Petition for Writ of Certiorari — Percy Leroy Jacobs, Petitioner v. United States

NO._______

In The

Supreme Court of the United States

PERCY LEROY JACOBS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Marc Gregory Hall

Attorney at Law

Counsel of Record

6411 Ivy Lane

Suite 304

Greenbelt, MD 20770

(240) 205-3041

Appointed Counsel for Petitioner

LANTAGNE LEGAL PRINTING

1108 East Main Street Suite 1201 Richmond Virginia 23219 (804) 644-0477

QUESTIONS PRESENTED

During petitioner’s waiver colloquy with the district judge, the district judge

failed to inquire whether petitioner understood the elements of the charges; failed

to assure that petitioner understood that the maximum “years” of penalties that he

faced were years of imprisonment (as opposed to years of probation); and failed to

inquire about petitioner’s education.

The questions presented are:

I.

Whether, for a waiver of the Sixth Amendment right to trial counsel to be

effective, a defendant must understand the elements of the charged

offenses – as part of the defendant’s understanding of the “nature of

charges,” Von Moltke v. Gillies, 332 U.S. 708, 724 (1948) (plurality op.));

cf. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (“Where a defendant

pleads guilty to a crime without having been informed of the crime’s

elements, th[e] [due process] standard is not met and the plea is

invalid.”)

II.

Whether a trial judge must provide unambiguous information about the

maximum criminal penalties that a defendant faces upon conviction

before accepting the defendant’s waiver of his right to trial counsel.

III.

Whether a trial judge must address the factors set forth in the plurality

opinion in Von Moltke, supra, in a waiver colloquy in order for a

defendant’s waiver of the Sixth Amendment right to counsel to be valid.

IV. Whether the district court violated the Speedy Trial Act.

i

RELATED PROCEEDINGS

The following proceedings are directly related to this case:

• United States v. Percy Leroy Jacobs & Sandra Denise Curl, No.

8:19-cr-444, United States District Court for the District of

Maryland. Judgment entered on February 4, 2023.

• United States v. Percy Leroy Jacobs & Sandra Denise Curl, Nos.

23-4122 & 23-4123, United States Court of Appeals for the Fourth

Circuit. Judgment entered on April 23, 2024.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF AUTHORITIES ......................................................................................... iv

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT CONSTITUTIONAL PROVISION INVOLVED IN THIS CASE ........... 1

STATEMENT OF THE CASE ....................................................................................... 1

REASONS FOR GRANTING THE PETITION ............................................................ 5

I. THE FARETTA ISSUE: This Court Should Grant Certiorari in

Order to Resolve the Wide Division Among the Lower Courts

Concerning the Content of a Colloquy Required to Assure a Valid

Waiver of a Criminal Defendant’s Sixth Amendment Right to Trial

Counsel and also to Clarify Confusion Concerning the Factors Set

Forth in the Plurality Opinion in Von Moltke v. Gillies, 332 U.S. 708

(1948). .................................................................................................................... 8

II. THE SPEEDY TRIAL ISSUE: This Court Should Grant Certiorari

in Order to ensure that the Constitutional Right to a Speedy Trial is

preserved for this Defendant. ............................................................................. 11

CONCLUSION............................................................................................................. 13

APPENDIX:

APPENDIX A: Opinion of the United States Court of Appeals for the

Fourth Circuit .............................................................................................................. A2

APPENDIX B: Order on Rehearing of the Unites States Court of Appeals

for the Fourth Circuit .................................................................................................. A9

iii

TABLE OF AUTHORITIES

Cases

Bradshaw v. Stumpf,

545 U.S. 175, 183 (2005) ........................................................................................... 7

Buhl v. Cooksey,

233 F.3d 783 (3d Cir. 2000) .................................................................................. 10

Cheek v. United States,

498 U.S. 192 (1991) ............................................................................................. 3, 8

Dallio v. Spitzer,

343 F.3d 553 (2d Cir. 2003) .................................................................................. 10

Faretta v. California,

422 U.S. 806 (1975) ............................................................................................. 5, 6

Iowa v. Tovar,

541 U.S. 77 (2004) ................................................................................................... 7

McDowell v. United States,

484 U.S. 980 (1987) ........................................................................................... 5, 10

Patterson v. Illinois,

487 U.S. 285 (1988) ................................................................................................. 6

Smith v. Grams,

565 F.3d 1037 (7th Cir. 2009) ................................................................................. 9

State v. Northington,

667 S.W.2d 57 (Tenn.1984) ..................................................................................... 9

State v. Parsons,

437 S.W.3d 457 (Tenn. Crim. App. 2011) ............................................................... 9

States v. Hakim,

30 F.4th 1310 (11th Cir. 2022) ............................................................................... 8

United States v. Bailey,

675 F.2d 1292 (D.C. Cir. 1982) ............................................................................... 9

United States v. Bell,

901 F.2d 574 (7th Cir. 1990) ................................................................................. 10

United States v. Hamett,

961 F.3d 1249 (10th Cir. 2020) ........................................................................... 7, 8

iv

United States v. Hill,

252 F.3d 919 (7th Cir. 2001) ................................................................................... 9

United States v. Moya-Gomez,

860 F.2d 706 (7th Cir. 1988) ..................................................................................... 9

United States v. Padilla,

819 F.2d 952 (10th Cir. 1987) ................................................................................. 9

United States v. Peppers,

302 F.3d 120 (3d Cir. 2002) .................................................................................... 9

Von Moltke v. Gillies,

332 U.S. 708 (1948) ..................................................................................... 5, 6, 8, 9

Washington v. State,

539 So.2d 1089 (Ala. Crim. App. 1988) .................................................................. 9

Constitution and Statutes

U.S. Const. Amend. VI ................................................................................................. 1

18 U.S.C. § 3161 ................................................................................................... 11, 12

28 U.S.C. § 1254 ........................................................................................................... 1

Rules

Sup. Ct. R. 13.1 .............................................................................................................. 1

Sup. Ct. R. 13.3 .............................................................................................................. 1

Other

Wayne R. LaFave et al., 3 CRIM. PROC. § 11.5(c) (“Requisite Warnings and

Judicial Inquiry”) (4th ed. Dec. 2023 update) ............................................................. 10

v

PETITION FOR WRIT OF CERTIORARI

Petitioner, Percy Leroy Jacobs, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The Court of Appeals’ opinion (App. A) is unreported but is available at

2024 WL 1736700. The Court of Appeals’ order denying rehearing en banc (App.

B) is unreported.

JURISDICTION

The Court of Appeals entered its opinion and judgment on April 23, 2024.

The Court of Appeals denied rehearing en banc on May 28, 2024. This petition has

been filed within 90 days of the latter date. See Sup. Ct. R. 13.1 & 13.3. This

Court thus has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

INVOLVED IN THIS CASE

The Sixth Amendment to the U.S. Constitution provides in pertinent part:

“In all criminal prosecutions, the accused shall enjoy the right to . . . have the

Assistance of Counsel for his defen[s]e.” U.S. Const. Amend. VI.

STATEMENT OF THE CASE

A. Procedural History

On September 25, 2019, in an 18-page indictment, a federal grand jury

charged petitioner, Percy Jacobs, and a codefendant, Sandra Curl, with multiple

1

felony offenses related to their filing of income tax returns. Both petitioner and

Curl, who represented themselves at a jury trial presided over by former U.S.

District Judge George Hazel, were convicted by the jury on March 22, 2022. On

February 23, 2023, Judge Hazel sentenced both petitioner and Curl to terms of 30

months in the Federal Bureau of Prisons.

B. Relevant Facts

At the time of his Faretta hearing, petitioner was a 56-year-old man who

had dropped out of high school in the twelfth grade (and who never obtained a

high school diploma or a GED). He had one prior criminal conviction from 1997

for Loan Fraud in the US District Court for the District of Maryland.

On November 18, 2019, petitioner made his initial appearance before a

federal magistrate judge, qualified for appointed counsel, and was appointed an

attorney from the court’s Criminal Justice Act panel. On that same day, petitioner

was released on bail.

On August 5, 2020, the Petitioner’s appointed attorney filed a Motion to

Withdraw as counsel. As a result of contents of that filing, a Faretta hearing was

held on August 17, 2020. The arraignment was held on that date also.

The Faretta Hearing was deficient in the following ways:

Significantly, the transcript of Judge Hazel’s Zoom colloquy with petitioner,

which primarily consisted of yes-or-no-type questions, shows that Judge Hazel did

not ask petitioner:

2

• Whether petitioner had any level of formal education (including whether

he had a high school diploma or GED) – instead, only asking him whether

he had ever “studied law”;

• Whether petitioner could read and write the English language in a

manner that would permit him to represent himself;

• Whether petitioner suffered from any mental health or physical health

condition that affected his ability to represent himself;

• Whether petitioner understood the elements of the charged tax offenses,

including the heightened “willfulness” mens rea required by Cheek v.

United States, 498 U.S. 192 (1991); and

• Whether petitioner understood that the potential “sentence” that he

faced upon conviction was a prison sentence (as neither Judge Hazel nor

the prosecutor ever referred to “prison” or “imprisonment” or any similar

word in describing the “years” mentioned by the prosecutor in summarizing

the maximum “penalty” that petitioner faced).

• Judge Hazel asked the prosecutor to “read off the charges.” The

prosecutor responded by stating: “He has been charged with conspiracy to

defraud the United States under 18 U.S.C. Section 371; also with aiding

and assisting the preparation of a false return on a number of counts under

26 U.S.C. 7206(2); also with theft of government property under 18 U.S.C.

641; and aiding and abetting, 18 U.S.C. Section 2, and then various

forfeiture-related counts.” Id. at 6. Judge Hazel asked petitioner whether

he understood the fact that he was “charged with those counts” – as

opposed to asking him whether he understood the nature of those charges –

to which he responded, “Yes.”

• Judge Hazel asked the prosecutor to advise petitioner of the “maximum

penalty for those counts,” to which the prosecutor responded: “For Section

371, it’s five years; for Section 7206(2), it’s three years; and for the Section

641 charge, it’s 10 years.” The prosecutor never clarified that “years” meant

years of “prison,” “imprisonment,” or “incarceration.” In response to Judge

Hazel’s question, petitioner responded that he understood the potential

penalties.

3

Judge Hazel found that the defendant had knowingly and voluntarily waived

his right to counsel and that he was, in fact, competent to make this decision and

allowed the defendant to represent himself.

On appeal, petitioner, represented by appointed counsel, and Curl, who was

separately represented, contended that their purported waivers of the right to

counsel were invalid based on numerous deficiencies in the waiver colloquies

conducted by Judge Hazel. The three-judge panel of the Court of Appeals disagreed

and found the waiver by the petitioner to be valid.

On appeal, petitioner, represented by appointed counsel, and Curl, who was

separately represented, contended that their purported waivers of the right to

counsel were invalid based on numerous deficiencies in the waiver colloquies

conducted by Judge Hazel. The three-judge panel of the Court of Appeals rejected

their

arguments

without

mentioning

the

specific

deficiencies.

Although

petitioner’s briefs extensively addressed several specific defects in Judge Hazel’s

waiver colloquy, including (1) his failure to discuss the elements of the charged

offenses, (2) his failure to inquire about the petitioner’s educational background,

and (3) his failure to provide an unambiguous explanation of the penalties that

petitioner faced, the Fourth Circuit’s opinion did not mention those specific

defects.

4

REASONS FOR GRANTING THE PETITION:

I.

THE FARETTA ISSUE

This Court Should Grant Certiorari in Order to Resolve the

Wide Division Among the Lower Courts Concerning the

Content of a Colloquy Required to Assure a Valid Waiver of a

Criminal Defendant’s Sixth Amendment Right to Trial

Counsel and also to Clarify Confusion Concerning the

Factors Set Forth in the Plurality Opinion in Von Moltke v.

Gillies, 332 U.S. 708 (1948).

Since this Court’s 1975 decision in Faretta v. California, 422 U.S. 806

(1975), which permitted criminal defendants to represent themselves at trial, the

lower courts increasingly have been divided over the question of what information

a trial judge must convey to a criminal defendant who wishes to waive his right to

trial counsel in order for the defendant’s waiver to be constitutionally valid. See,

e.g., McDowell v. United States, 484 U.S. 980, 980 (1987) (White, J., joined by

Brennan, J., dissenting from the denial of certiorari) (discussing the division

among state and federal appellate courts concerning the type of colloquy required

by Faretta when a defendant wishes to represent himself at trial.). The

disagreements among the lower courts include whether the factors identified by

the plurality in Von Moltke v. Gillies, 332 U.S. 708 (1948), are mandatory factors to

be addressed by a trial judge in a waiver colloquy with the defendant. As discussed

below, petitioner’s case presents this Court with an excellent vehicle to address the

recurring and important questions concerning the required content of a Faretta

waiver colloquy.

5

A. The Fourth Circuit’s Approval of Judge Hazel’s Flawed

Waiver Colloquy Conflicts with Decisions of Both this

Court and Three Other U.S. Courts of Appeals.

In petitioner’s case, Judge Hazel did not satisfy “the serious and weighty

responsibility upon the trial judge of determining whether there is an intelligent

and competent waiver [of the right to counsel] by the accused;” his insufficient

questioning thus failed to overcome the “strong presumption against waiver of the

constitutional right to counsel.” Von Moltke, 332 U.S. at 723; see also Faretta v.

California, 422 U.S. 806, 835 (1975) (“When an accused manages his own defense,

he relinquishes . . . many of the traditional benefits associated with the right to

counsel. For this reason, in order to represent himself, the accused must

‘knowingly and intelligently’ forgo those relinquished benefits.”) (citing, inter alia,

Von Moltke).

Only a colloquy with “a penetrating and comprehensive examination of all

the circumstances” by the trial judge permits a reviewing court to determine

whether the waiver was knowingly and intelligently made. Von Moltke, 332 U.S.

at 724. As this Court has stated: “[R]ecognizing the enormous importance and role

that an attorney plays at a criminal trial, we have imposed the most rigorous

[requirements concerning] the information that must be conveyed to a defendant,

and the procedures that must be observed, before permitting him to waive his

right to counsel at trial.” Patterson v. Illinois, 487 U.S. 285, 298 (1988) (citing

Faretta and Von Moltke).

6

Although this Court has not “prescribed any formula or script to be read to a

defendant who states that he elects to proceed without counsel,” this Court has

held that the “information a defendant must possess in order to make an

intelligent election . . . depend[s] on a range of case-specific factors, including the

defendant’s education or sophistication [and] the complex or easily grasped nature

of the charge . . . .” Iowa v. Tovar, 541 U.S. 77, 88 (2004).

Judge Hazel’s colloquy with petitioner, who lacked a high school diploma

and GED, and who faced complex federal tax offenses charged in the 18-page

indictment, failed to satisfy the “rigorous” requirements required by this Court’s

precedent. The Fourth Circuit’s decision also conflicts with decisions of other

circuits, as discussed below. Among other things, before accepting their waivers of

counsel, Judge Hazel failed:

(1) to inquire about petitioner’s mental health issues or his level of formal

education or literacy;

(2) to explain the elements of the charged offenses – a procedure which the

Tenth Circuit requires in a Faretta colloquy (in order to assure a defendant

understands the “nature” of a charged offense), United States v. Hamett,

961 F.3d 1249, 1257 (10th Cir. 2020), and which this Court requires in an

analogous context, see Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)

(“Where a defendant pleads guilty to a crime without having been informed

of the crime’s elements, this [due process] standard is not met and the plea

is invalid.”);

(3) to assure that petitioner, understood even the general nature of the

complex criminal tax charges – about which he previously had expressed

confusion at his initial appearance and in his pro se filings;

7

4) to assure that appellants understood potential defenses to the

complex tax charges (including a lack of a “willfulness” mens rea, see

Cheek, 498 U.S. 192), see Von Moltke, 332 U.S. at 724 (“To be valid such

waiver must be made with an apprehension of . . . possible defenses to the

charges and circumstances in mitigation thereof ”);

(5) to “unambiguously” explain to petitioner that he faced potential

imprisonment, as the Eleventh Circuit requires, United States v. Hakim,

30 F.4th 1310, 1324-25 (11th Cir. 2022).

Furthermore, these deficiencies in the waiver colloquy were exacerbated by Judge

Hazel’s use of simple yes-or-no questions.

The use of yes or no questions fails to accomplish the “penetrating and

comprehensive examination” required for there to be a constitutionally valid

waiver of the Sixth Amendment right to counsel. Von Moltke, 332 U.S at 724. The

Fourth Circuit’s approval of Judge Hazel’s Faretta colloquy with petitioner

conflicts with decisions of these other circuits and also failed to satisfy the

“rigorous” requirements set forth many decades ago in Von Moltke. Significantly,

the lower federal and state courts are divided about the precedential value of the

plurality opinion Von Moltke with respect to the types of information that a trial

judge must convey to a defendant wishing to represent himself. Compare, e.g.,

United States v. Hamett, 961 F.3d 1249, 1255- 56 (10th Cir. 2020) (“A proper

Faretta hearing apprises the defendant of the following: ‘the nature of the charges,

the statutory offenses included within them, the range of allowable punishments

thereunder, possible defenses to the charges and circumstances in mitigation

thereof, and all other facts essential to a broad understanding of the whole matter.’

[citing prior Tenth Circuit cases] (noting that these factors are known as the “Von

8

Moltke factors,” as such areas of inquiry are taken from the Supreme Court’s

opinion in Von Moltke, 332 U.S. at 724). Importantly, this Court has reiterated

that the Von Moltke factors ‘must be conveyed to the defendant by the trial judge

and must appear on the record so that our review may be conducted without

speculation.’ United States v. Padilla, 819 F.2d 952, 957 (10th Cir. 1987).”); United

States v. Peppers, 302 F.3d 120, 131-32 (3d Cir. 2002) (requiring district court to

address Von Moltke factors during a Faretta colloquy); State v. Parsons, 437

S.W.3d 457, 481 (Tenn. Crim. App. 2011) (noting that the Tennessee Supreme

Court in State v. Northington, 667 S.W.2d 57, 60 (Tenn.1984), required the Von

Moltke factors to be addressed during a Faretta colloquy), with United States v.

Bailey, 675 F.2d 1292, 1299 (D.C. Cir. 1982) (refusing to require a trial court to

address the Von Moltke factors in a Faretta colloquy); Washington v. State, 539

So.2d 1089, 1092-93 (Ala. Crim. App. 1988) (same); see also Smith v. Grams, 565

F.3d 1037, 1046 (7th Cir. 2009) (“The Supreme Court has not provided extensive

direction on the nature of the ‘rigorous restrictions . . . [and] procedures’ that a

court must observe before finding valid waiver of a defendant’s right to trial

counsel. See [United States v.] Moya-Gomez, 860 F.2d [706,] 732 [(7th Cir. 1988)];

see also United States v. Hill, 252 F.3d 919, 925 (7th Cir. 2001) (expressing doubt

‘that any [procedural] list can be mandated’). But see Von Moltke, 332 U.S. at 724

(Black, J., plurality opinion) (stating that a valid waiver ‘must be made with an

apprehension of the nature of the charges, the statutory offenses included within

them, the range of allowable punishments thereunder, possible defenses to the

9

charges and circumstances in mitigation of, and all other facts essential to a broad

understanding of the whole matter’).”).

B. Petitioner’s Case Presents this Court with An Excellent

Vehicle to Offer Needed Guidance to the Lower Courts

Concerning a Faretta Colloquy When a Defendant Wishes

to Represent Himself at Trial.

The conflicts between the Fourth Circuit and the other circuits discussed

above are part of a broader division among the lower courts over the type of

waiver colloquy required by Faretta before a defendant may represent himself at a

trial. This division has existed for several decades, as reflected in an opinion

dissenting from denial of certiorari by Justice White in 1987. See McDowell v.

United States, 484 U.S. 980, 980 (1987) (White, J., joined by Brennan, J.,

dissenting from the denial of certiorari) (discussing the division among state and

federal appellate courts concerning the type of colloquy required by Faretta when

a defendant wishes to waive his right to counsel and represent himself at trial);

see also Dallio v. Spitzer, 343 F.3d 553, 563 n.4 (2d Cir. 2003) (noting the division

among the lower courts); Buhl v. Cooksey, 233 F.3d 783, 798 n.17 (3d Cir. 2000)

(same); United States v. Bell, 901 F.2d 574, 577 n.2 (7th Cir. 1990) (noting “a split

in the circuits over the extent of inquiry necessary before allowing an accused to

waive his right to counsel”; citing cases); see generally Wayne R. LaFave et al., 3

CRIM. PROC. § 11.5(c) (“Requisite Warnings and Judicial Inquiry”) (4th ed. Dec.

2023 update) (discussing the differing approaches of federal and state appellate

courts concerning the requirements of a proper Faretta colloquy).

10

As discussed above, petitioner’s case involves several different issues

related to the manner in which a trial judge should conduct a proper Faretta

colloquy – including the types of questions and warnings required for an

undereducated defendant with mental illness; whether a specific advisement

about the elements of the charged defenses is required (as is required for a

defendant’s guilty plea to be constitutionally valid); and whether a trial court

must provide unambiguous warnings about the potential criminal penalties that

the defendant faces.

II.

THE SPEEDY TRIAL ISSUE

This Court Should Grant Certiorari in Order to ensure that the

Constitutional Right to a Speedy Trial is preserved for this

Defendant.

“The trial of a defendant charged in an information or indictment with the

commission of an offense shall commence within seventy days from the filing date

(and making public) of the information or indictment, or from the date the

defendant has appeared before a judicial officer of the court in which such charge is

pending, whichever date last occurs.”

18 U.S.C. § 3161(c).

As noted above,

Appellant Jacobs had his initial appearance on November 18, 2019. The trial in

this case did not commence until March 21, 2022. Section 3161(h) includes a list of

filings or events that toll the 70-day speedy trial “clock.” They include: (1) “delay

resulting from any pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such motion,” §

11

3161(h)(1)(D); and (2) “delay reasonably attributable to any period, not to exceed

thirty days, during which any proceeding concerning the defendant is actually

under advisement by the court.” 18 U.S.C. § 3161(h)(1)(H).

In this case, the speedy trial “clock” began running on November 18, 2019

when Jacobs had his initial appearance.

The sole “pretrial motion” that was filed

in the four-month period thereafter was the government’s “motion for disclosure”

(seeking a protective order concerning taxpayer information), which was filed on

December 24, 2019. That motion remained pending until January 7, 2021, when it

was orally granted by the district court at a pretrial status conference. Yet, as

explained below, because that motion did not require a hearing (and was not

granted after a hearing), it only tolled the speedy trial clock for 30 days under §

3161(h)(1)(D).

Therefore, the clock began running again on January 24, 2020.

Because no additional motions were filed until March 31, 2020 – 67 days later – the

total time not tolled between November 25, 2019, and March 31, 2020, was well

over 70 days, the Speedy Trial Act was violated.

As Jacob’s case was consolidated for trial with Curl’s case, there is no

difference as to how the Speedy Trial Act should be applied to the two appellants.

As discussed above, both appellants consistently objected to the proceedings in the

district court as violations of the Speedy Trial Act. Appellant Jacobs’s right to a

speedy trial was thus violated.

12

CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ

of certiorari and reverse the judgment of the U.S. Court of Appeals for the Fourth

Circuit.

/s/ Marc G. Hall

MARC G. HALL

Attorney at Law

6411 Ivy Lane

Suite 304

Greenbelt, Maryland 20770

(240) 205-3041

mghlaw@mac.com

Appointed Counsel for Petitioner

June 5, 2024

13

NO._______

In The

Supreme Court of the United States

PERCY LEROY JACOBS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX

Marc Gregory Hall

Attorney at Law

Counsel of Record

6411 Ivy Lane

Suite 304

Greenbelt, MD 20770

(240) 205-3041

Appointed Counsel for Petitioner

LANTAGNE LEGAL PRINTING

1108 East Main Street Suite 1201 Richmond Virginia 23219 (804) 644-0477

APPENDIX A

Opinion of the Court of Appeals Affirming the District

Court's Judgment

A1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4122

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

v.

PERCY LEROY JACOBS, a/k/a Percy El Jacobs, a/k/a Percy Jacobs El, a/k/a

Minister Percy El Jacobs,

Defendant- Appellant,

No. 23-4123

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

v.

SANDRA DENISE CURL, a/k/a Sandra Curl Jacobs, a/k/a Sandra Curl-Jacobs El,

a/k/a Minister Sandra El,

Defendant - Appellant.

Appeals from the United States District Court for the District of Maryland, at Greenbelt.

George Jarrod Hazel, District Judge. (8: 19-cr-00444-GJH-2; 8: 19-cr-00444-GJH-1)

A2

USCA4 Appeal 23-4123

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Filed: 04/23/2024

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Submitted: December 15, 2023

Decided: April 23, 2024

Before WILKINSON, KING, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Brent Evan Newton, Gaithersburg, Maryland; Marc G. Hall, Greenbelt,

Maryland, for Appellants. David A. Hubbert, Deputy Assistant Attorney General, S.

Robert Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section, Katie Bagley,

Joseph B. Syverson, Hannah Cook, DEPARTMENT OF JUSTICE, Washington, D.C.;

Erek L. Barron, United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2

A3

USCA4 AIJpt:dl : 23-·1123

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Fil ed: 04 /2 3/2024

Pg · 3 of 6

PERCUIUAM:

Percy Leroy Jacobs and Sandra Denise Curl' (collectively, "Appellants"), appeal

their convictions following a jury trial for conspiracy to defraud the United States, in

violation of 18 U.S.C. § 371; multiple counts of aiding and assisting the preparation of a

false return. in violation of 26 U.S.C . § 7206(2); and aiding and abetting theft of

government property, in violation of 18 U.S.C. §§ 2, 641. The district court sentenced

them each to 30 months' imprisonment. On appeal, Appellants contend that the district

cou11 (I) erred by granting their requests to waive their right to counsel, and (2) violated

the Speedy Trial Act, 18 U.S.C. § 3161. Finding no error, we affirm.

Beginning with Appellants' waiver of their right to counsel, " [t]he Sixth

Amendment guarantees to a criminal defendant the right to the assistance of counsel before

he can be convicted and punished by a term of imprisonment." 2 United States v. Ductan,

800 F.3d 642, 648 (4th Cir. 20 15). But it also guarantees a defendant ' s right to selfrepresentation. Faretta v. California, 422 U.S. 806, 821 (1975). Thus, a defendant may

relinquish the right to counsel upon a valid waiver. A waiver of the right to counsel is valid

if it is "(1) clear and unequivocal, (2) knowing, intelligent, and voluntary, and (3) timely."

United States v. Ziegler, 1 F.4th 219, 226 (4th Cir. 2021) (internal quotation marks

omitted).

1

Curl also used the name Sandra Ken an during the underlying proceedings.

2

The parties dispute the standard of review applicable to these claims. We need not

resolve this issue because Appellants' arguments fail under their requested standard of de

novo review.

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"The Supreme Court has not prescribed any formula or script to be read to a

defendant who states that he elects to proceed without counsel." United States v. Roof,

I 0 F.4th 314, 359 (4th Cir. 2021) (internal quotation marks omitted). And a court need not

conduct a ·'searching or formal inquiry" for a waiver of the right to counsel to be valid.

Ductan, 800 F.3d at 649 (internal quotation marks omitted). In other words, "no particular

form of interrogation is required" for a valid waiver. Ziegler, 1 F.4th at 229 (internal

quotation marks omitted).

Accordingly, a district court must simply "assure itself that the defendant knows the

charges against him, the possible punishment and the manner in which an attorney can be

of assistance, as well as the dangers and disadvantages of self-representation," Roof,

10 F.4th at 359 (cleaned up), such that the defendant " knows what he is doing and his

choice is made with his eyes open," Ziegler, 1 F.4th at 229 (cleaned up). The district court

does this "by examining the record as a whole and evaluating the complete profile of the

defendant and the circumstances of his decision as known to the ... court at the time."

Roof, 10 F.4th at 359 (internal quotation marks omitted).

Here, the district court had the Government review the charges against Appellants

and the maximum potential penalties, which Appell ants confirmed they understood. The

court warned Appellants of the risks of proceeding pro se and advised them that it would

be in their best interests to continue being represented by counsel. And it confirmed

Appellants were freely and voluntarily choosing to relieve counsel and proceed pro se. The

colloquies satisfied the district court's obligation to ensure Appellants' waivers of their

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right to counsel were knowing, intelligent, and voluntary. On the facts of these cases, no

more searching inquiry was required.

"We review a district court's decision to exclude time under the Speedy Trial Act

de novo and its factual findings for clear error." United States v. Pair, 84 F.4th 577, 582

(4th Cir. 2023). "The Speedy Trial Act requires that a criminal defendant's trial commence

within seventy days from the filing date of the indictment, or from the date the defendant

has appeared before a judicial officer of the court in which such charge is pending,

whichever date last occurs." !d. (cleaned up). However, it also "specifies various periods

of delay that are excluded from the speedy trial clock." !d.

As relevant here, such

excludable delay includes any "delay resulting from any pretrial motion, from the filing of

the motion through the conclusion of the hearing on, or other prompt disposition of, such

motion." 18 U.S.C. § 3161 (h)(1)(D). The filing of a pretrial motion "stops the speedy trial

clock from running automatically."

United States v. Tinklenberg, 563 U.S. 647, 653

(20 11).

The parties agree that Appellants' speedy trial clock commenced on November 25,

2019. And Appellants concede that the district court properly tolled all time from March

31, 2020, through the start of their trial. Accordingly, the relevant period for this appeal

covers the 127 days from November 25,2019, to March 30,2020. Our review of the record

reveals that all but 11 days of this period were tolled by Curl's December 6, 2019, motion

for a Faretta hearing. Contrary to Appellants' contentions on appeal, this filing was a

motion within the meaning of§ 3161 (h)( 1)(D). The motion said Curl wished to waive her

right to counsel and specifically requested a Faretta hearing, and the district court

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ultimately granted that request and held a hearing. That hearing was necessary for the

district court's resolution of the motion, as the court could not permit Curl to waive her

right to counsel without first holding the requested hearing. The filing of this motion thus

automatically tolled the speedy trial clock from December 6 through the date of that

hearing, which was held after the period Appellants challenge in this appeal. See United

States v. Henderson, 476 U.S. 321, 326-30 (1986); see also United States v. Harris, 491

F.3d 440, 445 (D.C. Cir. 2007); United States v. Bush, 404 F.3d 263, 274 (4th Cir. 2005).

We therefore affirm the criminal judgments.

We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

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APPENDIX B

Order of the Court of Appeals Denying

Rehearing En Bane

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FILED: May 28, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4122 (L)

(8: 19-cr-00444-GJH-2)

UNITED STATES OF AMERICA

Plaintiff- Appellee

v.

PERCY LEROY JACOBS, a/k/a Percy El Jacobs, a/k/a Percy Jacobs El, a/k/a

Minister Percy El Jacobs

Defendant - Appellant

No. 23-4123

(8: 19-cr-00444-GJH-1)

UNITED STATES OF Al\1ER1CA

Plaintiff- Appellee

v.

SANDRA DENISE CURL, a/k/a Sandra Curl Jacobs, a/k/a Sandra Curl-Jacobs

El, a/k/a Minister Sandra El

Defendant - Appellant

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ORDER

The petition for rehearing en bane was circulated to the full court. No judge

requested a poll under Fed. R. App. P. 35 . The court denies the petition for

rehearing en bane.

Eor the Court

/s/ Nwamaka Anowi, Clerk

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