United States v. Jason Youker ( 2017 )

  •                            NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                        DEC 7 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    16-30135
                    Plaintiff-Appellee,             D.C. No.
    JASON C. YOUKER,                                MEMORANDUM*
                      Appeal from the United States District Court
                          for the Eastern District of Washington
                     Salvador Mendoza, Jr., District Judge, Presiding
                              Submitted December 5, 2017**
                                  Seattle, Washington
    Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.
          Jason Youker was convicted of numerous counts related to conspiracy to
    distribute methamphetamine and heroin, and unlawful possession of firearms and
    ammunition in furtherance of those crimes. Youker appeals his conviction on the
    grounds that he was denied his Sixth Amendment right to self-representation while
                 This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
                 The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    incarcerated pre-trial and Fifth Amendment right to due process, and received
    ineffective assistance of standby counsel. Youker also argues the district court
    abused its discretion by restricting his access to discovery and denying his motion
    to continue the trial. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
          1. Youker was not denied his constitutional rights to self-representation and
    due process simply because standby counsel served as a facilitator between the
    investigator and Youker. Given Youker’s stated need for an investigator and the
    court-funded private investigator’s refusal to work directly with Youker, the
    district court made a permissible adjustment “to assist the defendant in overcoming
    routine obstacles that stand in the way of the defendant’s achievement of his own
    clearly indicated goals.” See Savage v. Estelle, 
    924 F.2d 1459
    , 1462 (9th Cir.
    1990) (citation omitted); see also McKaskle v. Wiggins, 
    465 U.S. 168
    , 177 n.8
    (1984) (“The trial judge may be required to make numerous rulings reconciling the
    participation of standby counsel with a pro se defendant’s objection to that
          Neither did standby counsel’s refusal to relay investigative requests that
    were “outside the ethical bounds of things that could be requested” violate
    Youker’s rights to self-representation and due process, as it was not “a matter that
    would normally be left to the defense’s discretion.” McKaskle, 465 U.S. at 181;
    see also Milton v. Morris, 
    767 F.2d 1443
    , 1446 (9th Cir. 1985) (“[A]voidance of
    abuse by opportunistic . . . defendants may require special adjustments.” (citations
    omitted)). “The right of self-representation is not a license to abuse the dignity of
    the courtroom” or “not to comply with relevant rules of procedural and substantive
    law.” McKaskle, 465 U.S. at 184 (quoting Faretta v. California, 
    422 U.S. 806
    , 834
    n.46 (1975)). Moreover, complying with ethical rules is not ineffective assistance
    of counsel. See Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); cf. United
    States v. Thoreen, 
    653 F.2d 1332
    , 1340 (9th Cir. 1981) (“Ethical standards
    establish the outermost limits of appropriate and sanctioned attorney conduct.”).1
          2. The district court did not abuse its discretion by denying Youker’s
    numerous requests for “complete access” to discovery. See United States v.
    502 F.3d 931
    , 964 (9th Cir. 2007). A criminal defendant’s right to access
    discovery “must be balanced against the legitimate security needs or resource
    constraints of the prison.” United States v. Sarno, 
    73 F.3d 1470
    , 1491 (9th Cir.
    1995). Here, the district court did not give Youker unrestricted access in his cell to
    discovery—which included sensitive statements by cooperating co-defendants—
    given safety concerns that Youker would disseminate the information to harass or
      Appointing standby counsel despite Youker’s claim that “we don’t get along” did
    not violate the Sixth Amendment. See McKaskle, 465 U.S. at 180–81 (no Sixth
    Amendment violation despite “acrimonious exchange[s]” between defendant and
    standby counsel, during which counsel “used profanity and curtly directed
    [defendant] to ‘[s]it down’”).
    harm those co-defendants, and a reluctance to “micromanage jail officials,” whose
    prevailing policy did not permit detainees to keep discovery in their cells.
          Youker’s argument that the discovery “could have been redacted, or placed
    on a computer” is unavailing. Youker had personal access to over 2,600 pages of
    material, which the government organized into seven indexed binders and
    delivered to the jail for his perusal six months before trial. He could choose
    between daily access to one binder at a time in a visiting booth—or,
    alternatively—access to all seven at once in the law library, but only during
    allotted daily hours. “When [constitutionally permissible legal assistance] is
    provided [at government expense], as was here, [Defendant] may not reject the
    method provided and insist on an avenue of his . . . choosing.” United States v.
    690 F.2d 1267
    , 1271 (9th Cir. 1982) (citation omitted). These reasonable
    limits on Youker’s access to discovery were not an abuse of discretion. See Sarno,
    73 F.3d at 1492 (no abuse of discretion where defendant had twenty hours to
    review 250,000 pages of discovery). Here, Youker had access to the material for
    months, though testimony of the jail officials established he rarely looked at them.
          3. Neither did the district court abuse its “broad discretion” by denying
    Youker’s request for a continuance on the first day of trial on a case that had been
    pending for a year. See United States v. Flynt, 
    756 F.2d 1353
    , 1358–59 (9th Cir.
    1985) (establishing four-part test for reviewing a denial of a continuance).
    Notwithstanding prior continuances sought by both sides and granted by the
    district court, Youker argues he should have been allowed additional time because
    his constitutional rights were violated. On this record, Youker’s constitutional
    claims are without merit. Youker “has failed to adduce any evidence that would
    support a conclusion that the district court abused its discretion in refusing to
    postpone the trial” again. See Sarno, 73 F.3d at 1493.