UNITED STATES OF AMERICA, Plaintiff-Appellee,
vs.
RICHARD MOHAWK, Defendant-Appellant.
No. 83-5207
United States Court Of Appeals For
The Ninth Circuit
20 F.3d 1480, 94 Cal. Daily Op. Service
2576, 94 Daily Journal DAR 4918, 1994 U.S. App. Decision
April 13, 1994, Filed
Appeal from the United States District
Court for the Central District of California. D.C. No. CR-83-132-TJH. Terry
J. Hatter, Jr., District Judge, Presiding.
Phillip A. Trevino, Los Angeles, California, for the defendant-appellant.
Kendra S. McNally, Assistant United States Attorney, Los Angeles, California,
for the plaintiff-appellee.
Arthur L. Alarcon, William A. Norris, and Diarmuid F. O'Scannlain,
Circuit Judges. Opinion by Judge O'Scannlain.
[F.3d 1482] OPINION
O'SCANNLAIN, Circuit Judge:
In 1983, Richard Mohawk was convicted
of armed bank robbery and sentenced to a term of twenty years in prison.
He filed a timely notice of appeal from his conviction. Today, after more
than ten years, we decide that appeal in his favor. In the end, we are
called upon to determine whether, because of this extraordinary delay,
it would violate due process to permit the government to subject Mohawk
to a second trial.
I
On January 28, 1983, three people robbed
a Security Pacific National Bank in Los Angeles, California.1
The government sought to prove that appellant Mohawk was among them. One
of the robbers wore a hooded jacket and carried a sawed-off shotgun, which
was fired during the course of the robbery, wounding a customer. Before
the grand jury, the officer who arrested Mohawk testified that, at the
time of the arrest, Mohawk was wearing a hooded jacket like the one identified
by witnesses to the robbery. [F.3d 1483] Mohawk, however, insisted
that the officer's testimony was false.
It appears that Mohawk's appointed
counsel greeted this avowal with great skepticism. First one attorney and
then a second were designated to represent Mohawk, but neither apparently
believed that the government would fabricate evidence against him in so
blatant a fashion. So, too, neither would embrace the litigation strategy
Mohawk wished to adopt, namely, that he had been falsely accused because
of his activities on behalf of Native Americans. The record suggests that,
because of these conflicts, Mohawk determined to represent himself at trial.
At Mohawk's request, his first attorney
asked to be relieved. The district court granted counsel's motion, but,
over Mohawk's objection, appointed a new attorney to represent him. When
the second attorney-client relationship snagged upon the same points of
disagreement that had scuttled the first, Mohawk renewed his request to
be permitted to represent himself at trial. After a hearing on June 21,
1983, the district court granted this request, although the attorney remained
in court through the trial as advisory counsel.2
Mohawk's trial for armed bank robbery
began on June 22, 1983. The jury received its instructions and began deliberations
on July 1, 1983, returning a verdict of guilty later that same day. Mohawk
received his sentence and then filed a timely notice of appeal on August
9, 1983. Two weeks later he filed a timely transcript designation requesting
that all trial transcripts be included as part of the record on appeal.
To this day that request remains unfulfilled
in significant part. Whether through unwillingness or inability to do so,
and despite repeated orders from this court, the various court reporters
with responsibility for compiling a record of the proceedings at Mohawk's
trial failed to produce the required transcripts. Even after the imposition
of sanctions, the reporters would not or could not produce all the transcripts
demanded. In particular, the record before us now does not contain a transcript
covering the critical proceedings on June 21, 1983, when the trial court
granted Mohawk permission to proceed in propria persona.
Four years were consumed in this fruitless
effort to secure the complete trial record. Ultimately, in September 1987,
this court ordered the parties to submit a settled statement of the proceedings
covered by the missing transcripts pursuant to Rule 10(c) of the Federal
Rules of Appellate Procedure.3
[F.3d 1484] The parties'
attempts to comply with this order occupied the next two years. Following
submission, another year passed before the certificate of record issued
from the district court. At that point, Mohawk moved for the appointment
of appellate counsel, which motion was granted. Mohawk's opening appeal
brief was filed fifteen months later, on January 27, 1992.
Oral argument was heard and the case
submitted on May 8, 1992. The release of the Supreme Court's decision in
Doggett
v. United States on June 24, 1992, forced us to withdraw the case from
submission and to order supplemental briefing. The case was resubmitted
and an opinion prepared, but we were prevented from releasing it by this
court's determination that the case of United States v. Tucker, 964
F.2d 952 (9th Cir. 1992), should be reheard en banc. See United States
v. Tucker, 8 F.3d 673 (9th Cir. 1993) (en banc). The en banc decision
in Tucker permits us finally to decide this appeal - more than ten
years after its timely filing. We now reverse Mohawk's conviction and remand
to the district court for further proceedings.
II
The Sixth Amendment confers upon a
criminal defendant the right to represent himself or herself at trial.
Faretta
v. California, 422 U.S. 806, 807, 45 L. Ed. 2d 562, 95 S. Ct. 2525
(1975). However, the decision to proceed pro se entails the waiver of the
right to counsel provided by the same amendment. Any such decision is invalid
unless knowingly and intelligently made. Godinez v. Moran, 125 L.
Ed. 2d 321, 113 S. Ct. 2680, 2687 (1993); Faretta, 422 U.S. at 835.
On appeal, Mohawk contends that his decision to waive the assistance of
counsel did not meet this standard.
For a defendant's decision to represent
himself or herself to be knowing and intelligent, it must be established
that the defendant was "aware of the nature of the charges against him,
the possible penalties, and the dangers and disadvantages of self-representation."
United
States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987) (citation omitted).
In particular, we require proof that the defendant understood his or her
"constitutional right to have [a] lawyer perform certain core functions,"
and that he or she "appreciated the possible consequences of mishandling
these core functions and the lawyer's superior ability to handle them."
United States v. Kimmel, 672 F.2d 720, 721 (9th Cir. 1982). In conducting
this inquiry, our focus is on what Mohawk understood at the time of his
decision. See Balough, 820 F.2d at 1489.
It is the government that bears the
burden of showing that a defendant's waiver of trial counsel was knowing
and intelligent. See Michigan v. Harvey, 494 U.S. 344, 110 S. Ct.
1176, 1182, 108 L. Ed. 2d 293 (1990); United States v. Ant, 882
F.2d 1389, 1394 (9th Cir. 1989). That burden is a heavy one in general,
and heavier still under the circumstances of this case. We have said that
"the preferred procedure to ensure that a waiver is knowingly and intelligently
made is for the district court to discuss [the decision] with the defendant
in open court." Balough, 820 F.2d at 1488; Hendricks v. Zenon,
993 F.2d 664, 670 (9th Cir. 1993). Ordinarily, we simply would review the
answers given by a defendant in his or her colloquy with the court to evaluate
whether the decision to waive counsel was knowing and intelligent. Here,
we are prevented from doing so, for there is no contemporaneous record
of the June 21, 1983 proceedings at which Mohawk received permission to
proceed in propria persona. We thus cannot be certain how the court advised
Mohawk with respect to the potential consequences of representing himself,
nor what sort of appreciation of those consequences Mohawk displayed. The
Rule 10(c) settled statement is of no help in this regard, for it fails
to reconstruct any of the pertinent events that may have transpired at
the June 21 hearing.
For purposes of analysis, then, we
must assume that the district court wholly failed to discuss the question
of waiver with Mohawk. As a rule, such a failure is conclusive and requires
automatic reversal of a defendant's conviction. See id. A "limited
exception" to this rule permits us to conclude [F.3d 1485] that
a waiver is knowing and intelligent from "the particular facts and circumstances
surrounding [the] case, including the background, experience and conduct
of the accused." Id. (quoting Kimmel, 672 F.2d at 722). That exception,
however, is unavailing on this record. Nothing before us suggests that
Mohawk was possessed of "any legal training, specialized education, or
unusual background" that might allow us to say that he truly understood
the implications of his decision to represent himself. Id. 820 F.2d
at 1488-89. That Mohawk handled his defense more or less capably - he clearly
did, for example, conduct an effective cross-examination of his arresting
officer, forcing him to change his testimony - is, under our precedents,
irrelevant. "The manner in which a defendant conducts his defense cannot
establish his state of mind at the time he opted for self-representation."
United
States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978), quoted in
Balough, 820 F.2d at 1489. Similarly, that Mohawk emphatically asserted
his desire to represent himself does not mean that this desire was founded
on a true appreciation of the dangers of proceeding without counsel. On
the contrary, the record suggests the possibility that Mohawk was preoccupied
with his court-appointed attorneys' unwillingness to believe his account
of the facts and to adopt his preferred trial strategy, and thus that his
decision to dispense with their assistance might have been made with insufficient
regard for its implications.
We think Mohawk's decision to waive
his right to counsel may well have been knowing and intelligent - but we
are not free from doubt. The government has relied upon the record before
us and admits that it cannot hope to produce a better one. Thus, remand
would be pointless. We therefore hold that the government has failed to
carry its burden of establishing knowing and intelligent waiver, and that
Mohawk's Sixth Amendment rights under Faretta have been violated.4
Accordingly, we reverse his conviction.
III
Mohawk argues that his indictment should
be dismissed because of the amount of time it has taken for his appeal
to be heard.
Extreme delay in the processing of
an appeal may amount to a violation of due process." United States v.
Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S.
963, 111 S. Ct. 398, 112 L. Ed. 2d 407 (1990). However, "not every delay
in the appeal of a case, even an inordinate one," implicates an appellant's
due process rights. Id. at 1382 (quoting Rheuark v. Shaw,
628 F.2d 297, 303 (5th Cir. 1980), cert. denied, 450 U.S. 931, 67
L. Ed. 2d 365, 101 S. Ct. 1392 (1981)). Four factors must be considered
in evaluating claims of appellate delay: (1) the length of the delay, (2)
the reason for the delay, (3) the defendant's assertion of his right, and
(4) the prejudice to the defendant." Tucker, 8 F.3d at 676. "The
fourth inquiry is the most important: a due process violation cannot be
established absent a showing of prejudice to the appellant." Id.
(internal quotations omitted).
The government concedes, and we agree,
that the first three of these four factors weigh in Mohawk's favor on the
facts of this case. First, a delay of ten years is "extreme" by any reckoning.
See
Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1991) (characterizing eight-and-a-half
year delay as "staggering"). Second, the delay was occasioned by the fault
of the court reporters. Thus, notwithstanding that a different branch than
that which brought the prosecution caused the delay, it remains attributable
to the government. See id. ("delays by the court are attributable
to the state"). Third, Mohawk undeniably has done his best to press forward
with his appeal.
The critical question, then, is whether
Mohawk is able to establish that he was prejudiced by the inordinate length
of the appellate process. Three types of prejudice can flow from appellate
delay: (1) oppressive incarceration pending appeal; (2) anxiety and concern
of the convicted party awaiting the [F.3d 1486] outcome of the appeal;
and (3) impairment of the convicted person's grounds for appeal or of the
viability of his defense in case of retrial. Tucker, 8 F.3d at 676.
"It is emphasized that the last [of these three] is the most significant."
Coe, 922 F.2d at 532; Barker v. Wingo, 407 U.S. 514, 532, 33
L. Ed. 2d 101, 92 S. Ct. 2182 (1972).
Turning first to the second factor,
anxiety and concern, an appellant can establish prejudice only if he or
she reasonably experiences anxiety and concern "to such a degree as [to]
distinguish his [or her] case from that of any other prisoner awaiting
the outcome of an appeal." Tucker, 8 F.3d at 676 (internal quotations
omitted). Mohawk has not demonstrated that he experienced anxiety and concern
greater than any other prisoner appealing his or her conviction. He thus
cannot establish prejudice under this factor. Id.
We look next to the first factor, oppressive
incarceration. It is quite clear that "if [an appellant's] conviction was
proper, there has been no oppressive confinement; he has merely been serving
his sentence as mandated by law." Antoine, 906 F.2d at 1382; see Tucker,
8 F.3d at 676. Conversely, it can be said that "incarceration [is] unjustified
and thus oppressive" where a defendant's conviction is reversed on the
merits on appeal. Coe, 922 F.2d at 532. However, for the same reason
that an appellant can establish prejudice only by demonstrating that he
or she experiences greater anxiety and concern than other persons awaiting
their appeals, an appellant must distinguish himself or herself from any
other prisoner victorious on appeal in order to demonstrate that the extension
of his or her incarceration through delay was so oppressive as to warrant
the setting aside of an indictment. If it were otherwise, then prejudice
would exist in every case of appellate delay where a prisoner is awarded
a new trial. We do not believe that we are authorized to dismiss an indictment
under such broad circumstances. Tucker, 8 F.3d at 674 ("Although
we have supervisory power, the circumstances under which we may exercise
that power are substantially limited."); see also, Antoine, 906
F.2d at 1383 (appellant "may" have suffered oppressive confinement if appeal
from conviction is "substantively meritorious").
Since we have concluded that Mohawk's
conviction must be reversed because of the Faretta violation, we
conclude that he has been "oppressively incarcerated." Mohawk has not demonstrated,
however, that his incarceration is any more "oppressive" than that of any
other prisoner who has succeeded on appeal. Consequently, while reversal
of Mohawk's conviction indicates that he has suffered some prejudice, this
fact alone is not determinative of this issue.
These considerations lead us to the
final category of prejudice, impairment of the appellant's legal position.
Mohawk does not suggest that the delay in processing this appeal has in
any way undermined his substantive arguments for reversal before this court.
He does, however, allege that he would be prejudiced in the event of a
retrial. He offers two reasons: (1) defense witnesses will not be locatable
after so many years, and (2) the bases on which the testimony of key government
witnesses was impeached in the original trial may no longer have the same
impact.5
Neither of these allegations suffices
to show prejudice. As for the first, Mohawk has not identified any witness
he would wish to call on retrial who would be unavailable to testify. His
mere speculation on this point carries no weight. As for the second, we
doubt that a change in a defendant's ability [F.3d 1487] to impeach
an unfavorable witness, attributable to the inevitable change over time
in the circumstances under which that witness testifies, implicates the
rights protected by the Due Process Clause. In this instance, at least,
Mohawk's speculation about his ability to impeach the witnesses that might
appear against him is unpersuasive.
Mohawk thus has not made an affirmative
showing of particularized trial prejudice from the long period of appellate
delay he has had to endure. This, however, does not necessarily end our
inquiry. The Supreme Court's decision in Doggett v. United States, 120
L. Ed. 2d 520, 112 S. Ct. 2686 (1992), compels our attention, and raises
the question whether we should presume that the delay has prejudiced Mohawk's
ability to defend himself on retrial.
Doggett was indicted on federal drug
charges in February 1980. Before he could be arrested, however, he left
the country and the government lost track of his whereabouts. As a result
of negligence on the part of the government in pursuing Doggett, he was
not arrested until September 1988, eight and a half years after his indictment.
Doggett claimed that this inordinate pre-trial delay violated his rights
under the Speedy Trial Clause. Applying a test for pre-trial delay equivalent
to that applicable to appeals, the Court found that Doggett had satisfied
the requirements of the first three factors. He was, however, unable to
demonstrate that he had been prejudiced in any way by the lag between indictment
and trial. Doggett could hardly claim oppressive incarceration or undue
anxiety and concern, since he was at large during the entire period of
the delay and apparently knew nothing of his indictment until the time
of his arrest. More importantly, Doggett "failed to make any affirmative
showing that the delay weakened his ability to raise specific defenses,
elicit specific testimony, or produce specific items of evidence." 112
S. Ct. at 2692. The Court however, did not deem this failure fatal to Doggett's
cause:
Affirmative proof of particularized
prejudice is not essential to every speedy trial claim. Barker explicitly
recognized that impairment of one's defense is the most difficult form
of speedy trial prejudice to prove because time's erosion of exculpatory
evidence and testimony "can rarely be shown." 407 U.S. at 532, 92 S. Ct.
at 2193. And though time can tilt the case against either side, one cannot
generally be sure which of them it has prejudiced more severely. Thus,
we
generally have to recognize that excessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove or, for
that matter, identify. While such presumptive prejudice cannot alone
carry a Sixth Amendment claim without regard to the other Barker
criteria, it is part of the mix of relevant facts, and its importance increases
with the length of delay.
Id. 112 S. Ct. at 2692-93 (underscore
added, citations omitted).
The question thus arises whether the
logic of the Supreme Court's decision in Doggett applies with equal
force to the case at hand. We must decide whether Mohawk is entitled to
benefit from a presumption that delay on appeal has impaired the viability
of his defense on retrial, just as Doggett was presumed to have been prejudiced
in his ability to defend himself at a first trial because of the lag between
indictment and prosecution.
If this were an ordinary case, we would
answer this question in the negative without hesitation. The plain fact
is that it is not "generally" the case that delay compromises the reliability
of a retrial, as it does the reliability of a first trial
on the merits. To appreciate why this is so, we need only reflect upon
what it is about delay that gives rise to concern. Two sorts of prejudice
to a defendant are feared from extreme delay. First, there is the possibility
that witnesses will "die or disappear," or that their memories will fade,
leaving them "unable to recall accurately events of the distant past."
Barker,
407 U.S. at 532. Second, there is the problem of "time's erosion of exculpatory
evidence," Doggett, 112 S. Ct. at 2692-93, the risk [F.3d 1488]
that a defendant will be deprived of a fair opportunity of pursuing facts
that will be useful in his defense before the trail is cold.
It is evident that, in the pre-trial
delay context, it is quite impossible to judge how significant these sorts
of concerns may be, hence there is no way to evaluate their likely impact
on an accused's defense. A presumption of prejudicial impact thus makes
sense in such context. The same cannot be said, however, in a situation
involving appellate delay. The criminal defendant who prevails in a delayed
appeal will ordinarily have been convicted (albeit under circumstances
requiring reversal) in a full-fledged adversary proceeding of which there
is a complete and reliable record. Such an appellant, in facing the prospect
of retrial, thus has at his disposal the means of combatting or at least
of identifying any prejudice to his defense that might otherwise arise
from the passage of time. If important witnesses have become, for one reason
or another, unavailable, their former testimony may be introduced at the
second trial. See Fed. R. Evid. 804(b)(1). If memories have faded, they
can be refreshed, using the record compiled in the first trial. See
Fed. R. Evid. 612. If key testimony unaccountably changes, it can be impeached
by the same means. See Fed. R. Evid. 613. See generally United
States v. Chavez, 979 F.2d 1350, 1355 (9th Cir. 1992) (explaining how
availability of trial transcripts obviates problem of impairment of defense
on retrial). As for the opportunity to collect exculpatory evidence, a
defendant is in no sense deprived of this by a delay before retrial, so
long as he was able to pursue this opportunity in connection with his original
trial. See id.
In short, we are not persuaded that
extreme appellate delay generally threatens to prejudice a defendant's
ability to defend himself on retrial "in ways that [he] cannot prove or,
for that matter, identify." Doggett, 112 S. Ct. at 2693. In this respect,
we deem Doggett inapposite, and therefore conclude that it would
be inappropriate to afford all appellate delay claimants the benefit of
an automatic presumption of prejudice. Rather, we think the rules established
in our prior cases remain valid, and that the appellant must ordinarily
be required to show actual trial prejudice in the event of a second prosecution
in order to win outright dismissal of his indictment on the grounds of
appellate delay.
We acknowledge that, given our decision
that Mohawk's Sixth Amendment rights were violated, his situation is unusual.
Mohawk was represented by counsel up until the day his trial began, indicating
that he had a full opportunity to pursue exculpatory evidence when it mattered
most. He also had the assistance of advisory counsel throughout his trial
and availed himself of that assistance. Finally, although the absence of
one particular transcript has required us to hold that Mohawk's waiver
of the right to counsel was invalid, the transcripts of the testimony
offered at trial appear to be complete and reliable.6
These transcripts suggest that Mohawk was an effective advocate in his
own behalf and contain no glaring omission demonstrating that the record
is undeveloped in some critical fashion.
Nevertheless, as the court of appeals,
we recognize that we are not in the best position to assess the effect
of Mohawk's lack of representation at trial on his ability to demonstrate
actual prejudice in the event of retrial. We thus remand that question
to the district court for determination.
IV
We conclude by emphasizing that nothing
in this opinion should be taken either to condone or to extenuate the appalling
treatment that Mohawk has suffered at the hands of the court system. This
case has required us to locate the proper balance between individual [F.3d
1489] and societal interests in a situation involving the incarceration
of a man convicted of a violent crime, and we have not found that balance
an easy one to strike. Nonetheless, we do not suggest that it is anything
less than unconscionable that a criminal appeal should take ten years to
process. We accept our share of the responsibility here, for the delay
Mohawk has endured was undeniably attributable, at least in part, to our
own court's failure to supervise the actions of a dilatory court reporter.
In the future, this court will undoubtedly be quick to respond to allegations
that an appeal has been unjustifiably delayed, and will be prepared to
deal firmly with those individuals who prove responsible for that delay.
The judgment of conviction is REVERSED
and the case REMANDED to the district court for further proceedings.
1 Because the bank was a federally
insured institution, the district court had jurisdiction under 18 U.S.C.
§ 3231. The source of our jurisdiction is 28 U.S.C. § 1291.
2 As he had done before the grand jury,
the officer who arrested Mohawk testified at trial that Mohawk was wearing
the incriminating jacket at the time of his arrest. After his initial cross-examination
by Mohawk, the officer did some further research on the point during the
evening recess. Upon resuming the stand the next day, he corrected his
testimony and reported that it was not Mohawk, but rather one of his separately
tried co-defendants who had been arrested while wearing the jacket. While
this fact may help to explain why Mohawk elected to proceed in propria
persona, it was not of critical significance at trial. On appeal, Mohawk
does not argue that there was insufficient evidence of his involvement
in the robbery to support his conviction.
Mohawk does contend that the arresting
officer's erroneous grand jury testimony means his indictment was improperly
obtained, but we see no merit in such a contention. Nothing in the record
before us suggests that the officer knowingly gave or the prosecution knowingly
used false testimony before the grand jury. Moreover, there was substantial
additional evidence - including numerous identifications of Mohawk as the
man with the sawed-off shotgun in the bank surveillance photos - to establish
the requisite probable cause to support the indictment. We conclude that
the erroneous testimony "was not sufficiently material to justify holding
that it substantially influenced the grand jury's decision to indict."
United
States v. Spillone, 879 F.2d 514, 524 (9th Cir. 1989), cert. denied,
498 U.S. 878, 111 S. Ct. 210, 112 L. Ed. 2d 170 (1990). Accordingly, we
refuse to dismiss Mohawk's indictment on this ground.
3 "If no report of the evidence or
proceedings at a hearing or trial was made, or if a transcript is unavailable,
the appellant may prepare a statement of the evidence or proceedings from
the best available means, including the appellant's recollection. The statement
shall be served on the appellee, who may serve objections or proposed amendments
thereto within 10 days after service. Thereupon the statement and any objections
or proposed amendments shall be submitted to the district court for settlement
and approval and as settled and approved shall be included by the clerk
of the district court in the record on appeal." Fed. R. App. P. 10(c).
4 Harmless error analysis is inapplicable
to the unconstitutional denial of the right to counsel. See Balough,
820 F.2d at 1490 (relying on Rose v. Clark, 478 U.S. 570, 577-78,
92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986)).
5 One of the more important witnesses
against Mohawk was one Verdell Thundershields. Thundershields was convicted
in a separate trial of participating in the same bank robbery for which
Mohawk was tried. He subsequently agreed to testify at Mohawk's trial,
and identified Mohawk as one of the other robbers. On cross-examination
by Mohawk, Thundershields was significantly impeached with evidence of
prevalent drug use, mental instability, and his incentive to testify in
exchange for benefits promised by the government with respect to his own
sentencing. Mohawk argues that he would be prejudiced if Thundershields
were to testify in a second trial exactly as he did at the first, because
he might no longer be a drug user, mentally unstable, or beholden to the
government.
6 Apart from the hearing at which the
district court approved Mohawk's request to proceed in propria persona,
transcripts appear to be lacking only for the proceedings held at the conclusion
of the trial (involving jury instructions, closing arguments, etc.), and
certain proceedings held outside the presence of the jury at the end of
two of the trial days. The importance of these sorts of lacunae on direct
appeal is clear. But it is hard to imagine how these portions of the first
trial could become of importance at a second trial.
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