Case: 09-10003 Document: 00511030730 Page: 1 Date Filed: 02/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 19, 2010
No. 09-10003 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JAMES MICHAEL LONG
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
The government charged James Michael Long with four counts of wilfully
failing to file income tax returns, contrary to 26 U.S.C. § 7203. After a trial on
the merits, the jury found Long guilty of all four counts. Long, represented on
appeal by the Federal Public Defender’s Office, appeals on two grounds. First,
Long contends that the district court wrongfully denied him his right to
represent himself. See Faretta v. California, 95 S. Ct. 2525, 2532 (1975).
Second, he contends that the trial court erred in denying his pro se motion to
dismiss based on the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). We affirm the
district court for the reasons stated below.
Case: 09-10003 Document: 00511030730 Page: 2 Date Filed: 02/19/2010
No. 09-10003
BACKGROUND
On April 1, 2008, the United States Attorney filed in United States
District Court for the Northern District of Texas, Lubbock Division, a bill of
information charging Long, allegedly a resident of Plainview, Texas (which is
within that division), with four counts of violating 26 U.S.C. § 7203 by wilfully
failing to file his federal income tax returns for each of the respective calendar
years 2001 (count 1), 2002 (count 2), 2003 (count 3), and 2004 (count 4), although
he had gross income in excess of approximately $65,000 in 2001, $80,000 in
2002, and $188,000 in 2003 and 2004 each. On the same day, a summons issued
out of the Lubbock Division requiring Long to appear before the court on April
23, 2008 in reference to the information. On April 30, 2008, the government
filed in the Lubbock Division a motion to issue an arrest warrant for Long,
alleging that he had never appeared, and that the summons had not been served
on him although “[n]umerous attempts have been made to locate the defendant,
all to no avail.” The same day Magistrate Judge Koenig of the Lubbock Division
granted the motion and the arrest warrant was issued. On May 22, 2008,
apparently in the Fort Worth Division of the Northern District of Texas, Long
was arrested pursuant to the warrant and, after being brought before pretrial
services in Fort Worth, he was brought before Magistrate Judge Bleil of the Fort
Worth Division for his initial appearance on the April 1, 2008 bill of information.
Also present was Assistant Federal Public Defendant Fleury to represent Long.
At this hearing, Long, among other things, purported to fire Fleury, his
public defender attorney. Judge Bleil then orally announced that Fleury was
“appointed to represent Mr. Long, understanding, Mr. Fleury, that he doesn’t
wish to have your representation, I will consider this as stand-by
representation.” Judge Bleil further stated to Fleury “while you’re in Fort
Worth, you’re [sic] responsibilities as stand-by counsel are to assist Mr. Long if
he asks for your assistance in any way.” However, Judge Bleil’s May 22, 2008
2
Case: 09-10003 Document: 00511030730 Page: 3 Date Filed: 02/19/2010
No. 09-10003
written order appointing “the Federal Public Defender’s Office of this District”
as counsel for Long in the case makes no mention of being stand-by counsel or
the like.
At the May 22 hearing Judge Bleil also orally ordered that Long “be
detained pending further court proceedings finding that you are a risk of
nonappearance and without any information concerning you due to your lack of
cooperation with the probation officer” and that “you’re a danger to others.”1
Finally, Judge Bleil, at the May 22 hearing, orally directed Long be
“transported to the Lubbock Division of the Northern District of Texas.” Long
was transferred to Lubbock, and on May 23, 2008, Assistant Federal Public
Defender Kime-Goodwin entered her written appearance in the Lubbock
Division in this case as representing Long.
Long’s next appearance was on June 25, 2008, before Magistrate Judge
Koenig in the Lubbock Division. Again, Long purported to fire his public
defender attorney. In response, Judge Koenig set a Faretta hearing for August
25th, 2008 to determine whether Long knowingly and intelligently waived his
right to counsel. At the August 25 hearing, Long refused to cooperate with
Judge Koenig. For example, Long refused to answer any questions and
requested a side bar conference with the judge. When the judge told Long that
he needed to state his issues on the record, or talk to a pretrial services officer
to determine whether he could be released on bond or his own recognizance or
could retain counsel or could proceed pro se, Long refused and requested to
postpone the hearing. The judge postponed the Faretta hearing for two days.
At the August 27 hearing, Long again refused to cooperate. Judge Koenig once
1
Judge Bleil’s May 22, 2008 written order that Long be “detained pending further court
proceedings” recites, inter alia, that “[t]he defendant [Long] refused to talk with probation
officers about his background, employment, address or any pertinent information. . . . The
defendant also was bizarre in his conduct, seemed irrational, and expressed a lack of
recognition of any authority over him”
3
Case: 09-10003 Document: 00511030730 Page: 4 Date Filed: 02/19/2010
No. 09-10003
more postponed the hearing to September 3. Again, Long refused to cooperate.
At the September 3 hearing Judge Koenig had the bill of information read to
Long, and ordered that a not guilty plea be entered for him.
Judge Koenig referred Long to District Judge Cummings for the Faretta
hearing. At a pretrial hearing on October 6, 2008, before trial commenced later
that day, Long appeared with Assistant Federal Public Defendant Kime-
Goodwin, who informed the court that she had requested the pretrial hearing
because Long had said “he fired our office” and “essentially said that he wished
to represent himself” and that she believed that accordingly he should “be
advised of Faretta warnings by this court.” Thereafter, at the request of Long,
attorney Kime-Goodwin moved for a continuance of the trial which Judge
Cummings denied. Judge Cummings accordingly then asked the defendant
whether he wished to represent himself. Long responded, “No, sir.” Long was
thereafter tried and convicted on October 6, 2008. At sentencing on December
30, 2008, Long’s attorney Kime-Goodwin informed the court that Long wished
to fire her. Long attempted to speak up, but the district judge told him to wait
his turn. When the judge allowed Long to speak, Long stated only, “For the
record, Your Honor, your offer of contract is accepted for value and returned with
consideration for discharge, settlement, and closure.” Judge Cummings
sentenced Long to thirty-seven months in prison (consecutive sentences of twelve
months on each of counts 1, 2 and 3 and one month on count 4) and concurrent
one year terms of supervised release on each count. No fine was imposed;
restitution to the United States of $93,484.69 was ordered.
ANALYSIS
I. Right to Self-Representation
A defendant has a right to represent himself at trial. Faretta, 95 S. Ct. at
2532. An impermissible denial of self-representation cannot be harmless.
United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008). The defendant must
4
Case: 09-10003 Document: 00511030730 Page: 5 Date Filed: 02/19/2010
No. 09-10003
knowingly and intelligently forego his right to counsel, and must clearly and
unequivocally request to proceed pro se. Id. If the right to counsel is to be
waived, the trial court must conduct a Faretta hearing, cautioning the defendant
about the dangers of self-representation and establishing, on the record, that the
defendant makes a knowing and voluntary choice. Id. Nevertheless, the
defendant may waive his right to self-representation through subsequent
conduct indicating an abandonment of the request. Id. There is no
constitutional right to hybrid representations whereby the defendant and his
attorney act as co-counsel. Id.
A. Long Did Not Clearly and Unequivocally Request to Proceed Pro Se
United States v. Cano gives an example of a clear and unequivocal waiver
of the right to counsel. In Cano, the defendant asked the court to dismiss his
counsel and allow him to represent himself, stating that he wanted to “invoke
his Constitutional Right to Self-Representation as to the matters before the
court.” Id. The court found that request to clearly and unequivocally assert the
right to self-representation. Id. Like Cano, Long indicated to Magistrate Judge
Koenig that he is “the attorney in fact” when the judge asked him at the June 25,
2008 hearing who he wanted to replace the public defender. At the June 25
hearing, Long filed a document purporting to fire the public defender and
granting himself the power of attorney. Moreover, the magistrate judge
understood that Long sought to represent himself because she ordered a Faretta
hearing in response to Long’s statements. Compounded on this are Long’s
several statements that if “any[one]” thought they represented Long, “they were
fired.” Unlike Cano, however, Long never clearly or expressly asserted either his
right to represent himself or that he wanted to proceed pro se.
Many cases suggest that something more than just firing one’s attorney
is required before one clearly and unequivocally requests to proceed pro se. E.g.,
Moreno v. Estelle, 717 F.2d 171, 174–75 (5th Cir. 1983). “[T]he right to counsel
5
Case: 09-10003 Document: 00511030730 Page: 6 Date Filed: 02/19/2010
No. 09-10003
is in force until waived, [and] the right to self-representation does not attach
until asserted.” Id. at 174 (quoting Brown v. Wainwright, 665 F.2d 607, 610 (5th
Cir. 1982) (en banc)) (emphasis in original). Moreno found that the defendant
did not waive his right to counsel because he told the court he wanted to fire
counsel without explicitly informing the court that he wished to proceed pro se.
Id. at 174–75. Next, in Burton v. Collins, 937 F.2d 131, 133–34 (5th Cir. 1991),
this court found no clear and unequivocal wavier where a defendant informed
the judge he wanted to fire his attorney and asked, “May I represent myself?”
Burton, 937 F.2d at 132. The court interpreted Burton’s question as an inquiry
into the possible alternatives available. Id. at 134.
Finally, United States v. Ibarra is an unpublished opinion of this court the
facts of which are somewhat similar to those in the instant case. No. 05-50934,
2007 WL 807038, at *2 (5th Cir. 2007). There, Ibarra’s attorney told the trial
court Ibarra “may prefer to represent himself.” Id. at *1. After Ibarra stated the
that he would not cooperate even if appointed another attorney, the following
exchange took place:
“[Defense Counsel]: Would the Court entertain a motion to allow
Mr. Ibarra to proceed pro se?
THE COURT: No. Don't give him any ideas.
[Defense Counsel]: Well, he already has the idea, Your Honor. I wish
I could take credit for giving him-
THE COURT: He's already convicted himself [in a letter to the
court], quite frankly. Anything he says is going to be-is not going to
make any difference. I may find as a matter of law he's not a citizen.
Period....
THE COURT: June the 20th. You will represent him. And don't give
him any ideas about pro se. It's bad enough having a fool for a
client.
IBARRA: Sir,-Your Honor can I say a word? . . . I am 30 years old
and I don't want nobody to represent me. So I want you just to give
6
Case: 09-10003 Document: 00511030730 Page: 7 Date Filed: 02/19/2010
No. 09-10003
your final decision or decisions because I don't want to waste my
time.
THE COURT: What do you mean you want a decision? Are you
pleading guilty?
IBARRA: I don't want him. I don't need no attorneys. I already tell
you that[.]”
Id. at *2 (emphasis in original). Citing Burton, the panel found that there were
competing reasonable interpretations attributable to the defendant’s inquiry into
whether he could represent himself. Id. at *3 (citing Burton, 937 F.2d at 134).
The panel noted that the defendant’s statements appeared to have expressed his
complaint of his detention and trial rather than a request to the right of self-
representation. Id. at *4. Because Ibarra “failed to support counsel’s two
statements on the issue of self-representation,” the panel also found that his
counsel’s statements did not amount to a clear and unequivocal request for self-
representation. Id.
Here, Long seems to have made a request to fire his appointed attorney,
but not a clear and unequivocal request to represent himself. In his initial
appearance, Long purported to fire anyone that thought they represented him.
At the end of that hearing, after the magistrate judge appointed a public
defender, Long said “[t]his gentleman is hereby fired.” The next hearing took
place on June 25, 2008. At this hearing, Long again fired the public defender.
Long told the judge he found a replacement. While the record is unclear, it
seems that at this point, Long gave the judge some form of visual cue that he
himself planned on replacing the public defender. Multiple times Long stated
that “[he is] the attorney in fact” that he wanted to replace the public defender.
Because of this, the magistrate judge believed the situation warranted a Faretta
hearing.
As a result of Long’s attempts to fire his attorney, the magistrate judge
made multiple attempts to have a Faretta hearing. Long thwarted each attempt
7
Case: 09-10003 Document: 00511030730 Page: 8 Date Filed: 02/19/2010
No. 09-10003
until the day of trial. Long and the federal public defender next appeared before
Judge Cummings on October 6, 2008. The first issue the federal public defender
put before the court was the Faretta hearing and Long’s request to represent
himself. In response, Judge Cummings addressed Long:
“THE COURT: All right. Mr. Long, do you wish to represent yourself
in this case?
THE DEFENDANT: Excuse me, Your Honor. No, sir.
THE COURT: All right. Thank you very much. You may be seated.”
Given his uncooperative and non-responsive nature, we believe that Long’s
prior comments are unclear and equivocal. Like Ibarra, Long’s earlier comments
may more aptly be characterized as a general rebellion against the system trying
him, when the comments are taken in the full context of the record. See Ibarra,
2007 WL 807038, at *4. Long made multiple references to how he does not
recognize the trial court. Beyond just his own attorney, Long wished to fire the
government, the court security officers, the marshals, and the judge from
representing him. In fact, Long repeatedly asserted throughout the proceedings
that the Republic of Texas never properly entered the union, and therefore, the
United States Federal Courts had no power over him. Before trial, Long wanted
to fire his attorney. On the day of trial, he expressly denied to the district court
that he wanted to represent himself. Right before sentencing, he once again
wished to fire his attorney. As Burton noted, “[w]here a fundamental
constitutional right, such as the right to counsel, is concerned, courts indulge
every reasonable presumption against waiver. Burton, 937 F.2d at 133; see also
Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (“The right of
self-representation entails a waiver of the right to counsel, since a defendant
obviously cannot enjoy both rights at trial.”). Here, Long did not clearly and
unequivocally both waive his right to counsel and assert his right to self-
representation. See id.
8
Case: 09-10003 Document: 00511030730 Page: 9 Date Filed: 02/19/2010
No. 09-10003
B. Long Waived His Right to Self-Representation
Even if Long had clearly and unequivocally asserted his right to self-
representation, that right may be waived by his actions. Faretta recognized that
the trial judge may terminate self-representation by a defendant who
deliberately engages in serious and obstructionist misconduct. Faretta, 95 S. Ct.
at 2541 & n.46. After Faretta, at least two circuits have held that obstructionist
behavior may waive the right to self-representation. E.g., United States v.
Brock, 159 F.3d 1077, 1079 (7th Cir. 1998).2 For example, the Seventh Circuit
held that the disruptive defendant may lose his right to pro se status in Brock.
159 F.3d at 1079. Like Long, Mr. Brock filed motions asserting that neither his
attorney nor any other attorney, was authorized to act on his behalf. Id. at 1078.
The district court attempted to conduct a Faretta hearing. Id. Brock repeatedly
demanded a “Bill of Particulars” and challenged the district court’s authority.
Id. Brock refused to answer the court’s questions or cooperate in any way. Id.
The trial judge appointed Brock stand-by counsel and directed the magistrate
judge to inform Brock of the pitfalls of self-representation. Id. at 1079. Before
the magistrate judge, Brock repeated his demands and refused to answer any
questions. Id. After holding Brock in contempt multiple times, the trial court
decided to revoke his pro se status. Id.
Not unlike Brock, Long’s conduct in the instant case suggested disruptive
and obstructionist behavior. After the second time the defendant attempted to
fire the public defender, Magistrate Judge Koenig entered an order for a Faretta
hearing for August 25th, 2008. The Faretta hearing began as scheduled, but
2
See also United States v. Myers, 503 F.3d 676, 681 (8th Cir. 2007) (affirming the
conviction of a defendant who made numerous frivolous and repetitive filings, used files
provided by the government in discovery to clog jail toilets, and threw feces into the jail’s mail
slot); Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1145 (11th Cir. 2005) (“Diaz sought to
frustrate the completion of his trial by repeatedly changing his mind regarding
self-representation at the guilt phase of the trial.”); United States v. Keiser, 319 F. App’x 457,
458–59 (9th Cir. 2008).
9
Case: 09-10003 Document: 00511030730 Page: 10 Date Filed: 02/19/2010
No. 09-10003
Long refused to answer the judge’s questions, instead merely replying with the
same nonsensical statement “your offer of contract is accepted for value and
returned with consideration for discharge, settlement and closure.” After the
court was understandably frustrated, Long asked for a sidebar conference with
the judge. The judge refused and required all communication be made on the
record, but offered to let Long speak to an individual from pre-trial services.
Long declined to do so, but asked if the court could resume the hearing in two
days. The court explained to him exactly what the hearing would cover when
they reconvened.
As scheduled, the court reconvened two days later on August 27, 2008.
Long once again stated that he wanted to fire his counsel. In response, the
magistrate judge understood that, but stated Long would need to cooperate and
allow the pre-trial services officer to question him so the court may get the
information it needed for the Faretta hearing. Instead of cooperating, Long
made the identical above quoted nonsensical statement about accepting an offer
of contract from the judge. After repeatedly warning Long not to “carry on with
these ridiculous statements that carry no meaning in this court or any court of
law,” the magistrate judge ended the hearing.
The magistrate judge held the next hearing on September 3, 2008. Again,
Long began this hearing by stating that he would like to fire the public defender.
From that point onwards, Long responded to every question Judge Koenig asked
by simply repeating the above quoted nonsensical statement about accepting an
offer of contract from the judge. Judge Koenig decided to release Long on
personal recognizance, and let the district court judge conduct a Faretta hearing.
Each time a magistrate judge had attempted to conduct a Faretta hearing, Long
was extremely uncooperative. Long’s actions led to the court pushing back the
hearings until October 6. On October 6, Long denied wanting to represent
10
Case: 09-10003 Document: 00511030730 Page: 11 Date Filed: 02/19/2010
No. 09-10003
himself. Like Brock, these facts tend to suggest that Long’s behavior of itself
may well have resulted in the waiver of his right to self-representation.
Long also argues, alternatively, that if he waived his right to self-
representation, he reasserted it at the sentencing stage. Courts have held that
the pro se request may be untimely and, therefore, waived. E.g., Wood v.
Quarterman, 491 F.3d 196, 202 (5th Cir. 2007) (“Wood did not move to proceed
pro se until after the jury had already returned a guilty verdict against him,
immediately before the sentencing phase of his trial, and the trial court therefore
had the discretion to deny the motion.”); United States v. Edelmann, 458 F.3d
791, 808–09 (8th Cir. 2006) (request made four days before trial); Howze v. Roe,
92 F. App’x 515, 516 (9th Cir. 2004) (unpublished) (request made two days before
trial). Long relies on United States v. Cano, in which this court remanded for
re-sentencing when the district court failed conduct a Faretta hearing after the
defendant requested to represent himself eighteen days before sentencing.
Cano, 519 F.3d at 515, 517.
Unlike Cano, Long requested to proceed pro se the day of the sentencing
hearing. Given Long’s previous disruptive and uncooperative conduct, the trial
court may have seen this as another delay tactic. Throughout trial, the district
court was concerned with Long’s “Republic of Texas ‘psychobabble,’” which,
according to the district court, was intended to intimidate the court and frustrate
the administration of justice. Like Wood, we find that Long’s assertion at
sentencing was untimely.
Long also argues, alternatively, that he represented himself all along, and
counsel was appointed from the beginning by Judge Bleil in Fort Worth as
stand-by counsel without any Faretta hearing.3 Long argues that while the trial
3
Long argues that this court should give weight to the Magistrate Judge Bleil’s oral
pronouncement that the public defender was stand-by counsel, not the written order
appointing the public defender as counsel. Like the oral pronouncement, the minute entry for
11
Case: 09-10003 Document: 00511030730 Page: 12 Date Filed: 02/19/2010
No. 09-10003
court may not have conducted a formal Faretta hearing, he was made aware of
the dangers and disadvantages of self-representation. After Magistrate Judge
Koenig set a Faretta hearing, Long requested to delay it for two days. When
granting this request, the magistrate judge informed Long of what could be
expected at the Faretta hearing. Long characterizes this preview as being fully
briefed on the dangers of self-representation. However, Faretta clearly requires
more than the defendant received. Assuming a defendant clearly and
unequivocally requests to represent himself, the trial court still must make a
finding that the defendant knowingly and intelligently waived his right to
counsel and asserts his right to self-representation. United States v. Cano, 519
F.3d 512, 516 (5th Cir. 2008).
But even assuming Long was briefed properly under Faretta and had been
representing himself, Long waived his right to self-representation.4 Long
expressly told the trial judge before trial that he did not want to represent
himself. The public defender acted as counsel for the remainder of the trial. This
court’s opinion in Lafevre v. Cain is on point:
the initial appearance reads, “Order appointing federal public defender as standby counsel
because Deft. refusal of Representation.” However, the formal order that was also entered
that day appoints the public defender as Long’s counsel without mention of “stand-by” or other
qualification. Even if we were to give weight to the oral pronouncement, the magistrate judge
clarified orally that the public defender was stand-by counsel, “[w]hile [he’s] in Fort Worth.”
(emphasis supplied). And, on May 23, 2008, Assistant Federal Public Defender Kime-Goodwin
entered her appearance in the Lubbock Division as counsel for Long without any indication
of stand-by or other limited status. Moreover, on September 5, 2008, Judge Cummings re-
appointed the federal public defender as counsel. This was almost a month before Long filed
his motion to dismiss based on the Speedy Trial Act.
4
Long centers his argument that he did not waive his right to self-representation on
a line from Cano: “In United States v. Cano, this Court indicated that it would ‘indulge every
reasonable presumption against waiver’ of the right to self-representation.” Brief of Defendant-
Appellant at 31 (quoting Cano, 519 F.3d at 517) (emphasis supplied). Cano actually reads:
“Where a fundamental constitutional right, such as the right to counsel, is concerned, courts
indulge every reasonable presumption against waiver.” Cano, 519 F.3d at 517 (emphasis
supplied).
12
Case: 09-10003 Document: 00511030730 Page: 13 Date Filed: 02/19/2010
No. 09-10003
“[A] defendant can waive his Faretta rights, either by expressly
requesting standby counsel's participation on a matter or by
acquiescing in certain types of participation by counsel, even if the
defendant insists that he is not waiving his Faretta
rights. . . . [O]nce a pro se defendant invites or agrees to any
substantial participation by counsel, subsequent appearances by
counsel must be presumed to be with the defendant's acquiescence,
at least until the defendant expressly and unambiguously renews
his request that standby counsel be silenced. . . . [S]tandby
counsel's participation [must] be ‘over the defendant's objection’ in
order to erode the defendant's Faretta rights.”
Lefevre v. Cain, 586 F.3d 349, 355–56 (5th Cir. 2009) (internal citations omitted).
In Lefevre, this court found waiver after the defendant acquiesced to stand-by
counsel participation, but never objected or provided a reason for his failure to
object to that help. Id. at 356, 357.
We believe that Long’s obstructionist behavior, coupled with Long, just
before trial began, having told the district court that he did not wish to represent
himself, warrant similar reasoning and a similar waiver result here.
II. Speedy Trial Act
Long also appeals the district court’s failure to address this October 3,
2008 pro se motion based on the Speedy Trial Act. At the time, Long was
represented by counsel, so the trial court properly struck his pro se motion. See
United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Consequently,
Long’s failure to properly “move for dismissal prior to trial or entry of a plea of
guilty or nolo contendere shall constitute a waiver of the right to dismissal”
under the Speedy Trial Act. 18 U.S.C. § 3162(a)(2).
CONCLUSION
We affirm Long’s conviction and sentence. First, Long was not denied his
constitutional right to represent himself because he did not timely, clearly, and
unequivocally assert it. Any attempts to assert that right were waived by his
own obstructionist behavior combined with his negative answer to the district
13
Case: 09-10003 Document: 00511030730 Page: 14 Date Filed: 02/19/2010
No. 09-10003
court’s inquiry whether he desired to represent himself. Long waived his rights
under the Speedy Trial Act because he failed to properly put the issue before the
trial court.
AFFIRMED
14