United States v. Wallace , 527 F. App'x 784 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 13, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-1413
(D.C. No. 1:11-CR-00058-CMA-1)
v. (D. Colo.)
ANTOINE J. WALLACE,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
In June 2012, a jury convicted Appellant Antoine Wallace of charges stemming
from the assault of employees at the United States Penitentiary in Florence, Colorado.
Mr. Wallace represented himself at trial. He now challenges his conviction, arguing that
the trial court violated his Sixth Amendment rights because it did not end his self-
*After examining Appellant’s brief and the 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)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
representation and instruct standby counsel to represent him. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
In February 2011, Mr. Wallace was charged with three counts of assaulting,
resisting, opposing, impeding, intimidating, and interfering with employees of the Federal
Bureau of Prisons in violation of 18 U.S.C. §§ 111(a)(1) and (b). He was initially
appointed counsel but then requested to represent himself.
The trial court held a hearing to ensure that Mr. Wallace was capable of
representing himself and understood the consequences of that decision. After advising
Mr. Wallace at length of the dangers and limitations of self-representation, the court
found that he knowingly, voluntarily, and intentionally waived his Sixth Amendment
right to counsel. The court also ordered the appointment of standby counsel to assist Mr.
Wallace at trial and in pretrial preparation.
On June 11, 2012, at the start of his two-day trial, Mr. Wallace informed the court
that he was “waiving [his] appearance to be present during this mock trial.” ROA, Vol. 3
at 80. Mr. Wallace repeatedly refused to allow standby counsel to represent him in his
absence. The court advised Mr. Wallace that there would be “a serious detrimental
impact if [he] refuse[d] to participate in the trial,” but Mr. Wallace insisted on being
absent. Id. at 81.
After questioning Mr. Wallace and informing him of the dangers of his decision,
the court concluded that he knowingly, voluntarily, and intentionally waived his right to
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be present at trial and to have standby counsel represent him. Mr. Wallace was placed in
a nearby holding cell with an audio feed of the trial proceedings. The court instructed
standby counsel to be seated in the back of the courtroom and to be “up to speed on what
has been presented [at] trial” in the event that Mr. Wallace “change[d] his mind and . . .
wishe[d] to proceed.” Id. at 92.
Mr. Wallace did not participate and had no representation during the first day of
trial. On the second day, he returned to the courtroom to cross-examine one of the
Government’s witnesses. He also testified in his own defense, made closing arguments,
and moved for a mistrial.
The jury found Mr. Wallace guilty of all three counts. He was sentenced to 720
months in prison.
II. DISCUSSION
Mr. Wallace argues that he engaged in “obstructive conduct” and that the trial
court should have “revoked [his] right to self-representation” and ordered standby
counsel to “step in on [his] behalf.” Aplt. Br. at 5. The court’s failure to do so, he
argues, violated his rights under the Sixth Amendment. We disagree.
The Sixth Amendment provides a criminal defendant with the right to assistance
of counsel. U.S. Const. amend. VI. It also includes the corresponding right to self-
representation, “provided only that [the defendant] knowingly and intelligently forgoes
his right to counsel and that he is able and willing to abide by rules of procedure and
courtroom protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173 (1984). Courts cannot
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“thrust counsel upon the accused,” Faretta v. California, 422 U.S. 806, 820 (1975),
because the defendant “must be free personally to decide whether in his particular case
counsel is to his advantage,” id. at 834.
Nevertheless, “the trial judge may terminate self-representation by a defendant
who deliberately engages in serious and obstructionist misconduct,” and “a State may—
even over objection by the accused—appoint a ‘standby counsel’ to aid the accused if and
when the accused requests help, and to be available to represent the accused in the event
that termination of the defendant’s self-representation is necessary.” Id. at 834 n.46.
Standby counsel may assist, over a defendant’s objections, in “explain[ing] and
enforc[ing] basic rules of courtroom protocol or . . . overcoming routine obstacles that
stand in the way of the defendant’s achievement of his own clearly indicated goals.”
McKaskle, 465 U.S. at 184. But the right to self-representation is eroded if standby
counsel is allowed, over the defendant’s objection, “to make or substantially interfere
with any significant tactical decisions, or to control the questioning of witnesses, or to
speak instead of the defendant on any matter of importance.” Id. at 178.
Mr. Wallace does not dispute that he knowingly and voluntarily waived his right
to the assistance of counsel and elected to proceed pro se. Similarly, Mr. Wallace
acknowledges that, when he announced his intention to be absent from trial, “[t]he trial
judge . . . explained in detail the dangers Mr. Wallace faced having no one to represent
him.” Aplt. Br. at 4. It also is undisputed that Mr. Wallace repeatedly refused to allow
standby counsel to represent him in his absence.
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Nonetheless, he contends that the trial court had an affirmative duty to terminate
his self-representation because of his obstructive conduct and that its failure to do so
violated his rights under the Sixth Amendment. He notes that at times he disobeyed the
trial court’s orders to stop talking and engaged in occasional outbursts.1
Although the Supreme Court has said that a “trial judge may terminate self-
representation by a defendant who deliberately engages in serious and obstructionist
misconduct,” Faretta, 422 U.S. at 834 n.46 (emphasis added), it has not held that the
Sixth Amendment mandates this outcome. Rather, the Court has instructed that trial
courts should not force unwanted counsel upon defendants who knowingly and
voluntarily assert the right to self-representation. See id. at 834; see also McKaskle, 465
U.S. at 178; see also United States v. Boigegrain, 155 F.3d 1181, 1185 (10th Cir. 1998)
(“[A] lawyer cannot be forced upon a defendant who wishes to act as his own
representative, even if self-representation would be detrimental to the defendant.”).
Other courts have addressed similar Sixth Amendment claims. In Clark v. Perez,
510 F.3d 382 (2d Cir. 2008), the Second Circuit rejected a claim that a criminal
defendant’s Sixth Amendment rights were violated because the trial court did not revoke
her pro se status or appoint standby counsel when she refused to participate in or attend
trial. Id. at 396. That court held that no Sixth Amendment violation occurred because
1
The record shows that Mr. Wallace did engage in occasional outbursts. The trial
court dealt with these outbursts patiently by ordering recesses, excusing the jury, and
ordering Mr. Wallace out of the courtroom temporarily to calm himself.
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the defendant “knowingly and intelligently waived her right to counsel, unequivocally
asserted her right to self-representation, made a conscious strategic choice to waive her
right to be present in the courtroom as part of a de facto political protest defense, and was
afforded the opportunity to return whenever she chose.” Id.2
On habeas review, the Third Circuit suggested in dicta that when a pro se criminal
defendant voluntarily refuses to participate at trial, the court should appoint counsel to
represent the defendant. See Thomas v. Carroll, 581 F.3d 118, 126 (3d Cir. 2009). The
pro se defendant in Thomas knowingly and voluntarily waived his right to counsel, was
never given standby counsel, and later voluntarily waived his right to be present at trial.
Id. at 119-122. Ultimately, the Thomas court denied habeas relief on the Sixth
Amendment claim, but it stated, “If this appeal had come before us on a direct appeal
from a federal court presented with a defendant who waived his right to counsel and then
absented himself from the courtroom, we might hold differently.” Id. at 127.
We conclude that Mr. Wallace’s Sixth Amendment claim is weaker than the
claims in Clark and Thomas and is thus unsuccessful. Mr. Wallace knowingly and
voluntarily waived his right to counsel and elected to proceed pro se. Unlike the
defendants in Clark and Thomas, he was appointed standby counsel in advance of trial.
2
The Second Circuit has signaled that if a misbehaving pro se defendant is
involuntarily removed from trial, standby counsel should be ordered to step in. Davis v.
Grant, 532 F.3d 132, 141-45 (2d Cir. 2008) (denying habeas relief on Sixth Amendment
claim, but indicating the result might have been different on direct appeal). Mr. Wallace
was not involuntarily removed from trial.
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At trial, Mr. Wallace knowingly and voluntarily waived his right to be present. When
asked if standby counsel could represent him in his absence, Mr. Wallace repeatedly
refused. Neither the Clark court nor the Thomas court was confronted with a defendant
who explicitly refused to allow standby counsel to present a defense. This request placed
the trial court in a difficult position, and its decision to allow Mr. Wallace to be absent
but to participate at trial if he so pleased respected his Sixth Amendment right to self-
representation.
Moreover, we do not agree with Mr. Wallace’s assertion that he did not receive a
fair trial as a result of the court’s failure to revoke his pro se status and instruct standby
counsel to represent him. See Aplt. Br. at 7 (arguing that, had the trial court ordered
standby counsel to represent him, “Mr. Wallace’s right to a fair trial would have been
preserved”). In Thomas, the Third Circuit suggested that the defendant’s trial might have
been unfair because his absence resulted in a “complete breakdown of the adversarial
process.” 581 F.3d at 126. The Third Circuit contrasted the defendant’s trial from the
trial in Clark, where the defendant “participated in parts of the trial, including a lengthy
closing statement to the jury,” resulting in an “‘intensely adversarial’” process.” Id.(quoting Clark, 510 F.3d at 397).
Like the trial in Clark, Mr. Wallace’s trial was adversarial despite his absence. He
participated in parts of the trial, cross-examined a Government witness, gave a closing
argument, and moved for a mistrial. We cannot say that the trial court’s decision resulted
in a “complete breakdown in the adversarial process.” Thomas, 581 F.3d at 126.
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The trial court honored Mr. Wallace’s choices with regard to self-representation
and standby counsel after determining those choices were made voluntarily and
knowingly. We see no Sixth Amendment violation.
III. CONCLUSION
For the foregoing reasons, we affirm.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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