FILED
NOT FOR PUBLICATION DEC 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10537
Plaintiff - Appellee, D.C. No. 2:09-cr-00523-KJD-LRL-1
v.
MEMORANDUM *
DAVID KLUCKA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted November 30, 2011
San Francisco, California
Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**
David Klucka appeals his misdemeanor convictions. We affirm.
The Sixth Amendment allows the defendant to make significant tactical
decisions regarding his own case instead of being subjected against his will to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for Northern District of Ohio, sitting by designation.
strategy of counsel. Faretta v. California, 422 U.S. 806 (1975); McKaskle v.
Wiggins, 465 U.S. 168, 178 (1984). A defendant must have the opportunity to
“control the organization and content of his own defense, to make 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.” Id. at 174. In this case,
Klucka maintained control over his defense and participated fully in the trial. He
argued points of law, made statements to the court and the jury, examined
witnesses, and so forth.
Klucka’s complaint is limited to one sidebar conference from which, he
contends, he was excluded. But that conference concerned a subject as to which
standby counsel had previously spoken, at Klucka’s request. The comments added
by Klucka on that previous occasion did not take a position different from that
standby counsel had taken, so there was no reason for the district court to infer that
Klucka had rescinded permission for standby counsel to speak. See id. at 182 (“a
pro se defendant’s solicitation of or acquiescence in certain types of participation
by counsel substantially undermines later protestations that counsel interfered
unacceptably”). At the time of the sidebar conference, Klucka did not indicate a
desire to participate and did not object to the discussion proceeding without him.
Under the circumstances, Klucka’s failure to participate in the sidebar conference
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appears more the result of his failure to request an opportunity to participate than
any exclusion by the district court.
There was, moreover, no prejudice suffered by Klucka from his failure to
participate in that one sidebar conference. Klucka does not complain about the
position taken by standby counsel at that conference and does not contend that the
result of the conference would have been any different had he been allowed to
participate directly. Instead, he suggests only that his role may have diminished in
the eyes of the jury and that the jury might not have perceived him as being in
control of his own defense. In light of Klucka’s personal participation in virtually
every other aspect of the trial, the claim that the jury would have perceived his role
as limited is unpersuasive.
AFFIRMED.
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