United States v. Tucker

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
June 28, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 05-3259
ROGER D. TUCKER,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. NO . 03-CR-10220-01-M LB)

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. M oore,
Federal Public Defender, with him on the briefs), Denver, Colorado for
Defendant-Appellant.

M att Treaster, Assistant United States Attorney (Eric F. M elgren, United States
Attorney, with him on the brief), W ichita, Kansas for Plaintiff-Appellee.

Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.

Roger D. Tucker was charged with one count of being a felon in possession

of a firearm and one count of being a felon in possession of ammunition, both in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After a jury trial, he was
convicted of the ammunition count and acquitted of the firearm count. On appeal,

M r. Tucker raises three arguments challenging his conviction. He claims that the

district court erred in denying his pretrial request to proceed pro se, that the

district court erred in not inquiring into his pretrial complaints about a breakdow n

in comm unication with his attorney, and that the district court erred in allowing

an attorney to serve as standby counsel during sentencing after that attorney had

previously withdraw n because of a conflict of interest. Because the district court

erred by not allowing M r. Tucker to represent himself during voir dire, we

exercise jurisdiction under 28 U.S.C. § 1291 and reverse M r. Tucker’s conviction

and remand for a new trial.

I. Background

M r. Tucker w as indicted for two separate violations of federal firearm law s

on December 17, 2003. Shortly after his indictment, Timothy J. Henry of the

Office of the Federal Public D efender entered an appearance as M r. Tucker’s

attorney, and trial was scheduled for M arch 16, 2004. On February 24, however,

M r. Henry filed a motion to withdraw as counsel because his office had a conflict

of interest. The court granted M r. Henry’s motion and appointed Jon S. W omack,

from the federal appointments list, as counsel for M r. Tucker. On M arch 15, M r.

Tucker, through his attorney M r. W omack, filed a motion for a continuance

because of M r. W omack’s recent appointment and unfamiliarity with the case.

The district court granted the motion and rescheduled the trial for June 9, 2004.

-2-
 Throughout pretrial preparations, M r. Tucker complained about M r.

W omack’s lack of communication with him. On M arch 29, 2004, during a status

conference, M r. Tucker informed the district court that M r. W omack incorrectly

asserted that he had communicated with M r. Tucker three times and that M r.

W omack had, in fact, seen M r. Tucker only once. M r. Tucker also stated his

intention to file an ineffective assistance of counsel claim against M r. W omack.

During another status conference on June 7, 2004, M r. W omack informed the

court that he does not “have a good relationship with M r. Tucker.” Supp. R. Vol.

III, p. 3. He explained to the court that M r. Tucker “physically threatened” him

and “[w]ould not talk to [him] about the case.” Id. at 3-4. M r. W omack asked the

court to either continue the trial or to allow him to withdraw. The court denied

M r. W omack’s motion to withdraw, but granted a second continuance in the

interest of justice.

On June 21, 2004, M r. Tucker told a Deputy United States M arshal who

was accompanying him to the courtroom that “his attorney has pushed him over

the limit and has him stressed out.” R. Vol. I, Doc. 35. He also said that “voices

are telling him to kill his attorney” and that “he was not certain what would

happen when [he] would get around his attorney.” Id. As a result of M r.

Tucker’s comments, the government filed a motion for a psychological

examination and evaluation to determine whether M r. Tucker was competent to

stand trial. The district court granted the government’s motion and scheduled a

-3-
competency hearing for November 15, 2004. At the competency hearing, M r.

Tucker w aived an evidentiary hearing and accepted the findings in the psychiatric

reports that deemed him competent to assist counsel and sane at the time of the

alleged offenses. M r. Tucker did not voice any complaints about M r. W omack at

the November 15 hearing.

The jury trial was scheduled for M arch 1, 2005. That day, during a pretrial

motion hearing before voir dire, M r. W omack informed the court:

M y client still doesn’t want me handling this case because he wants
me to call witnesses that I deem it improper to call because I think it
would be malpractice. And so I’m just not going to call ’em. And I
told him that I would mention to the Court that for that reason he
doesn’t want me handling this case. And so I guess I’ve done that.

R. Vol. VI, p. 13. As the district court was explaining voir dire procedures, M r.

Tucker stated, “I’d like to make a proper objection for the record. I would like to

defend myself in this case. It’s my Sixth Amendment right.” Id. at 14-15. The

district court denied M r. Tucker’s request. The court explained:

[T]his case has been on file — I don’t know how long, frankly, this
case has been on file. . . . There have been a lot of delays in this case
in part because of the necessity to have M r. Tucker examined. And
that took quite a while, of course, as it always does. But this case
has been set for trial for an awfully long time; and as the record will
reflect, this is the morning of trial. This is the first time, although
M r. Tucker has objected to his attorney in the past and even
threatened him, this is the first time M r. Tucker has ever indicated
that he would like to represent himself. And pursuant to the case of
[United States v. M ackovich, 209 F.3d 1227 (10th Cir. 2000)], the
Court finds that M r. Tucker’s request to represent himself is solely
for the purpose of delay and to obstruct this case. So that request is
denied.

-4-
Id. at 15-16. After hearing the district court’s explanation, M r. Tucker clarified

that he was not “ask[ing] to delay the proceedings at all.” Id. at 16. The court

restated its ruling, noting that “[i]t would delay the proceedings considerably,”

that M r. Tucker should have asked to represent himself “months ago,” and that his

motion was “for the purpose of delay and for the purpose of harassment and for

the purpose of obstructing the progress of this case.” Id.

Following the denial of M r. Tucker’s request to represent himself, the

district court proceeded with voir dire, during which M r. Tucker was represented

by M r. W omack. After the jurors had been selected, but before they were sworn

in, the district court revisited M r. Tucker’s earlier request to represent himself.

The court held a hearing at which only the judge, M r. Tucker, M r. W omack, U.S.

M arshals, court staff, and court security were present. During the hearing, M r.

Tucker explained that he made the decision to represent himself that morning

when M r. W omack announced that he was not calling the witnesses M r. Tucker

wanted him to call. After listening to M r. Tucker’s proposed defenses and

proposed witnesses and explaining to him that most of the defenses were frivolous

and that subpoenas would not issue for most of the witnesses, the court ruled that

M r. Tucker could represent himself. Specifically, the court found that M r. Tucker

had clearly and unequivocally asserted his intention to represent himself and that

his waiver of the right to counsel was knowingly and intelligently made. The

court also discussed the timeliness of M r. Tucker’s motion, noting that “[a]ll of

-5-
the motions for continuance . . . were reasonable, responsible motions,” and

accordingly did not find M r. Tucker’s motion to be untimely. Id. at 61. In

explaining its decision to government counsel, the court said, “I’ve satisfied

myself, even though I think it is a completely stupid decision on his part, I’m

compelled by what I consider to be not very good law to permit him to represent

himself.” Id. at 64.

At trial, M r. Tucker appeared pro se and M r. W omack served as standby

counsel. On M arch 4, 2005, the jury returned a guilty verdict on the ammunition

possession charge, but found him not guilty of possessing a firearm. On June 29,

2005, the district court entered a final judgment sentencing M r. Tucker to 120

months’ imprisonment. M r. Tucker filed a timely appeal on June 30, 2005.

II. Discussion

Although the district court ultimately granted M r. Tucker’s request to

proceed pro se, M r. Tucker claims that the district court erred in denying him the

right to represent himself during voir dire. W e review the district court’s factual

findings for clear error, but we review the ultimate question of w hether a

constitutional violation occurred de novo. United States v. M ackovich, 209 F.3d

1227, 1236 (10th Cir. 2000).

A criminal defendant has a constitutional and statutory right to waive

counsel and represent himself. Faretta v. California, 422 U.S. 806, 834-36

(1975). This right includes the right to control one’s own defense, “to make

-6-
motions, to argue points of law, to participate in voir dire, to question witnesses,

and to address the court and the jury at appropriate points in the trial.” M cKaskle

v. Wiggins, 465 U.S. 168, 174 (1984). W hen a defendant properly invokes the

right to self-representation, the denial of any one of those elements is a denial of

the right to self-representation. See id. Deprivation of the right to self-

representation requires automatic reversal because the impact of “its denial is not

amenable to ‘harmless error’ analysis.” Id. at 177 n.8. Accordingly, the only

question presented here is whether M r. Tucker properly invoked his right to self-

representation prior to voir dire. If so, then the district court’s summary denial of

his request to proceed pro se before voir dire violated his Sixth Amendment right

to represent himself.

To properly invoke the right to self-representation, a defendant must satisfy

four requirements. First, the defendant must “clearly and unequivocally” inform

the district court of his intention to represent himself. M ackovich, 209 F.3d at

1236 (internal quotation marks omitted). Second, the request must be timely and

not for the purpose of delay. See id. Third, the court must conduct a

comprehensive formal inquiry to ensure that the defendant’s w aiver of the right to

counsel is “knowingly and intelligently” made. Id. (internal quotation marks

omitted). Finally, the defendant “must be ‘able and willing to abide by rules of

procedure and courtroom protocol.’” United States v. Smith, 413 F.3d 1253, 1279

(10th Cir. 2005) (quoting M cKaskle, 465 U.S. at 173). The government does not

-7-
challenge that M r. Tucker’s initial pre-voir dire request to represent himself was

clear and unequivocal or that his ultimate waiver was made knowingly and

intelligently. Instead, the government claims that the district court properly

denied M r. Tucker’s request because his request was untimely and a tactic for

delay, and because M r. Tucker had demonstrated an inability to comply with

courtroom procedures.

This Circuit has not announced a bright-line rule for determining whether a

request for self-representation is untimely. However, other circuits have held that

a request to proceed pro se is timely if it is made before the jury is impaneled and

not intended as a tactic for delay. Avila v. Roe, 298 F.3d 750, 753 (9th Cir. 2002)

(“[A] Faretta request is timely if made before jury impanelment, ‘unless it is

shown to be a tactic to secure delay.’” (quoting Fritz v. Spalding, 682 F.2d 782,

784 (9th Cir. 1982))); United States v. Young, 287 F.3d 1352, 1354 (11th Cir.

2002) (“[A] defendant’s request to proceed pro se is untimely if not made before

the jury is empaneled.”); United States v. Betancourt-Arretuche, 933 F.2d 89, 96

(1st Cir. 1991) (explaining that a request for self-representation is timely only if

asserted before the jury is impaneled, and finding a request made after the jury

was sworn untimely); Chapman v. United States, 553 F.2d 886, 887 (5th Cir.

1977) (“[A] demand for self-representation must be honored as timely if made

before the jury is selected, absent an affirmative showing that it was a tactic to

secure delay.”); United States ex rel. M aldonado v. Denno, 348 F.2d 12, 15 (2d

-8-
Cir. 1965) (“The right of a defendant in a criminal case to act as his own lawyer

is unqualified if invoked prior to the start of the trial.”).

The government relies on our decision in Smith, 413 F.3d at 1281, to argue

that M r. Tucker’s request was untimely because it w as made on the day of trial.

In Smith, the defendant asked to represent himself six days before trial. Id. at

1279-80. In finding his request untimely, we stated:

W hile we have never determined precisely when a request to proceed
pro se becomes untimely, we have found waiver when a defendant
failed to assert the right clearly until six days before trial— which is
the exact circumstance we face here. W e conclude, then, that in this
case M r. Smith’s request to represent himself was untimely.
Although the jury had not yet been impaneled, M r. Smith asserted his
right to self-representation six days before trial in a case that had
been going on for nearly a year, that had already been continued, and
that involved complex issues that would mandate another lengthy
continuance to allow M r. Smith to prepare for his own defense.

Id. at 1281 (internal citation omitted). Relying on the language at the beginning

of this paragraph, the government contends that M r. Tucker’s request, made less

than six days before trial, was necessarily untimely. W e decline to read Smith so

broadly.

Rather than creating a general rule at odds with that adopted by our sister

circuits, Smith found the defendant’s request untimely under the specific

circumstances of the case. The Court acknowledged the general rule— noting that

“the jury had not yet been impaneled”— but relied on case-specific factors that

made it proper for the district court to deny the defendant’s motion. Specifically,

-9-
the Court noted that the defendant waited until six days before trial to assert his

right to represent himself, that the case “had been going on for nearly a year,” had

already been continued, and “involved complex issues that would mandate

another lengthy continuance” if the request was granted. Id. The Court also

relied on elements of the defendant’s behavior suggesting that “M r. Smith was

intending only to continue the case and delay the prosecution,” namely, that “M r.

Smith refused to speak to his attorneys altogether— even in front of the presiding

judge” and “threatened to disobey the court’s instructions not to speak during

trial.” Id. at 1280.

W e therefore reject the government’s argument that a motion for self-

representation made six days before trial is per se untimely. Smith is entirely

consistent with the prevailing rule that a motion for self-representation is timely

if it is made before the jury is impaneled, unless it is a tactic to secure delay.

Applying that standard, the government also argues that M r. Tucker’s

motion for self-representation was a tactic for delay. As our precedents show, the

determination whether a motion for self-representation is a tactic to secure delay

does not rest exclusively on evidence of the subjective intentions of the

defendant, but includes such considerations as the actual delay that would be

caused by granting the motion, whether the delay could have been avoided if the

defendant had made the request for self-representation earlier, and whether the

defendant had good reasons for not making the motion in a more timely manner.

-10-
In M ackovich, 209 F.3d at 1237, we noted that the defendant not only sought and

received three continuances, but coupled his request for self-representation made

on the first day of trial w ith a fourth motion for continuance and “threatened to

‘stand mute’ and withhold his participation” w hen his motion was denied. In

Smith, 413 F.3d at 1281, we noted that the defendant waited nearly a year before

making the motion (with no apparent reason), that the case had already been

continued, and that granting the motion would entail “another lengthy

continuance.” W e also characterized the defendant’s actions as a “‘cat and

mouse’ game” because he “refused to speak to his attorneys altogether” and

“threatened to disobey the court’s instructions not to speak during trial.” Id. at

1280-81.

The record in this case contains no such manifestations of dilatory intent.

M r. Tucker first complained about his counsel’s representation eleven months

before trial, leading M r. W omack to file a motion to withdraw, which was denied.

Later, on the advice of “voices,” M r. Tucker said he w as considering killing M r.

W omack. R. Vol. I, Doc. 35. This won him a competency hearing but no hearing

on the adequacy of representation. On the morning of trial, M r. W omack

informed the court that M r. Tucker “still doesn’t want me handling this case.” R.

Vol. VI, p. 13. After his motion for self-representation was denied and voir dire

had been conducted with M r. W omack still in the counsel seat, M r. Tucker told

the court that he had made the motion for self-representation on the morning of

-11-
trial because he had just learned M r. W omack was not going to call specific

witnesses he had explicitly requested. W hen the district court observed that

granting his request would delay the proceedings, M r. Tucker responded that he

was not asking for a continuance. Upon reconsidering M r. Tucker’s motion after

voir dire, the district court concluded that “all of the [previous] motions for

continuance . . . were reasonable, responsible motions,” and did not find that M r.

Tucker was seeking to represent himself solely for the purpose of obtaining a

third continuance. Id. at 61. M r. Tucker was ready and willing to proceed pro se

with the trial scheduled that morning, and did, in fact, proceed to trial w ithout a

continuance immediately after the district court granted his request for self-

representation.

The government relies on the district court’s initial ruling, before voir dire,

that M r. Tucker’s motion was “for the purpose of delay and for the purpose of

harassment and for the purpose of obstructing the progress of [the case], which

has gone on before.” Id. at 16. W e ordinarily would accord great deference to the

trial court’s evaluation of the defendant’s motives, in light of the court’s ability to

observe the defendant’s demeanor and the importance of the court’s authority to

control its docket. In this case, however, the district court reconsidered its initial

ruling. After voir dire, and without any renewal of the motion by M r. Tucker, the

district court chose to revisit the issue of pro se representation. The court then

held a Faretta hearing and reluctantly granted the motion on the ground that it

-12-
felt “compelled” by law to do so. Id. at 64. Although the court did not explicitly

disavow its earlier comments regarding M r. Tucker’s intentions, the later ruling

necessarily constituted a disavowal. Nothing had happened in the intervening

hours that was relevant to the M ackovich standards. Given the unidirectional

character of time, the motion could not have been more timely when it was

granted than when it originally was made. If there had been any reason to think

M r. Tucker had been playing a “cat and mouse” game w ith the court when he

made the motion, those reasons would have continued to exist after voir dire and

the court would not have been legally “compelled” to grant the motion. That the

district court felt compelled to grant the motion necessarily means that the court

concluded, on reflection and after the hearing, that the motion was timely and not

a tactic for delay.

The government also suggests that M r. Tucker “would both interrupt and

argue with the trial court.” Br. of Appellee 8. Even in its initial ruling, prior to

voir dire, the district court did not find that M r. Tucker was unable to abide by

rules of procedure and courtroom protocol. As with the timeliness issue, the

district court’s subsequent ruling that it was legally compelled to grant M r.

Tucker’s motion necessarily entails a finding that M r. Tucker satisfied this

criterion. There is insufficient support in the record to support an appellate

finding to the contrary.

-13-
 III. Conclusion

M r. Tucker’s motion for self-representation, made before jury selection,

was not for the purpose of delay and was therefore timely. Accordingly, the

district court erred in denying his motion to proceed pro se. Because this error is

not amenable to harmless error analysis, we REVERSE M r. Tucker’s conviction

on the ammunition count and R EM AND for a new trial without considering M r.

Tucker’s remaining claims.

-14-