United States v. Baker

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 5/21/96
FOR THE TENTH CIRCUIT
________________________

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-1423
)
LEROY WALTER BAKER, )
)
Defendant-Appellant. )

__________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 95-CR-79-1)
_________________________

Henry L. Solano, United States Attorney, and William R. Lucero, Assistant United States Attorney,
Denver, Colorado, on the brief for Plaintiff-Appellee.

Mitchell Baker, Denver, Colorado, on the briefs for Defendant-Appellant.
_________________________

Before BRORBY, EBEL and HENRY, Circuit Judges.
_________________________

BRORBY, Circuit Judge.
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After examining the briefs and appellate record, this panel has determined unanimously that

oral argument would not materially assist the determination of this appeal. See Fed. R. App. P.

34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
 A jury found Leroy Walter Baker guilty of two counts of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of making a false statement in

acquisition of a firearm in violation of 18 U.S.C. 922(a)(6). We do not address all of the issues Mr.

Baker raises on appeal because we find he was denied his right to self-representation and therefore

we reverse his conviction and remand for a new trial.

A criminal defendant has a constitutional and a statutory right to self-representation. Faretta

v. California, 422 U.S. 806, 834-36 (1975); 28 U.S.C. §1654. The Supreme Court has held when

the right of self-representation is exercised it "usually increases the likelihood of a trial outcome

unfavorable to the defendant, its denial is not amenable to 'harmless error' analysis. The right is either

respected or denied; its deprivation cannot be harmless." McKaskle v. Wiggins, 465 U.S. 168, 177

n.8 (1984). The defendant must meet several requirements in order to invoke this right. First, the

defendant must "clearly and unequivocally" assert his intention to represent himself. United States

v. Reddeck, 22 F.3d 1504, 1510 (10th Cir. 1994). Second, this assertion must be timely. United

States v. Nunez, 877 F.2d 1475, 1478 (10th Cir.), cert. denied, 493 U.S. 981 (1989). Finally, there

must "be a showing that he 'knowingly and intelligently' relinquishes the benefits of representation

by counsel." United States v. McKinley, 58 F.3d 1475, 1481 (10th Cir. 1995) (quoting Faretta, 422

U.S. at 835). The key question is whether the defendant is competent to waive his or her right to

counsel, not whether the defendant possesses legal knowledge or is otherwise competent to represent

him or herself. Id.

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 The government claims Mr. Baker "did not make a clear and unequivocal request to appear

pro se; on the contrary, his requests for self-representation were confusing." We disagree. Although

at times Mr. Baker may have expressed his thoughts in a somewhat muddled manner, his desire to

represent himself was consistently expressed and discussed by himself, his attorneys, the magistrate

judge and the district court judge. Our perusal of the record indicates that Mr. Baker brought the

matter up nearly every time he appeared before the court. On April 11, 1995, in his initial

appearance before the magistrate judge, Mr. Baker stated: "I would like to have a -- a -- I would like

to be pro se with a counsel. In other words, I do want a counsel, but I do not want him to have abso'

-- absolute control, because I am -- I do know the law. You know, I am not ignorant of the law. "

The magistrate judge told Mr. Baker "You do have a right to have an attorney. If you are choosing

to represent yourself and want advisory counsel, we can take that up at an appropriate time." Mr.

Baker responded "Now, on that I would like to have, you know, like, in other words, a counsel to

advise me." Subsequently, the magistrate judge appointed attorney Edward Harris to represent Mr.

Baker. On May 30, 1995, in Mr. Baker's first appearance before the district court, the following

exchange occurred:

Mr. Harris: .... We have a preliminary matter which I'd like to address before
any of [the] written motions, if I might.

The Court: Go ahead.

Mr. Harris: And that is I've discussed with Mr. Baker the situation
concerning advisory counsel vs. counsel vs. pro se, and he indicates to me that he
wishes me to withdraw and he wishes to represent himself.

The Court: His motion is denied. Let's proceed. I've had too many cases in
this court where people have tried to represent themselves and they just have not had
their day in court. He can certainly confer with you and be a partner with you in
making decisions, but my experience is very strongly that those who try to represent
themselves do not do a good job and they really don't have their constitutional rights

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 protected and their day in court. So that motion will be denied.

Later in that same hearing, Mr. Harris again addressed the court regarding Mr. Baker's wish

to represent himself by noting:

Mr. Harris: .... He has some pretty strong ideas as to how he wants this case
tried. My hands are bound for a variety of reasons as to how I might try the case, and
he is a -- I have in dealing with him found Mr. Baker to be intelligent albeit not
trained in the law. But I'm not -- I guess what I'm saying is I'm not sure I can do more
for him at this point than he can do for himself.

I think frankly the result is likely to be the same, is likely to a be a conviction
from a jury of 12; and I think given that, he ought to take a shot at it himself, if he
feels strongly about it, as he has a right to do, to represent himself pro se. And I
know he feels very strongly about it.

If nothing else, I would ask simply that your Honor hear him on that subject
limited only to that subject and not discussing any aspects of the case itself, because
I know he feels extremely strongly that he wants to defend this case a certain way and
by himself.

The Court: There are just so many cases both in this court and before other
judges where other defendants have felt that strongly, and in some cases where they
have tried the case themselves and had advisory counsel and then later appealed on
the grounds that they did not have a fair trial and the judge should have acted to make
sure they had counsel rather than letting them make a mess of things pro se.

There are so many statutes and so many rules that have to be known. There
is the rules of evidence and the rules of criminal procedure, and we follow those rules
specifically.

And if one is not trained in the law, it's like, you know, taking out your own
appendix: You just don't know, you just don't understand what's going on.

At this point the district court listened to Mr. Baker's opinions, which soon disintegrated into

a discussion regarding the different branches of the federal government, before the district court

reiterated its denial of Mr. Harris's motion to withdraw as counsel and admonished Mr. Baker to "try

to work out" his relationship with Mr. Harris.

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 On June 15, 1995, Mr. Baker appeared in front of the magistrate judge for a hearing regarding

Mr. Harris's request to withdraw as Mr. Baker's counsel:

[Magistrate]: [The district court judge] wanted me to hold a hearing, wanted
me to ascertain what the present situation was vis-a-vis the defendant's view of, and
counsel's view, about whether or not the attorney-client relationship should continue.
I know it's been denied at one point in time, but she said that I had complete liberty
to review the thing and to review everything and to determine where things were at.

....

[Mr. Baker]: At that first hearing, I had asked for a -- a advisory counsel.
You know, like see, in other words, that I was educated back east in a school, Notre
Dame. I am not a -- I'm of a -- I know the law basically and I know how to -- I'm of
-- of a stable mind, you know, and that I have defended cases on -- as pro se before.
And that's why I was saying that if because of the lack of me not having access to my
records that if I'm to bear the sins of this case before you, with all due respect, you
know, then I feel that, you know, the issues -- that I should be aware of the issues in
my case.

And so, therefore, like I'd asked for that -- for an assistant, as far as -- like in
Colorado law, as far as how Colorado applies the law, I may have a defective [sic]
in regards to a how you apply it. But as far as basic law and research, I do know law
and research, and I'd like to go through this pro se.

At the hearing, the magistrate judge questioned Mr. Harris and Mr. Baker about the status

of their relationship, Mr. Baker's understanding that appointing new counsel would most likely

necessitate his waiving his right to a speedy trial, and Mr. Mitchell Baker's willingness to serve as

advisory counsel. At the end of the hearing, the magistrate judge stated that he would immediately

contact Mitchell Baker, an attorney Mr. Baker had selected from the list of attorney's available for

appointment, to see if he would be willing to undertake the case as advisory counsel and dismissed

Mr. Harris from the case.

Later that day, the prosecuting attorney and Mr. Baker, appearing pro se, held a hearing

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before the district court regarding the morning's hearing before the magistrate judge. At this hearing

the district court established that Mr. Harris had been excused from the case and that the magistrate

judge was attempting to contact as a replacement Attorney Baker. At this point, Defendant Baker

again attempted to express his desire to represent himself, to which the district court responded:

But you've not been trained in the law. That's the problem, and that was what
concerned me before and it's what concerns me now.

If you're going to have a day in court, you need an attorney. And I'd like you
to see if you can work with [the magistrate judge] to see if we can get an attorney for
you. If you absolutely insist that you want to represent yourself -- and I strongly
advise you not to -- then at least you should have an advisory attorney.

Attorney Baker agreed to serve as counsel for Defendant Baker. On July 17, 1995, the first

day of trial, Attorney Baker made his first appearance before the district court and noted:

Mr. Baker: Your Honor, there is another matter, and I apologize for the
delay; but I think it needs to be brought up sooner rather than later.

Mr. Baker and I were both under the impression that I was advisory counsel
until this past Wednesday.

The Court: And I was not, because I asked the Magistrate Judge to appoint
Counsel.

Mr. Baker: I understand that. And what had happened, your Honor, is I
believe the magistrate had spoken with Mr. Baker and then had a rather lengthy
conversation with me which dealt with the issue of being advisory counsel.
Consequently, I approached this case as advisory counsel up until I found out from
Mr. Hein last week that I was trial counsel. I've discussed that with Mr. Baker and
I know Mr. Baker wants to indicate to the Court what his feelings are regarding
representing himself.

The Court: Do you think we can do that tomorrow, also? I'd like to try to ask
a few more questions of the jury and let them go.

I have indicated through my law clerk -- and I'll tell Mr. Baker now -- that I
will give him every opportunity to confer with you, make suggestions to you, give
you -- you know, have him come up to the bench; but it's my honest and sincere
experience that he's much better off with counsel than just trying to do this himself

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 with advisory counsel.

The next day, Attorney Baker again discussed the misunderstanding that had occurred

regarding his appointment as advisory or trial counsel, which concluded with the following

exchange:

The Court: It's totally hearsay -- I haven't talked to [the magistrate judge] --
but apparently he did tell Mr. Hein that he did appoint you as counsel because that
is what the Court wanted okay. Is there any problem on that score?

[Attorney] Baker: Not for me. I know the problem is for Mr. Baker, who
continues to wish to represent himself, your Honor. I'll do whatever the Court has
ordered me to do, and I don't have any problem with that whatsoever.

The Court: You know, there has been too many times when I've had a
defendant want to represent himself totally mess up the trial and come in later with
motions that he was not properly represented; and I've seen that happen in state court,
too.

[Attorney] Baker: I can assure the Court that I'm not chomping at the bit to
be advisory counsel, but I was basically trying to do what I was told.

The Court: Thank you. Anything you want to say about the two motions?

In light of the above record, the government's position that Mr. Baker's desire to represent

himself was not "clear and unequivocal" is disingenuous. From his initial appearance before the

court to the first day of his trial, Mr. Baker consistently stated his desire to represent himself. While

Mr. Baker did request an advisory counsel, this by no means waived or lessened his right to represent

himself. See United States v. Padilla, 819 F.2d 952, 959 (10th Cir. 1987) ("once a defendant has

declared his desire to proceed pro se, appointment of standby counsel is a preferred, though not

mandatory, practice"). Furthermore, there have been no allegations nor evidence that Mr. Baker was

incompetent to knowingly and intelligently waive his right to counsel.

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 The district court's reasons for disallowing Mr. Baker to represent himself are contrary to

precedent. The district court focused on Mr. Baker's lack of legal knowledge and its concern that

without an attorney he would not have his day in court. We have held "that a court determination

that an accused lacks expertise or professional capabilities cannot justify denying the right of self-

representation." United States v. Bennett, 539 F.2d 45, 51 (10th Cir.), cert. denied, 429 U.S. 925

(1976). Any prejudice Mr. Baker may have suffered by foregoing his right to legal representation

was a risk he knowingly wished to incur. It is also important to note that the district court's concern

of Mr. Baker being successful in an appeal on the ground of ineffective assistance of counsel was

unfounded as "a defendant who exercises his right to appear pro se cannot thereafter complain that

the quality of his own defense amounted to a denial of effective assistance of counsel." Wiggins, 465

U.S. at 177 (internal quotations omitted).

In this case, Mr. Baker clearly and unequivocally requested the right to represent himself in

a timely manner. It is evident from the record that Mr. Baker understood his rights and wished to

knowingly waive them. There is no indication that he was incompetent to do so. We are

sympathetic to the difficulties district courts face in cases involving pro se litigants; however, in a

situation such as this, we are compelled to reverse Mr. Baker's conviction and remand for a trial free

from

constitutional error. See McKinley, 58 F.3d at 1483.

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REVERSED AND REMANDED.

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