flare segments,
black powder, cotton rope and binding tape”).
Moreover, the intent with which Schaefer constructed
and used the homemade device also supports the jury’s
verdict. 17 When the officers approached Schaefer, he
wielded the device to evade arrest. He even warned, “I’ll do
it. I’ll do it. I’ll blow us all up.” This threat, coupled with
the subsequent detonation, 18 strongly supports that he
intended to use the device as a weapon. See Hedgcorth,
873 F.2d at 1310 (affirming convictions where defendants
wielded “plastic water jugs filled with gasoline, motor oil,
and soap” in part because defendants “built the firebombs
for the sole purpose of destroying property and intimidating
people”); see also Peterson, 475 F.2d at 810–11 (affirming
conviction where defendant acted “with evil intent” when he
combined “friendly item[s]” to create “a hostile destructive
device likened to a Molotov cocktail of military ingenuity
but a commonly used civilian weapon of crime and
violence”); United States v. Oba, 448 F.2d 892, 894 (9th Cir.
1971) (affirming conviction where defendant “admitted that
the purpose of the device was to bomb and destroy the
property of others”).
Schaefer primarily argues that his homemade device was
too simple to fall within the meaning of the statutes, which,
he asserts, were intended to cover only “military-type
weapons.” The statutes, however, do not dictate that the
17
“Despite the fact that proof of intent is not an element under
subsection (A) [of § 921(a)(4)], we have sometimes looked to a
possessor’s intent as evidence of whether a device was ‘designed [or]
redesigned for use as a weapon.’” Lussier, 128 F.3d at 1316.
18
As a result of the blast, Schaefer lost three fingers, and one of the
officers suffered from a concussion and temporary deafness.
38 UNITED STATES V. SCHAEFER
“destructive device” be some sophisticated piece of
equipment; the statutes specify merely that a device be an
“explosive . . . bomb” that is “designed []or redesigned for
use as a weapon.” § 921(a)(4)(A). In fact, we have
expressly clarified that the statutes capture “devices other
than military type ordnance.” Peterson, 475 F.2d at 810.
Schaefer is not shielded from liability merely because his
device failed to cause lethal or more severe injuries. 19
Accordingly, we affirm the “destructive device” convictions
under Counts 3 and 7.
D. The district court did not violate Schaefer’s
speedy trial rights
“The Speedy Trial Act provides that a criminal
defendant’s trial must normally commence within seventy
days of the filing of the indictment or the defendant’s initial
19
Relying on United States v. Reed, 726 F.2d 570 (9th Cir. 1984),
Schaefer also contends that his device lacks “the traditional indicia of a
weapon.” In Reed, we vacated a conviction where the defendant
attempted—but failed—to destroy a building by lighting “paper-
wrapped, gasoline-filled cans” because the cans were not “designed for
use as a weapon.” We offered a “pragmatic analysis of the kind of device
involved,” noting that “it would have been difficult and dangerous for a
person to hold such a can, ignite the paper and then successfully use or
throw the can without serious harm to himself.” Id. at 576.
Although seemingly persuasive at first glance because Schaefer also
injured himself with his homemade device, we have rejected such a
broad interpretation of Reed where, like here, an expert testified that the
device was “not adapted to any legitimate civilian purpose.” See
Hedgcorth, 873 F.2d at 1312 (affirming conviction and distinguishing
Reed because “[u]nlike napalm firebombs, gasoline cans with holes
poked in the top are common items adapted to many legitimate uses,”
such as “cleaning paint brushes” and “storing fuel for small machinery”).
Further distinguishing Reed, Schaefer even admitted that he had created
the device to cause loss of life—albeit his own life.
UNITED STATES V. SCHAEFER 39
court appearance, whichever is later.” United States v.
Sutcliffe, 505 F.3d 944, 956 (9th Cir. 2007) (citing 18 U.S.C.
§ 3161). “However, certain periods of delay are excluded
from the calculation of the seventy-day limit, including
(1) delays due to competency proceedings; (2) delays
between the time of filing and the prompt disposition of
pretrial motions; and (3) . . . [a] finding that the ends of
justice [are] served by the granting of [a] continuance.” Id.;
see also § 3161(h) (listing “periods of delay” that shall be
excluded). The sanction for failing to comply with these
limits is dismissal of the indictment. See § 3162(a). We
review de novo an alleged deprivation of statutory and
constitutional rights to a speedy trial, and we review factual
findings for clear error. Sutcliffe, 505 F.3d at 956.
When Ms. Ludwig was elevated as counsel to represent
Schaefer in November 2018, well before Schaefer waived
his right to counsel, she expressed that she was “not going to
be able to competently be prepared to take over this whole
case and be ready to go to trial in January [2019].” Schaefer
strenuously objected to a continuance, insisting that the
district court maintain the existing trial schedule. In
response, the district court warned that Schaefer was
“forcing [Ms. Ludwig] to proceed ill prepared, and you will
live with whatever the consequences of her being ill
prepared are.” 20 Schaefer now argues that the district court
somehow “constructively denied” him his right to a speedy
trial. But Schaefer’s argument hinges on revisionist history:
the district court actually sustained Schaefer’s objection to a
continuance, maintaining the existing trial date. The only
reason that the trial did not commence the following month
was because the Government shortly thereafter filed a
20
It is worth noting (again) that Schaefer consistently made clear
that he prioritized an earlier trial date over counsel’s preparedness.
40 UNITED STATES V. SCHAEFER
motion for a competency evaluation, which stopped the
speedy trial clock. See § 3161(h)(1)(A). Because Schaefer
neither alleges that a single day was improperly excluded nor
provides a single relevant authority to support his
contention, his claim fails.
AFFIRMED.