United States v. Book , 51 F. App'x 819 ( 2002 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    OCT 18 2002
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 02-1000
    v.                                                D.C. No. 01-CR-52-N
    (D. Colorado)
    TOBY BOOK,
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before EBEL, LUCERO and O’BRIEN, Circuit Judges.
    Defendant Toby Book was indicted for three drug- and firearm-related
    offenses. (ROA I at 10, 24.) After firing two court-appointed attorneys, Book
    chose to represent himself. (ROA VI at 19.) When the district court ruled against
    him on his motion to suppress key evidence, Book changed his mind about
    representing himself and asked the court to appoint a new attorney for him.
    *
    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    order and judgment is not binding precedent, except under the doctrines of law of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. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be
    cited under the terms and conditions of 10th Cir. R. 36.3.
    (ROA X at 109-12.) The court refused to grant his request for another attorney
    and told Book he could choose between the two attorneys he had previously fired.
    (Id. at 115-18.) Book declined both attorneys and shortly decided to plead guilty
    to two counts of the indictment and waive his right to appeal any aspect of his
    case except his motion to suppress. (Id. at 118; ROA I at 87.) Book was
    sentenced to 84 months in prison and now appeals. (ROA XIII at 14, 107.) He
    argues that the court deprived him of his Sixth Amendment rights to counsel and
    self-representation. (Aplt. Br. at 1-2.) We exercise jurisdiction under 
    28 U.S.C. § 1291
    , find that Book’s waiver of his right to counsel was valid, hold him to the
    terms of his plea agreement and DISMISS his appeal for lack of jurisdiction.
    BACKGROUND
    In January of 2001, police officers in North Denver arrested Book in a
    parking lot, where he was sitting in his car packaging drugs that he was planning
    to sell. (ROA V at 4, 34-38.) When the police searched his car, they found 83
    grams of methamphetamine and a sawed-off shotgun. (ROA I at 1; ROA IX at
    69-70.) In February, Book was indicted on three counts: possession with intent to
    distribute 50 grams or more of methamphetamine, in violation of 
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(B)(viii); possession of a firearm during and in relation to a
    drug offense, in violation of 
    18 U.S.C. § 924
    (c)(1)(B); and being a felon in
    -2-
    possession of a firearm, in violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2).
    (ROA I at 10. 24.) Assistant Federal Public Defender Warren R. Williamson was
    appointed in January to represent Book but withdrew in March at Book’s
    prompting, stating that Book no longer trusted him, a sentiment that Book
    confirmed. (ROA I at 18; ROA II.) The district court then appointed attorney
    Stephen M. Wheeler to represent Book. (ROA I at 19.) Wheeler moved to
    suppress the evidence found in Book’s car. (ROA I at 25.) At the beginning of
    the July 16 hearing on the motion, Book asked the court to dismiss Wheeler and
    appoint new counsel because of Wheeler’s unwillingness to pursue a “chain of
    custody” argument that Wheeler felt was not worth pursuing. (ROA VI at 3-9.)
    After inquiring into Book’s dissatisfaction with Wheeler, the court denied
    Book’s request, finding “no basis” for his ineffectiveness claim. (Id. at 12.) The
    court told Book that he could either retain Wheeler or proceed pro se. (Id. at 9-
    10.) After explaining to Book the charges against him and the risks involved with
    representing himself, the court permitted Book to proceed pro se and asked
    Wheeler to stay on as standby counsel for the duration of the suppression hearing.
    (Id. at 12-20.) In August, however, both Wheeler and Book moved that Wheeler
    be removed as standby counsel due to irreconcilable differences between them.
    (ROA I at 70, 71.) The court granted the motions. (ROA VIII at 3.)
    -3-
    On September 5, the court denied Book’s motion to suppress. (ROA X at
    103.) Book then asked the court to give him a new attorney. (Id. at 109.) The
    court offered to reappoint Wheeler, but Book declined, explaining that he and
    Wheeler differed on what strategy should be used in his case. (Id. at 109-14.)
    After telling Book to choose between proceeding pro se or accepting
    Wheeler and that it believed Book’s request for new counsel was simply a
    delaying tactic, the court said that it would also be willing to reappoint
    Williamson, Book’s first attorney in the case. 1 (Id. at 115, 117.) Book refused
    1
    The court’s exchange with Book included the following:
    THE COURT: Do you want me to reappoint Mr. Williamson, your first
    attorney?
    THE DEFENDANT: I don’t even know if Mr. Williamson would be willing
    to do this either.
    THE COURT: Why should anybody else be willing? You fired two
    attorneys, you want a third one. *** I’ll broaden the choice: you can have
    Mr. Williamson or Mr. Wheeler.
    THE DEFENDANT: Neither one of those attorneys would be of any use to
    me.
    ***
    THE COURT: *** Now, what do you want me to do, represent yourself or
    have Mr. Wheeler or Mr. Williamson? Your choice as to–
    THE DEFENDANT: Wouldn’t be fair for me to take either one of those
    attorneys.
    (continued...)
    -4-
    that offer as well. (Id. at 117-19.) Two weeks later, he pled guilty to two of the
    three counts in the indictment (possession with intent to distribute and felon in
    possession of a firearm) and waived his right to appeal any issue except his
    suppression motion. (ROA I at 87; ROA XI.) In December, Book–now
    represented by Williamson, his first attorney–was sentenced to 84 months in
    prison and four years of supervised release. (ROA XII at 2-3; ROA I at 105.)
    Judgment was entered in February; this appeal followed. (ROA I at 113, 107.)
    DISCUSSION
    Standard of review
    We review de novo both a defendant’s waiver of his right to counsel and
    whether a defendant’s plea was knowing and voluntary. United States v. Hughes,
    
    191 F.3d 1317
    , 1323 (10th Cir. 2000); United States v. Rubio, 
    231 F.3d 709
    , 712
    (10th Cir. 2000).
    1
    (...continued)
    THE COURT: Why?
    THE DEFENDANT: Both of those attorneys have been dismissed from my
    case. It wouldn’t be fair to have them represent me again. I can’t represent
    myself.
    THE COURT: Then you’re representing yourself. You let the marshal
    know if you change your mind. ***
    (Id. at 117-19.)
    -5-
    Introduction
    If enforceable, Book’s plea agreement–which waived his right to appeal
    any issue but his motion to suppress–robs us of subject matter jurisdiction over
    his case, and we must dismiss his appeal. “We do, however, have jurisdiction to
    determine our jurisdiction.” Rubio, 
    231 F.3d at 711
    . First, we must determine
    whether the defendant’s waiver of counsel was voluntary, knowing and
    intelligent. See Faretta v. California, 
    422 U.S. 806
    , 835 (1975). Second, we must
    ask whether the defendant entered into the plea agreement knowingly and
    voluntarily. Rubio, 
    231 F.3d at 712
    .
    Book’s waiver of his right to counsel
    Here, we inquire into Book’s two waivers of counsel: one, his initial waiver
    during his July 16 suppression hearing, when he fired Wheeler and the court
    refused to appoint new counsel; and two, his September request for new counsel
    after he lost his suppression motion.
    For a defendant’s waiver of counsel to be voluntary, “the trial court must
    inquire into the reasons for the defendant’s dissatisfaction with his counsel to
    ensure that the defendant is not exercising a choice between incompetent or
    unprepared counsel and appearing pro se.” Braun v. Ward, 
    190 F.3d 1181
    , 1185-
    86 (10th Cir. 1999) (quoting United States v. Silkwood, 
    893 F.2d 245
    , 248 (10th
    -6-
    Cir. 1989) (internal quotation marks omitted)). In July, Book was given a choice
    between proceeding pro se and accepting a competent attorney; that he chose the
    former because Wheeler refused to pursue a “chain of custody” argument does not
    make his choice involuntary in the constitutional sense. 2 In September, he was
    given a choice between proceeding pro se and accepting one of two competent
    attorneys, and he again refused that offer. When the court twice asked Book
    whether he would accept Williamson or Wheeler, Book responded, “Neither one
    of those attorneys would be of any use to me,” and “Both of those attorneys have
    been dismissed from my case. It wouldn’t be fair to have them represent me
    again.” (ROA X at 118.) Those statements fail to suggest the existence of an
    irreconcilable conflict that would warrant the appointment of yet another attorney.
    We find that his waiver of counsel was voluntary.
    2
    After Book explained his “chain of custody” argument and his desire to
    fire Wheeler for not pursuing it, the court told Book that it found “nothing in your
    presentation to suggest that Mr. Wheeler has been incompetent.... Your other
    complaints seem to me to be irrational.” (ROA VI at 10, 11.) We agree with the
    district court. Absent an abuse of discretion, “deficiencies in the chain of custody
    go to the weight of the evidence and not its admissibility,” United States v. Gay,
    
    774 F.2d 368
    , 374 (10th Cir. 1985), the proper time for Book–or Wheeler–to have
    raised this claim was at trial, not during the motion to suppress. The district court
    properly recognized this. (ROA VIII at 10-12.) Book was not entitled to fire
    Wheeler and receive new counsel merely because he disagreed with Wheeler’s
    strategic approach to the case. See United States v. Padilla, 
    819 F.2d 952
    , 956
    (10th Cir. 1987).
    -7-
    In determining whether a defendant’s waiver of his right to counsel was
    knowing and intelligent, “[t]he record should establish the defendant had a sense
    of the magnitude of the undertaking and the inherent hazards of self-
    representation at the time of his decision to proceed pro se.” United States v.
    Taylor, 
    113 F.3d 1136
    , 1141 (10th Cir. 1997). As noted above, the district court
    engaged in lengthy colloquy with Book before allowing him to proceed pro se in
    July. Given the extent of that colloquy and the court’s finding that Book was
    asking for a third attorney simply to delay the proceedings, Book’s argument that
    his hand was being forced is not credible. We reach the same conclusion with
    respect to his waiver at the September hearing. We find that his waiver of
    counsel in both July and September was knowingly and voluntarily made.
    Book’s waiver of his right to appeal
    “This court will hold a defendant to the terms of a lawful plea agreement.”
    United States v. Atterberry, 
    144 F.3d 1299
    , 1300 (10th Cir. 1998). In his
    Opening Brief, Book alleges only that he did not voluntarily waive his right to
    counsel; not until his Reply Brief does he attack his plea agreement. “Issues not
    raised in the opening brief are deemed abandoned or waived.” Coleman v. B-G
    Maintenance Mgmt., 
    108 F.3d 1199
    , 1205 (10th Cir. 1997). Because we have
    determined that Book validly waived his right to counsel, we will hold him to the
    -8-
    terms of his lawful plea agreement. That agreement waived Book’s right to
    appeal any issue except his motion to suppress. We therefore DISMISS his
    appeal for lack of jurisdiction.
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
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