Opposition Brief — Egwaoje v. United States

No. 03-691

Jn the Supreme Court of the Anited States

BENJAMIN EGWAOJE, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

JONATHAN L. MARCUS

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

«BEST AVAILABLE COPY i

QUESTIONS PRESENTED

1. Whether the court of appeals correctly considered

the totality of the circumstances in determining that

petitioner knowingly and intelligently waived his right

to counsel, rather than requiring that the district court

have conducted a specific formal colloquy with peti-

tioner before permitting him to represent himself at

trial under Faretta v. California, 422 U.S. 806 (1975).

2. Whether Faretta should be overruled.

(I)

TABLE OF CONTENTS

Page

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sa ceinenitnhn apinmnateninapenemnmnnbennetioutes 1

III Lah sitatincaetinastichahinassitncepenireissannininnerrninssesasnuterremestunurienmmniennbe 1

IIE Siisicecsisnsincnsscshoovinesesevencecnnnseronnessestonunvesieneynoneteonasocenseoayenete 8

race cslaneneninieiceinarsetdicanonianessiiienioroirenienepampessanonines 11

TABLE OF AUTHORITIES

Cases:

Adams v. United States, 317 U.S. 269 (1942) ...... essen 9

Buhl v. Cooksey, 233 F.3d 783 (8d Cir. 2000) ........eceseseee 13

Cordova v. Baca, 346 F.3d 924 (9th Cir. 2008) uss 13

Faretta v. California, 422 U.S. 806 (1975) ..... seer 6, 8,9

11, 12,15

Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th

Ce RIED nckesnzscisnenien Sa alalecadlataiat nciicialpietiiginninnindionennebins 13

Godinez v. Moran, 509 U.S. 389 (1998) .....cceseereeeseeereees 8, 14

Johnson v. Zerbst, 304 U.S. 458 (1988) ........cccccssssssessees 8

Martinez v. Court of Appeal of Cal., 528 U.S. 152

Th ol 5c slid ihe aha ciendeanatlaletiadenieninibioinnninitaidinsineneminnne 14

McKaskle v. Wiggins, 465 U.S. 168 (1984) .......secssseeseeees 14

McQueen v. Blackburn, 755 F.2d 1174 (5th Cir.),

cert. denied, 474 U.S. 852 (1985) .........cccsscrscssssssssersrseres 13

Nelson v. Alabama, 292 F.3d 1291 (11th Cir.

II isi niciaeassdivaiebdensditinadsonmadinsainbasuaneimnmnemeeenennamnevennormenes 13

United States v. Avery, 208 F.3d 597 (7th Cir.

icici hei ci caiadaeesieinailedatannennnsattudeninemuinntesinienmnennns 7

United States v. Bailey, 675 F.2d 1292 (D.C. Cir.),

Gert. Gemmed, 459 U SS. BES CIGBZ) .....0nrccerccsersiverevevcerserserevees 10

United States v. Campbell, 874 F.2d 838 (1st Cir.

EE Ee an na 10

United States v. Frazier-El, 204 F.3d 553 (4th Cir

SUI ecbidilintieiabnshiahiioniindnnsiaisntiamantinieinntnpeummntnnnatematinenyesuerneeniates 12

United States v. Hughes, 191 F.3d 1317 (10th Cir.

1999), cert. denied, 529 U.S. 1022 (2000) ..........sssseessesenees 13

(III)

IV

Cases—Continued: Page

United States v. Irorere, 228 F.3d 816 (7th Cir. |

IE wikicsickdicsshacciesssonsteentanaiesttanliaaadiedeiniaaipiiepimimmnaaicaeies 13

United States v. Kelm, 827 F.2d 1319 (9th Cir.

SPLIT D sesicinecscscsinhliaohktintonestcinesobatetaaisA Gadenataebeatiaanieleiatnabiantbisdiin 13

United States v. Kneeland, 148 F.3d 6 (1st Cir.

SD enccicnctdiniaeacestaiieinnlncdemiasaaeiennieniniaanaiin 13

United States v. McDowell, 814 F.2d 245 (6th Cir.),

cert. denied, 484 U.S. 980 (1987) ..........ccccssvessensssessnsesses 10, 11

United States v. Singleton, 107 F.3d 1091 (4th Cir.),

cert. denied, 5Z2 U.S. 825 (1997) .....crcesecsssrreressesersevessvsevevese 9

United States v. Stewart, 20 F.3d 911 (8th Cir.

SEINED sccicsavacnsapininiedieeshcliaiocniiancadatamaanaaaidabaninaaieiein 10

United States v. Stubbs, 281 F.3d 109 (8d Cir.

SOUT, sskescsscesnisineicisaistcelieacidaa ousceuhasinuabciibabchaceshancbdaniipsindalesbucliiaie 10

United States v. Tompkins, 623 F.2d 824 (2d Cir.

SOIT cinchascentutiesonstevgtedintiesecnsebshaielebtaesbieieeacdehacauiadabadgiiiipiaatitnelioan 10

United States v. Turner, 287 F.3d 980 (10th Cir.

SOIIED » csseesesessinvcnstnniesessebgsinessinidenssnindsiibdiibmaatenbanetstiieitiatainatainpele 9

Constitution and statutes:

Shs NE, TANI. WO " istctishnnititsnnincsciebanceniniacanmenincnie 8, 9, 11, 12

Oe Be ei RED cethvnchies sikicsesinssseatlishadiacsinaicnitaabdeilictonmianonianin 2

es CED skissrisciscnienseninsderapsetiahiaiinnneiniaaniion 2

Miscellaneous:

1 Federal Justice Center, Bench Book for District

FIG CI OE. SIGS ccencincssniinnstivesanianioeseriesnieiesinianiiiniaaitinniitine 10

In the Supreme Court of the Gnited States

No. 03-691

BENJAMIN EGWAOJE, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 2a-17a)

is reported at 335 F.3d 579.

JURISDICTION

The judgment of the court of appeals was entered on

July 9, 2003. On September 10, 2003, Justice Stevens

extended the time within which to file a petition for a

writ of certiorari to and including November 6, 2003,

and the petition was filed on that date. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Illinois, petitioner

was convicted of using unauthorized credit cards to

(1)

2

obtain cash advances from different banks in an amount

in excess of $1000, in violation of 18 U.S.C. 1029(a)(2),

and of attempting to obtain a cash advance with an un-

authorized credit card, in violation of 18 U.S.C.

1029(b)(1). He was sentenced to 27 months of imprison-

ment, to be followed by three years of supervised

release, and was ordered to pay $38,985 in restitution.

The court of appeals affirmed. Pet. App. 2a-17a.

1. In June and July 2001, petitioner withdrew

thousands of dollars in cash from several Chicago-area

banks by using credit cards he had obtained through

fraudulent means. Petitioner obtained the credit cards

by sending fraudulent letters to the credit card issuers

in which he requested that the addresses of the legi-

timate account holders be changed and that new

replacement cards be sent to an address effectively

controlled by petitioner. Once in possession of the

credit cards, petitioner would visit Citibank and Bank

One branches in Chicago and request a cash advance by

presenting one of the credit cards and some form of

fictitious identification. Before his arrest, petitioner

obtained a total of $38,985 through such means. Gov’t

C.A. Br. 2.

On July 17, 2001, petitioner attempted to obtain a

cash advance at a Citibank branch. A teller recognized

him from prior visits that petitioner had made to the

bank to request cash advances under different names.

The teller stalled petitioner until the police arrived on

the scene. The officers arrested petitioner. At the time

of his arrest, petitioner had a fraudulently obtained

credit card and fake identification cards in the name of

the credit card holder. Gov’t C.A. Br. 3.

2. a. On August 15, 2001, a grand jury returned an

indictment charging petitioner with two counts of

credit card fraud. Petitioner retained counsel. At a

3

hearing before the district court on November 5, 2001,

petitioner’s counsel moved to withdraw from the case

because petitioner had twice refused to meet with him

and “substantial conflicts” had arisen between them.

Pet. App. 4a. The district court granted counsel’s mo-

tion and appointed petitioner counsel from the Federal

Defender Panel. Ibid.

At the next status hearing on December 7, 2001,

petitioner demanded a speedy trial. 12/7/01 Tr. 3. One

week later, during a bond hearing, petitioner’s counsel

discussed the possibility of a plea agreement, but

explained that the government’s lack of certainty about

petitioner’s criminal history presented an impediment.

12/14/01 Tr. 5. On December 21, 2001, the parties re-

turned to court and discussed the sentencing guidelines

that would likely apply to the case. The government

informed the court that petitioner had three prior

convictions, but petitioner contended that only two of

his prior convictions should be counted for purposes of

calculating his criminal history points. 12/21/01 Tr.

9-10. After the district court recommended to peti-

tioner’s counsel that he should consider a “disposition[]

short of a trial,” id. at 10, petitioner stated that he

would not accept a plea bargain and that he was ready

for trial, zd. at 11.

On February 6, 2002, five days before the scheduled

trial date, petitioner’s second counsel moved to with-

draw from the case. Ceunsel explained that petitioner

was refusing to meet or cooperate with him to prepare

for trial. 2/6/02 Tr. 2-3. After petitioner complained

that counsel had told him he lacked a viable defense and

stated that he wanted a lawyer who would “repre-

sent[]” him at trial, the district court allowed counsel to

withdraw and agreed to appoint petitioner his third

lawyer. Id. at 3-4. The court informed petitioner that,

4

while it would “appoint a lawyer who will represent

you[,] [t]his does not mean I will appoint a lawyer who

agrees with you. I will not necessarily appoint a lawyer

whose professional judgment believes there is a

defense.” Id. at 5. |

The district court rescheduled the trial date to April

2, 2002, to allow petitioner’s newly appointed counsel

sufficient time to prepare. When that day arrived, peti-

tioner told the district court that counsel “is not going

to be my lawyer,” 4/2/02 Tr. 3, and that “I am going to

go pro se,” id. at 4. Petitioner then requested 60 addi-

tional days to prepare for trial. Jd. at 3-4. The court de-

nied petitioner’s request for a continuance, stating:

I have set the schedule. I have seen in you a course

of conduct that has been nothing but an attempt to

frustrate the government’s effort to bring you to

trial, to play games, to demand a speedy trial, and

then to demand a continuance. This is your third

lawyer.

Id, at 4.

The district court informed petitioner that he had the

right to proceed as his own lawyer, but “strongly

advise[d]” him agzinst doing so. 4/2/02 Tr. 4. The court

explained:

If you wish to proceed pro se, you are entitled to do

so. The United States Constitution guarant([ees]

your right to proceed as your own lawyer. If you

wish to proceed as your own lawyer, I am required

to admonish you. Even if I weren’t required, I

would admonish you that to represent yourself in

any criminal case is a foolish act. You will almost

certainly make significant tactical errors. You will

almost certainly put yourself in a position where

even if you had a lawful defense, you would be

5

unable to present it in a coherent way. On top of it,

you will not, I think, adequately preserve the record

in this case if error has been made. So I strongly

advise you against representing yourself. But I do

tell you that that is your decision. You may choose

to represent yourself, or you may choose to have

Mr. Halprin represent you. The choice is yours.

Id. at 4-5. After the court advised petitioner again that

proceeding pro se “is a foolish thing to do,” id. at 6,

petitioner reaffirmed that he would represent himself,

id. at 7. The court appointed petitioner’s former coun-

sel as standby counsel. Jbid.

b. At trial, the government called several witnesses,

including the police officer who arrested petitioner and

found false identifications on his person; the Citibank

teller from whom petitioner had attempted to get cash

advances under the names of Grant Abbott, Hugh Ball,

and Eugene Kientzy; and Abbott and Kientzy, whose

identities petitioner had stolen. The government also

introduced bank surveillance photos of petitioner stand-

ing at teller counters as he tried to oktain cash in the

names of his victims. Petitioner presented no wit-

nesses or evidence in his defense. He was convicted on

both counts. Pet. App. 8a.

c. Petitioner filed a number of post-trial motions,

which the district court treated as a request for a new

trial. Pet. App. 8a. The court denied petitioner’s re-

quest, finding, inter alia, that: (1) petitioner “under-

stood that there was, in fact, no practical defense” to

the charges, 6/26/02 Tr. 11, and “knew from the begin-

ning that no lawyer could help him because no lawyer

could make a defense or an attack on the evidence in

this case,” id. at 12; (2) petitioner falsely attempted “to

portray himself as badly served by counsel,” id. at 11;

6

(3) petitioner falsely demanded a speedy trial, seeking

in reality “to forestall the day of reckoning because the

longer he waited for trial the longer he remained in the

United States,” id. at 12; (4) petitioner’s “decision to

proceed pro se was knowing and voluntary,” as he “fully

understood the risk[s] of going to trial without coun-

sel[,] and he assumed them in the hope that jury sympa-

thy or appellate review would somehow save him,” id.

at 13; and (5) petitioner sought to “manipulate[] the

system to [his] own benefit,” id. at 14.

3. The court of appeals affirmed. Pet. App. 2a-17a.

The court of appeals rejected petitioner’s contention

that the district court erred in permitting him to pro-

ceed pro se, concluding that petitioner “made a knowing

and intelligent waiver of his right to counsel when he

elected to represent himself at trial.” Jd. at 13a. In so

finding, the court recognized at the outset of its analysis

that “the Supreme Court has cautioned that a defen-

dant ‘should be made aware of the dangers and dis-

advantages of self-representation, so that the record

will establish that he knows what he is doing and his

choice is made with eyes open.’” /d. at 9a (quoting

Faretta v. California, 422 U.S. 806, 835 (1975)).

The court of appeals emphasized that the determina-

tion whether a defendant has made a knowing and

intelligent waiver “at all times is directed to the record

as a whole.” Pet. App. 10a. In addition, the court iden-

tified several factors it takes into account in evaluating

whether a waiver was knowing and intelligent:

“(1) whether and to what extent the district court con-

ducted a formal hearing into the defendant’s decision to

represent himself, (2) whether there is other evidence

in the record that establishes that the defendant

understood the disadvantages of self-representation,

(3) the background and experience of the defendant,

7

and (4) the context of the defendant’s decision to pro-

ceed pro se.” Id. at 9a-10a (quoting United States v.

Avery, 208 F.3d 597, 601 (7th Cir. 2000)). Observing

that “[tJhis is not a formalistic, mechanical approach,”

id. at 10a, the court of appeals emphasized that “[r]e-

gardless” of “these individual factors,” the “inquiry at

all times is directed to the record as a whole,” ibid.’

After examining “the totality of circumstances sur-

rounding [petitioner’s] purported waiver,” the court of

appeals held that the waiver of counsel “was made

knowingly and intelligently.” Pet. App. lla. The court

found first that “there is no question that the [district]

court satisfied its obligation to warn [petitioner] of the

dangers of self-representation,” noting that the court

told petitioner that self-representation was “a foolish

act that was likely to result in significant errors at

trial.” Jbid. The court found next that the record

lacked any suggestion that petitioner “was incapable of

understanding” the district court’s “repeated warn-

ings.” Ibid. As the court explained, petitioner gradu-

ated high school and attended two years of college, he

succeeded in temporarily defrauding banks of nearly

$39,000, and he was “no stranger to the criminal justice

system.” Ibid.

The court of appeals further found that “(t]he strong-

est evidence supporting a finding of waiver * * * is

that which suggests that [petitioner] was deliberately

manipulating the system in an attempt to create an

appealable issue.” Pet. App. 12a. In so concluding, the

! The court stated that, although a district judge may “conduct

a thorough and formal inquiry into the defendant’s understanding

of the court’s warnings,” the court’s “attention ultimately is di-

rected not at what was said or not said to the defendant but

whether that defendant in fact understood the risks and made a

knowing and intelligent waiver.” Pet. App. 10a.

8

court credited the district court’s findings that peti-

tioner “engaged in a pattern of obfuscation and ob-

structionism in his pretrial dealings with the court,”

and that petitioner’s misconduct was his “only practical

defense to charges that were so well supported by the

evidence as to be indefensible on their merits.” Jbid.

The court therefore “concur[red] with the district court

that [petitioner] fully understood the risk of going to

trial without counsel.” Jd. at 18a.

The court of appeals also rejected petitioner’s “fall-

back position” that the district court should have pre-

cluded him from proceeding pro se because he lacked

the ability to conduct the trial effectively. Pet. App.

13a. The court held that, under Godinez v. Moran, 509

U.S. 389, 399 (1993), petitioner’s competence to repre-

sent himself is irrelevant to the question whether he

executed a proper waiver of his right to counsel. Jbid.

ARGUMENT

Petitioner challenges the court of appeals’ conclusion

that he knowingly and voluntarily waived his right to

counsel at trial. In particular, petitioner argues that

the “warning that [he] received was inadequate to

enable him knowingly and intelligently to waive his

right to counsel.” Pet. 16. That contention is incorrect,

and further review is not warranted in this case.

l. a. In Faretta v. California, this Court held that

the Sixth Amendment guarantees a criminal defendant

the right to forgo counsel and conduct his own defense.

Because a defendant who represents himself “relin-

quishes * * * many of the traditional benefits associ-

ated with the right to counsel,” a defendant seeking to

proceed pro se “must ‘knowingly and intelligently’”

waive that right. 422 U.S. at 835 (quoting Johnson v.

Zerbst, 304 U.S. 458, 464-465 (1938)). To ensure that an

9

election to forgo counsel satisfies that standard, the

Court stated that a defendant who is contemplating

proceeding pro se “should be made aware of the dan-

gers and disadvantages of self-representation, so that

the record will establish that ‘he knows what he is

doing and his choice is made with eyes open.’” Ibid.

(quoting Adams v. United States, 317 U.S. 269, 279

(1942)). In Faretta, this Court found that the defendant

had validly waived his right to counsel, where the

defendant “clearly and unequivocally” expressed a

desire to proceed pro se; the record showed that he was

“literate, competent, and understanding”; and the trial

judge had warned him “that he thought it was a

mistake not to accept the assistance of counsel, and that

[the defendant] would be required to follow all the

‘ground rules’ of trial procedure.” Id. at 835-836.

b. Although it is well-established that a defendant

may not relinquish his right to counsel under the Sixth

Amendment unless the record establishes that he

knowingly and intelligently waived it, courts of appeals

have taken somewhat different approaches in ensuring

that a defendant’s waiver is knowing and intelligent.

The majority of courts of appeals, including the

Seventh Circuit, have concluded that while it may be

generally advisable for district courts to conduct

particularized record inquiries in determining whether

a defendant is aware of the dangers of self-repre-

sentation, the determination whether a defendant

knowingly and intelligently waived his right to counsel

ultimately should be based on the record as a whole,

rather than a formalistic inquiry into “what was said or

not said to the defendant.” Pet. App. 10a; see also, ¢.g.,

United States v. Turner, 287 F.3d 980, 982-984 (10th

Cir. 2002); United States v. Singleton, 107 F.3d 1091,

1098-1099 (4th Cir.), cert. denied, 522 U.S. 825 (1997);

pat eines nate ened rnin

10

United States v. Stewart, 20 F.3d 9i1, 917 (8th Cir.

1994); United States v. Campbell, 874 F.2d 838, 845-847

(1st Cir. 1989); United States v. Tompkins, 623 F.2d

824, 827-829 (2d Cir. 1980).

Some circuits have required a district court to con-

duct an on-the-record inquiry into a defendant’s aware-

ness of the risks of self-representation. See, e.g.,

United States v. Stubbs, 281 F.3d 109, 118 (3d Cir. 2002)

(district court “should only accept a waiver [of the right

to counsel] after making a searching inquiry sufficient

to satisfy the court that the defendant’s waiver was

understanding and voluntary.”); United States v.

Bailey, 675 F.2d 1292, 1800-1301 (D.C. Cir.) (calling on

district courts to “mak[e] clear on the record the aware-

ness by defendants of the dangers and disadvantages of |

self-representation as to which the Supreme Court in |

Faretta has voiced its concern”), cert. denied, 459 U.S.

853 (1982).

The Sixth Circuit, on which petitioner places princi-

pal reliance (see Pet. 10-12, 16), has gone a step further

and held that district courts should follow the “model

inquiry” in the Federal Justice Center, Bench Book for

United States District Judges (4th ed. 1996) before

accepting a defendant’s waiver of his right to counsel.

United States v. McDowell, 814 F.2d 245, 249-250 (6th |

Cir.), cert. denied, 484 U.S. 980 (1987). In McDowell, |

however, the Sixth Circuit did not hold that such an

inquiry was compelled by the Sixth Amendment. The

district court in McDowell did not engage in the sort of

“model inquiry” that the Sixth Circuit—in invoking its

“supervisory powers”—ruled should be conducted by

district courts. in “future” cases. [bid. Nonetheless, the

court of appeals in McDowell held that “a fair reading of |

the record as a whole” established that the defendant |

knowingly and intelligently waived his right to counsel,

ee

11

and therefore rejected the defendant’s Sixth Amend-

ment argument on appeal. /d. at 249.

c. The fact that some courts of appeals have taken

different approaches in giving effect to Faretta does not

support the petition for certiorari in this case. All the

circuits recognize that this Court’s decision in Faretta

establishes that a defendant “should be made aware of

the dangers * * * of self-representation, so that the

record will establish that ‘he knows what he is doing

and his choice is made with eyes open.’” 422 U.S. at

835. Although courts have called for different ap-

proaches in determining whether a defendant’s waiver

of his right to counsel is made with “eyes open,” this

Court’s decision in Faretta—and the Sixth Amendment

to the Constitution—is being faithfully applied in every

circuit, including the Seventh Circuit.

Moreover, even assuming the divergence of authority

in the lower courts warranted consideration by this

Court, this case would be an ill-suited vehicle in which

to address it. As the court of appeals concluded, the

record conclusively establishes that petitioner’s waiver

of his right to counsel was knowing and intelligent. See

Pet. App. lla-13a. Indeed, here, as in Faretta, the

record establishes that the defendant “clearly and une-

quivocally declared to the trial judge that he wanted to

represent himself”; the record establishes that the

defendant was “literate, competent, and understand-

ing”; and the record establishes that “[tJhe trial judge

* * * warned [the defendant] that he thought it was a

mistake not to accept the assistance of counsel.”

Faretta, 422 U.S. at 835-836; see Pet. App. 12a-13a.

While in the Sixth Circuit a district court would have

been required to engage in a more formulaic inquiry in

warning a defendant of the hazards of self-representa-

tion, the record in this case leaves no reasonable doubt

eo

12

that the command of Faretta was fulfilled. The district

court advised petitioner of “the dangers and disadvan-

tages of self-representation,” and petitioner chose to

proceed pro se “with eyes open.” Faretta, 422 U.S. at |

835. As discussed above, the district court “strongly |

advise[d]” petitioner against forgoing counsel; told him

that self-representation “in any criminal case is a foolish

act”; warned him that he would “almost certainly make

significant tactical errors”; warned him thai, even if he

“had a lawful defense,” he “almost certainly” would fail

“to present it in a coherent way”; and warned that,

“{ojn top of it, you will not, I think, adequately preserve

the record in this case if error has been made.” 4/2/02

Tr. 4-5. During the same hearing, the court reiterated

that proceeding pro se would be “a foolish thing to do.”

Id. at 6. Accordingly, the record in this case firmly

supports the lower courts’ findings that petitioner

knowingly and voluntarily waived his right to counsel.

d. This case is an unsuitable vehicle to review the

conflict alleged by petitioner for an even more funda-

mental reason. Apart from any obligation to warn a

defendant about the dangers of self-representation in

any particular or formalistic manner, it is well-estab-

lished that a defendant may not use the Sixth Amend-

ment right of self-representation to manipulate the trial

system. See Faretta, 422 U.S. at 834-835 & n.46 (“The

right of self-representation is not a license to abuse the

dignity of the courtroom.”); United States v. Frazier-

El, 204 F.3d 553, 560 (4th Cir. 2000) (“The right [to self-

representation] does not exist * * * to be used as a

tactic for delay; for disruption; for distortion of the

system.”) (citations omitted).

Similarly, most lower courts have recognized that a

district court may infer that a defendant has knowingly

and intelligently waived his right to counsel when the

SER

13

court finds that the defendant seeks to discharge his

attorney in order to delay or to sabotage the trial. See,

e.g., Cordova v. Baca, 346 F.3d 924, 929 (9th Cir. 2003)

(“[M]anipulation presupposes knowledge and an ability

to work around the rules, and a defendant who knows

enough to manipulate will very likely be one whose

waiver will be deemed voluntary, despite any defect in

the admonitions given by the court.”); see also Nelson

v. Alabama, 292 F.3d 1291, 1297-1298 (11th Cir. 2002)

(citing Fitzpatrick v. Wainwright, 800 F.2d 1057, 1068

(11th Cir. 1986)); United States v. Irorere, 228 F.3d 816,

826-828 (7th Cir. 2000); United States v. Kneeland, 148

F.3d 6, 11 (1st Cir. 1998); United ‘States v. Kelm, 827

F.2d 1319, 1322 (9th Cir. 1987); McQueen v. Blackburn,

756 F.2d 1174, 1178 (5th Cir.), cert. denied, 474 U.S. 852

(1985); cf. Buhl v. Cooksey, 233 F.3d 783, 796 (3d Cir.

2000). In addition, some lower courts have found that,

when a defendant moves for self-representation in

order to delay or manipulate the trial, the district court

may find that the defendant waived his right to counsel

without conducting a Faretta inquiry. United States v.

Hughes, 191 F.3d 1317, 1823-1324 (10th Cir. 1999), cert.

denied, 529 U.S. 1022 (2000).

As the court of appeals emphasized, the district court

in this case found that petitioner sought to deliberately

manipulate the system by engaging in “a pattern of

. obfuscation and obstructionism.” Pet. App. 12a. Those

findings are “entitled to deference on appeal,” ibid., and

by this Court. And the findings in themselves “support

2 In Buhl, the Third Circuit concluded that there were no

“dilatory motives” on the part of defendant, but nonetheless went

on to state, in dicta, that “we do not suggest that a finding of such

motives would negate the court’s duty to inquire under Faretta.”

233 F.3d at 796.

14

a conclusion that [petitioner] knew full well what he

was doing when he asked to proceed pro se.” Ibid.*? The

conclusive record evidence that petitioner sought te

deliberately manipulate the system is sufficient reason

to deny the petition for certiorari in this case.

2. Petitioner also suggests (Pet. 16-26) that the peti-

tion should be granted so that the Court may revisit

Faretta. That contention also should be rejected.

This Court has on several occasions reaffirmed its

decision in Faretta. In McKaskle v. Wiggins, 465 U.S.

168, 173-174 (1984), the Court reaffirmed the rule an-

nounced in Faretta, while holding that the Constitution

does not vest the defendant with an absolute right to

preclude the participation of standby counsel. See zd.

at 176-188. In Godinez v. Moran, 509 U.S. 389, 399-400

(1993), the Court again reaffirmed Faretta. In Mar-

tinez v. Court of Appeal of California, 528 U.S. 152

(2000), this Court held that the Constitution does not

vest criminal defendants with a right to represent

themselves on appeal. The Court held that the justi-

fications for the Faretta rule either do not apply at all,

or apply with significantly reduced force, to the appel-

late phase of criminal proceedings. See id. at 156-162.

But Martinez did not concern the right of self-repre-

sentation at trial and, therefore, did not affect the

continuing vitality of Faretta with regard to the right of

self-representation at trial. Nor is there any evidence

in the decision below or other cases that the courts of

3 As the court of appeals explained, the district court’s findings

that petitioner sought to deliberately manipulate the system were

corroborated by its conclusion that “this conduct was [petitioner’s]

only practical defense to charges that were so well supported by

the evidence as to be indefensible on their merits.” Pet. App. 12a;

see id. at 14a-15a (discussing the “overwhelming evidence” of peti-

tioner’s guilt).

15

appeals are laboring in any “lingering uncertainty about

the validity of Faretta in the wake of * * * Martinez.”

Pet. 23.

Petitioner provides no persuasive reason for the

Court to reconsider Farretta, much less to do so in a

case, such as this, in which the lower courts found that

the defendant sought to deliberately manipulate the

system by invoking his right to self-representation,

Pet. App. 12a, and in which there was “overwhelming

evidence” of the defendant’s guilt, id. at 14a.‘ Peti-

tioner claims (Pet. 25) that he did not perform as an

effective advocate at trial, and that as a result his

conviction was unfairly obtained. The court of appeals

correctly rejected that argument, however, when

petitioner framed it as “a denial of his due process right

to a fair trial.” See Pet. App. 13a-15a.°

4 Petitioner contends (Pet. 24 & n.5) that permitting self-

representation will undermine confidence in the criminal justice

system, citing the prosecution of Zacarias Moussaoui as an exam-

ple of self-representation run amok. But “the trial judge may ter-

minate self-representation by a defendant who deliberately en-

gages in serious and obstructionist misconduct,” Faretta, 422 U.S.

at 834 n.46, as the district court in the Moussaoui case did on

November 14, 2003.

> Petitioner asserts (Pet. 25) that, while he “may have been

competent to stand trial”—and thus competent to waive his right

to counsel under Godinez—“it was clear” that “he was unlikely to

be able to mount a competent defense.” But the district court

found that “even with the best lawyer the result would have been

the same,” 6/26/02 Tr. 13, because petitioner did not have a viable

defense, id. at 11; see also Pet. App. 14a-15a. In addition, as the

court of appeals explained, petitioner’s educational background and

experience with the criminal justice system (see 12/21/01 Tr. 9-10)

belie the notion that he was incapable of conducting his own

defense, albeit not with the skill of a trained attorney.

16

3. There is no reason to hold this petition pending

the disposition in Jowa v. Tovar, No. 02-1541 (argued

Jan. 21, 2004). Tovar involves the waiver of the right to

counsel by a defendant who pleaded guilty. As peti-

tioner himself acknowledges (Pet. 27), the Court’s deci-

sion in Tovar is unlikely to “address the requirements

for waiver of the right to counsel at trial, much less the

ongoing validity of the right to self-representation at

trial.” In addition, in its amicus brief in Tovar, the

United States has argued that substantially different

standards should apply to the waiver of counsel at trial

and the waiver of counsel for purposes of entering a

guilty plea. Regardless of what standards govern a

defendant’s waiver of counsel at the plea stage, those

standards could not affect the validity of petitioner’s

conviction in this case. Petitioner retained the assis-

tance of counsel at the plea stage and declined to plead

guilty.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

CHRISTOPHER A. WRAY

Assistant Attorney General

JONATHAN L. MARCUS

Attorney

FEBRUARY 2004

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