In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1523
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREDERICK E. AVERY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 98 CR 101--David F. Hamilton, Judge.
Argued December 6, 1999--Decided March 31, 2000
Before Bauer, Diane P. Wood and Evans, Circuit
Judges.
Bauer, Circuit Judge. Frederick E. Avery
("Avery") was indicted by a federal grand jury in
the Southern District of Indiana; four counts of
being a felon in possession of a firearm in
violation of 18 U.S.C. sec.922(g)(1) and three
counts of making false statements in connection
with the acquisition of firearms in violation of
18 U.S.C. sec.922(a)(6). At trial, Avery
represented himself and the jury found him guilty
on all counts. Avery appeals, claiming that his
waiver of counsel was not knowing and voluntary
and that even if it was he should have been given
another continuance of the trial date to prepare
his defense. He also appeals the District Court’s
denial of his motion to compel the government to
produce certain evidence. We affirm.
I. BACKGROUND
In 1987, Avery was convicted in New York state
under the name Earl Avery of criminal sale of a
controlled substance, a Class C felony. He was
sentenced to six months in prison and five years
probation.
Despite a federal law which prohibits a felon
from possessing a firearm, on August 4, 1997,
Avery purchased two firearms, a Bryco .380 pistol
and a Lorcin .25 caliber pistol, from Don’s Guns
in Indianapolis. After selecting the guns, Avery
filled out the necessary paperwork, using the
name Frederick Avery. One of the forms, ATF Form
4473, asks "Have you ever been convicted in any
court for a crime for which the judge could
imprison you for more than one year, even if the
judge actually gave you a shorter sentence?"
Avery incorrectly answered "No."
One week later, on August 11, 1997, Avery
purchased four more guns at Don’s Guns, a Davis
.380 pistol, a Mossberg .12 gauge pistol grip
shotgun, a Lorcin .25 caliber pistol, and a
Freedom Arms .22 caliber pistol. He filled out
the paperwork again, and again responded that he
had never been convicted of a felony. That same
day Avery applied for an Indiana handgun license
in the name of Frederick Avery. He falsely stated
on the application that he had never been
convicted of a felony offense. Based upon this
false application, Avery was given an Indiana
handgun license.
Apparently still in need of guns, on February
27, 1998, Avery went to Don’s Guns and bought a
Llama .45 caliber pistol, a Davis .380 caliber
pistol, and a Lorcin .25 caliber pistol. In
filling out ATF Form 4473, Avery again denied
ever having been convicted of a felony. He also
used his fraudulently obtained Indiana handgun
license for identification to purchase the
weapons.
At approximately 3:00 a.m. on February 28,
1998, Avery was stopped for a traffic violation
by an Indianapolis Police Department officer. He
had the Llama .45 caliber pistol he had purchased
the day before, fully loaded and holstered on his
hip. He also had the fully loaded Freedom Arms
.22 caliber pistol in his pocket.
Sometime thereafter, one of the guns purchased
by Avery was found in a Brooklyn apartment by New
York Police Department officers executing a
search warrant. The gun was traced back to Avery.
A computer search revealed that Avery had
purchased that gun, along with several others, at
Don’s Guns in Indianapolis. Authorities began
investigating Avery and learned that he was a
convicted felon.
Avery was arrested and charged with four counts
of being a felon in possession of a firearm, one
count for each of the three times he purchased
weapons at Don’s Guns and one count for having
firearms on his person when he was stopped for
the traffic offense on February 28, 1998. He was
also charged with three counts of making false
representations in connection with the
acquisition of firearms, once for each of the
three times he wrongly denied on ATF Form 4473
that he had been convicted of a felony.
During his initial court appearance, an attorney
from the public defender’s office was assigned to
represent Avery. Avery quickly became
dissatisfied with that lawyer and within one
month after the appointment filed a pro se motion
to dismiss him as counsel. In the motion, Avery
complained that the lawyer was not zealously
representing him, that he and the lawyer clashed
over defense strategy and that the lawyer refused
to file certain pre-trial motions deemed
necessary by Avery. The court granted Avery’s
motion and appointed a new lawyer to represent
him.
Less than one week after receiving the
appointment, the new lawyer filed a motion to
continue the trial, which was scheduled to begin
the following week. Avery professed his
discontent at the potential postponement of his
trial. Nonetheless, the trial court granted the
motion and continued the trial for approximately
one month.
Within days of the court’s rescheduling of his
trial Avery filed a letter and a pro se "Motion
to Allow Defendant to Participate in Remainder of
Proceedings as Co-Counsel." In it, Avery
contended that his new lawyer violated his right
to a speedy trial and asked that the trial
proceed on the date originally scheduled. He also
complained that the lawyer was not conducting the
case as Avery wanted and that the lawyer refused
to file several pre-trial motions which Avery
thought necessary. Citing Faretta v. California,
422 U.S. 806 (1975), Avery claimed that he had a
right to personally make his defense and that
this could be done by allowing him to participate
as co-counsel. The court denied the motion,
stating that although Avery had a right to self-
representation he did not have a right to
"hybrid" representation.
Irreconcilable differences between Avery and his
lawyer continued and four days before the
rescheduled trial date, the new lawyer filed a
verified motion on Avery’s behalf for defendant
to represent himself. At a hearing on the motion
the following day, the court was advised that
Avery still felt that his lawyer was not
zealously representing him and that Avery and his
lawyer had significant disputes over whether
certain pre-trial motions should be filed. Avery
stated that he believed his only hope of
acquittal would be for him to personally present
and argue his case to the jury. Despite having
come to the hearing with several self-prepared
pre-trial motions and motions in limine, Avery
claimed for the first time that he would need
more time to prepare for trial and requested a
continuance of the trial scheduled for the
following Monday.
The court conducted an extensive inquiry of
Avery to determine whether his decision to
represent himself was knowing and voluntary. It
questioned him about his educational background
and asked what he had done to prepare to
represent himself. The court also discussed with
Avery each of the charges Avery was facing, the
penalties for each of the charges, and the fact
that the charges could run consecutively. When
the court asked Avery if he understood all of
that and whether he still wanted to represent
himself, Avery stated that he did. The court then
asked Avery about his knowledge of the sentencing
guidelines, the Federal Rules of Evidence and the
Federal Rules of Criminal Procedure, explaining
that those rules would govern the trial.
The judge warned Avery that he did not believe
that Avery would be better off representing
himself, and advised Avery against self
representation. He asked Avery if, in light of
all of the difficulties he had explained to
Avery, Avery still wanted to represent himself.
Avery responded that he did. The court asked
Avery if his decision was entirely voluntary and
Avery responded that it was. The court then found
that, based upon Avery’s statements, Avery had
knowingly, willingly and voluntarily waived his
right to counsel under the constitution and that
it would allow Avery to represent himself. The
judge appointed Avery’s second lawyer as standby
counsel for trial.
During the hearing the court also addressed
Avery’s request to continue the trial date,
noting with disfavor that Avery raised the issue
on the eve of trial, with the court, the
government, the witnesses and the prospective
jurors being ready to try the case as scheduled.
Given the fact that Avery had already asked for
and received one continuance, the court denied
Avery’s motion to continue. But, in doing so,
asked Avery whether he still wanted to proceed
with self representation or whether he wanted to
keep his appointed lawyer. Avery responded that
he still wanted to represent himself.
The trial began the following Monday, with
Avery representing himself and the appointed
lawyer serving as standby counsel. Avery
participated fully, objecting to prospective
jurors, questioning most of the government’s
witnesses, and making opening and closing
statements. He even conferred with standby
counsel on occasion.
The jury convicted him on all counts. He was
sentenced to a term of 87 months imprisonment on
each of the seven counts, with the sentences to
be served concurrently, to be followed by a three
year term of supervised release. Avery was also
ordered to pay a $5,000.00 fine and a $700.00
special assessment.
II. DISCUSSION
Avery raises three issues on appeal, all of
which are reviewed for an abuse of discretion. In
considering a defendant’s waiver of his right to
counsel, "we look to see whether ’the record as
a whole demonstrates that the defendant knowingly
and intentionally waived his right to counsel.’"
United States v. Sandles, 23 F.3d 1121, 1126 (7th
Cir. 1994), citing United States v. Clark, 943
F.2d 775, 780 (7th Cir. 1991). As to the
defendant’s request for a continuance of his
trial, we will reverse the district court’s
denial only for an abuse of discretion and a
showing of actual prejudice. United States v.
Schwensow, 151 F.3d 650, 656 (7th Cir. 1998),
cert. den. 119 S.Ct. 626 (1998) (citation
omitted). A district court’s denial of a
defendant’s motion to compel the government to
disclose favorable evidence will be reversed only
upon a finding of an abuse of discretion. United
States v. Mitchell, 178 F.3d 904, 907 (7th Cir.
1999).
A. Avery’s Waiver Of His Sixth Amendment Right
To Counsel
In Faretta v. California, 422 U.S. 806 (1975),
the Supreme Court found that a criminal defendant
is absolutely entitled to waive his right to the
assistance of counsel and to proceed pro se when
he voluntarily and intelligently elects to do so.
Though he may ultimately conduct his own defense
to his detriment, his choice must be honored as
long as it is knowing and voluntary. Id. at 834.
"Although a defendant need not himself have the
skill and experience of a lawyer in order [to]
competently and intelligently choose self-
representation, he 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.’" Id. at 835, citing Adams v. United States
ex rel. McCann, 317 U.S. 269, 279 (1942). When
that is done, the defendant’s decision to proceed
pro se will not be disturbed.
To determine whether a defendant’s decision to
represent himself is knowingly and voluntarily
made, we consider (1) whether and to what extent
the district court conducted 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, and (4) the context of the
defendant’s decision to proceed pro se. Sandles,
23 F.3d at 1126; United States v. Bell, 901 F.2d
574, 577-79 (7th Cir. 1990). If, after making
these inquiries, we determine that the record as
a whole demonstrates that the defendant knowingly
and intentionally waived his right to counsel, we
will uphold the district court’s decision
allowing the defendant to proceed pro se. United
States v. Moya-Gomez, 860 F.2d 706, 733 (7th Cir.
1988).
Mr. Avery concedes that the District Court did
conduct a formal inquiry, on the record. However,
he claims that it was "perfunctory." To the
contrary, the record establishes that Judge
Hamilton conducted a thorough and detailed
inquiry of Avery. He asked about Avery’s
education and experience, eliciting that Avery
had attended, but not graduated from, college and
had taken courses in business and "business law."
He asked what Avery had done to prepare to
represent himself. Avery responded that he had
been reading the laws and cases relevant to the
charges against him and that he had prepared
several motions he wanted to file in his defense.
The judge then queried the defendant about his
knowledge of the criminal system, trial practice
and his knowledge of the Federal Rules of
Evidence and the Federal Rules of Criminal
Procedure, forcing Avery to admit that he had
never seen a trial conducted and that he was not
very familiar with either the Federal Rules of
Evidence or the Federal Rules of Criminal
Procedure. Yet, despite acknowledging these
insufficiencies, Avery announced his
determination to waive counsel and proceed pro
se.
Judge Hamilton did what he could to try to
convince Mr. Avery not to represent himself. He
told him the dangers of it, how much better he
would be with an experienced criminal defense
lawyer and that he would be on his own and that
the court could not assist him during trial. Mr.
Avery acknowledged all of this, stating that he
knew what he was "up against" and exactly where
he was "headed." He acknowledged that the rules
governing trial procedure were complicated and
that people who represent themselves at trial end
up with disastrous results "98 percent of the
time."
Reviewing the evidence before us, we do not
believe that the District Court abused its
discretion in ruling that Avery’s decision to
represent himself at trial was made knowingly,
intelligently and voluntarily. Indeed, the
defendant said many times that it was. And,
where, as here, the decision was made for
tactical reasons, we are readily inclined to
uphold it. See Bell, 901 F.2d at 579 (defendant’s
decision to represent himself based upon his
attorney’s unwillingness to present defendant’s
requested alibi defense upheld). The decision of
the District Court finding Avery’s waiver of
counsel knowing and voluntary is therefore
affirmed.
B. Avery’s Motion To Continue The Trial
On October 16, 1998, the last business day
before his trial, Avery requested a continuance
of the trial date. The District Court denied the
motion and the trial began the following Monday,
October 19th, as scheduled. Avery claims that
this denial was an abuse of discretion and
resulted in a violation of his due process right
to a fair trial.
To establish that the District Court abused its
discretion, Avery must show "that the denial of
the continuance was arbitrary, and that actual
prejudice resulted." United States v. Withers,
972 F.2d 837, 845 (7th Cir. 1992). Factors
relevant to our determination include (1) the
amount of time available for preparation, (2) the
likelihood of prejudice from denial, (3) the
defendant’s role in shortening the effective
preparation time, (4) the degree of complexity of
the case, (5) the availability of discovery from
the prosecution, (6) the likelihood the
continuance would satisfy the movant’s needs, and
(7) the inconvenience to the court. Schwensow,
151 F.3d at 656 (citations omitted).
Avery concentrates primarily on the first and
second of these factors. He argues that he had
precious little time to prepare, having gotten
the court’s approval to represent himself only
the Friday before the Monday trial date. Avery
claims he would have used the time granted for a
short continuance to complete his review of the
Federal Rules of Evidence and the Federal Rules
of Criminal Procedure, and the documents produced
by the prosecution to his prior attorneys, among
other things. We are not persuaded by any of
these arguments because the record reveals that
Avery had been preparing to represent himself
long before the Friday hearing. He discharged his
first lawyer because the lawyer prevented him
from assisting in his own defense and because the
lawyer failed to file several motions Avery had
prepared. Later, he filed a motion requesting to
be appointed "co-counsel" so that he could
dictate trial strategy. He even filed a pro se
motion to suppress several weeks before trial,
while he was still represented by counsel. And he
brought ten self-prepared motions with him to the
Faretta hearing. He was obviously very well
versed in his case and additional time would
hardly have been necessary.
We also point out that this was not a case of
great complexity. To make its case, the
government needed only to prove that Avery was a
convicted felon, that he had possessed a firearm
on the dates alleged in the indictment, that the
guns had been in interstate commerce, and that it
was Avery who filled out ATF Form 4473 denying he
had been convicted of a crime which carried a
possible sentence of more than one year. This
case had already been pending three months and
any evidence needed to negate those elements
could easily have been obtained by the October
19, 1998 trial date.
We remind Avery that the situation about which
he now complains was brought about entirely by
his own actions. His decision to dismiss his
lawyer on the eve of trial and proceed pro se was
a decision he made at his own peril. It was not
an abuse of discretion by the court to deny
Avery’s motion for additional time. The order of
the District Court denying Avery’s motion to
continue trial is affirmed.
C. Avery’s Motion for Discovery of Brady
Material
Avery lastly argues that the District Court
erred in denying his motion for discovery of
certain potentially exculpatory or impeachment
materials. He seeks documents and information
supporting the search warrant for the apartment
in New York where his gun was found. However, he
cites no facts to indicate that the materials are
even remotely favorable to him or his defense.
"[T]he defendant is not entitled to have his
request granted absent some indication that the
[discovery] contains impeachment material of the
kind requested." Mitchell, 178 F.3d at 909. We
therefore find that the District Court did not
abuse its discretion in denying Avery’s motion
and affirm the order entered by the District
Court in that regard.
III. CONCLUSION
Every criminal defendant has an absolute right
to defend himself if his decision to do so is
knowing, intelligent and voluntary. Judge
Hamilton was in the best position to determine
whether Avery’s waiver of the assistance of
counsel was made knowingly and voluntarily. His
observation, which is backed by a considerable
amount of objective evidence, is entitled to this
Court’s deference. As is his decision to deny
Avery’s motion to continue the trial. Throughout
the pendency of the case, Avery repeatedly
insisted on an undelayed trial, but would
undermine his own words with his actions. When he
did it for the last time, on the eve of trial,
the judge was within his discretion in ordering
that the trial proceed as scheduled since the
government, the witnesses and the potential
jurors were ready. For these reasons and the
reasons stated above, the judgment of the
District Court is affirmed.
AFFIRMED.