UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4514
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO O. CURRY, II,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:12-cr-00163-WDQ-1)
Submitted: May 30, 2014 Decided: June 5, 2014
Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lee Ann Anderson McCall, Amanda F. Davidoff, Elizabeth A.
Cassady, Jared P. Roscoe, James H. Congdon, SULLIVAN & CROMWELL
LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Gregory R. Bockin, David I. Sharfstein,
Assistant United States Attorneys, Hannah E. Logue, Student Law
Clerk, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo O. Curry, II, was convicted following a jury
trial of two counts of aiding in the preparation of a fraudulent
tax return, in violation of 26 U.S.C. § 7206(2) (2012), four
counts of bankruptcy fraud, in violation of 18 U.S.C. §§ 157(2),
2 (2012), four counts of falsification of records in bankruptcy,
in violation of 18 U.S.C. §§ 1519, 2 (2012), and making false
statements in connection with a bankruptcy case, in violation of
18 U.S.C. §§ 152(2), 2 (2012). Curry received a total sentence
of eighty-seven months’ imprisonment. On appeal, Curry argues
that the district court (1) erred in determining that he
knowingly, intelligently, and voluntarily waived his Sixth
Amendment right to counsel; and (2) failed to adequately protect
his due process rights. We affirm.
The Sixth Amendment guarantees criminal defendants the
right to counsel, and, if indigent, the right to appointed
counsel. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963);
Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938). The Sixth
Amendment’s guarantee of counsel also “necessarily implies the
right of self-representation.” Faretta v. California, 422 U.S.
806, 832 (1975). The right to self-representation “must be
preserved even if the court believes that the defendant will
benefit from the advice of counsel.” United States v.
Singleton, 107 F.3d 1091, 1095-96 (4th Cir. 1997).
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This Court reviews de novo a district court’s
determination that a defendant has waived his Sixth Amendment
right to counsel. Id. at 1097 n.3. A defendant who asserts the
right of self-representation must do so (1) clearly and
unequivocally; (2) knowingly, intelligently, and voluntarily;
and (3) in a timely fashion. United States v. Frazier-El, 204
F.3d 553, 558 (4th Cir. 2000). “The requirement that the
assertion be clear and unequivocal is necessary to protect
against an inadvertent waiver of the right to counsel by a
defendant’s occasional musings,” and “prevents a defendant from
taking advantage of and manipulating the mutual exclusivity of
the rights to counsel and self-representation.” United States
v. Bush, 404 F.3d 263, 271 (4th Cir. 2005) (internal quotation
marks omitted).
A defendant “should be made aware of the dangers 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.” Faretta, 422 U.S. at 835 (internal quotation
marks omitted). “The determination of whether there has been an
intelligent waiver of right to counsel must depend, in each
case, upon the particular facts and circumstances surrounding
that case, including the background, experience, and conduct of
the accused.” Johnson, 304 U.S. at 464; see Singleton, 107 F.3d
at 1097-98.
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We conclude that the district court did not err in
granting Curry’s request to waive counsel and proceed pro se.
Our review of the record demonstrates that Curry clearly and
unequivocally asserted his right to self-representation.
Throughout the proceedings, Curry never requested the
appointment of counsel and did not avail himself of standby
counsel but remained adamant about his desire to represent
himself.
Curry’s election to proceed pro se was also knowing,
intelligent, and voluntary. The record reflects that at the
time he waived his right to counsel, Curry understood the legal
proceedings and was aware of the nature of the charges against
him and the penalties he faced if convicted. On multiple
occasions, Curry was informed of the disadvantages of self-
representation and was advised to obtain counsel. Despite these
safeguards, he elected to proceed pro se.
Curry also argues that the district court erred in
failing to sua sponte terminate his self-representation when it
became apparent during the trial that he would not participate
in the proceeding. Although a “trial judge may terminate self-
representation by a defendant who deliberately engages in
serious and obstructionist misconduct,” Faretta, 422 U.S. at 834
n.46, Curry’s failure to effectively defend himself did not
significantly obstruct or disrupt the trial proceedings.
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Moreover, “a criminal defendant’s ability to represent himself
has no bearing upon his competence to choose self-
representation.” Godinez v. Moran, 509 U.S. 389, 400 (1993).
“[A]lthough [a defendant] may conduct his own defense ultimately
to his own detriment, his choice must be honored out of that
respect for the individual which is the lifeblood of the law.”
Faretta, 422 U.S. at 834. Therefore, the adequacy of Curry’s
performance during trial has no bearing on the fact that his
waiver of counsel was knowing, intelligent, and voluntary.
Next, Curry contends that he was denied his right to a
fair trial under the Due Process Clause. “[T]he right of an
accused in a criminal trial to due process is, in essence, the
right to a fair opportunity to defend against the State’s
accusations.” Montana v. Egelhoff, 518 U.S. 37, 52 (1996).
While Curry opted not to participate in the jury selection, call
witnesses or present evidence, or make objections during trial,
the district court provided Curry every opportunity to defend
against the charges, including the opportunity to cross-examine
witnesses and to testify in his own defense, and provided him
the benefit of standby counsel.
Because these procedural safeguards were available to
Curry, he was afforded the protections of the due process of the
law. His refusal to take advantage of those protections is not
equivalent to their denial. Again, while Curry “conduct[ed] his
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own defense ultimately to his own detriment,” Faretta, 422 U.S.
at 834, the district court honored his choice by abstaining from
interfering with his right to self-representation. We therefore
conclude that Curry has not demonstrated that the district
court’s conduct resulted in an unfair trial.
Accordingly, we affirm the district court’s judgment.
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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