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NOT FOR PUBLICATION FILED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.
2:14-cr-00152-SMJ-1
v.
JASON C. YOUKER, MEMORANDUM*
Defendant-Appellant.
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
participation[.]”).
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
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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.
Mitchell, 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
1
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’”).
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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.
Wilson, 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).
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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.
AFFIRMED.
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