United States v. Chamberlain , 326 F. App'x 640 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-13-2009
USA v. Chamberlain
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1064
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1064
UNITED STATES OF AMERICA
v.
SCOTT CHAMBERLAIN,
Appellant
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS,
DIVISION OF ST. THOMAS/ST. JOHN
(D.C. Crim. No. 04-cr-00189-001)
District Judge: Honorable James T. Giles
Submitted Under Third Circuit LAR 34.1(a)
April 20, 2009
Before: BARRY, HARDIMAN, and COWEN, Circuit Judges
(Opinion Filed: May 13, 2009)
OPINION
BARRY, Circuit Judge
Appellant Scott Chamberlain was convicted of attempted robbery of the United
States, in violation of 18 U.S.C. § 2114, and grand larceny, in violation of 14 V.I.C. §
1083(1). On appeal, Chamberlain alleges a variety of errors. Because we find that the
District Court did not ensure that Chamberlain’s decision to waive his right to counsel
and proceed pro se was knowing, intelligent, and voluntary, we will vacate the judgment
of conviction and remand for further proceedings.
Factual Background
On November 30, 2004, Chamberlain attempted to rob a post office and a jewelry
store in St. Thomas, Virgin Islands. As to the former, Chamberlain approached a postal
employee, handed her a plastic bag, demanded that she fill it with money, and brandished
a gun.1 He repeated his demand, but the employee, apparently in shock and afraid, did
not do as instructed. Chamberlain left the post office. The employee, and another
employee who witnessed the events, contacted the police and described the putative
robber as a white man wearing a white t-shirt and a blue bathing suit.
Chamberlain next proceeded to a jewelry store where he pretended to examine an
expensive watch, and then fled the store with the watch. He was pursued and
apprehended by store employees, and soon detained by the police. An officer, noting the
similarity between Chamberlain’s appearance and the description of the man who
attempted to rob the post office, brought Chamberlain to the post office for the purpose of
identification. With Chamberlain handcuffed in the back of a police car, the two postal
1
The gun, it would later be discovered, was fake.
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employees positively identified him as the putative robber.2
Chamberlain was arrested and charged with attempted robbery and grand larceny.
On May 19, 2006, approximately two weeks before his trial was set to begin, he filed a
complaint about his then-current counsel with the Virgin Islands Bar Association and,
shortly thereafter, filed a motion for new counsel with the District Court. On June 6,
2006, the morning of trial, Chamberlain pressed his motion before the Court. The Court
required him to choose between proceeding pro se or going forward with his then-current
counsel. Chamberlain elected to represent himself, with counsel serving as stand-by
counsel.3 The jury convicted him on both counts, and he was sentenced to concurrent
terms of 66 months imprisonment. On appeal, he alleges a variety of errors.4 We have
jurisdiction pursuant to 28 U.S.C. § 1291.
2
Chamberlain testified at trial to a different version of events: he claimed that he had
no involvement whatsoever with the attempted robbery of the post office, and was the
victim of erroneous eyewitness identification. With respect to the jewelry store incident,
he claimed that he was simply taking the watch out of the store to show it to his employer,
who had promised to purchase him a watch as a reward for a job well done.
3
At trial, stand-by counsel questioned Chamberlain during his testimony, gave the
closing statement, and participated in the Rule 11 conference. Chamberlain conducted
the rest of the trial himself.
4
1 Chamberlain argues that his conviction should be vacated for the following reasons:
2 (1) insufficiency of the evidence; (2) error in the jury instructions; (3) the District Court’s
3 refusal to appoint an expert witness on the subject of the unreliability of eyewitness
4 identification; and (4) the District Court’s failure to ensure that he knowingly,
5 intelligently, and voluntarily waived his right to counsel.
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Discussion
Chamberlain claims that the District Court failed to ensure that his waiver of the
right to counsel was knowing, intelligent, and voluntary. We have repeatedly discussed
the framework and requirements for the waiver of the right to counsel.
The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have Assistance of Counsel for his
defense.’ The Supreme Court has construed this to mean that ‘the guiding
hand of counsel’ must be made available in criminal trials to those that can
not afford to hire an attorney on their own. It is now clear, however, that
the Sixth Amendment also guarantees the right of self-representation.
United States v. Stubbs, 281 F.3d 109, 116 (3d Cir. 2002) (internal citations omitted); see
also Faretta v. California, 422 U.S. 806 (1975). “Our review of whether a defendant’s
waiver of counsel was knowing and intelligent is plenary as it involves only legal issues.”
Stubbs, 281 F.3d at 113 n.2.
For a defendant to waive his right to counsel, he “must clearly and unequivocally
ask to proceed pro se.” Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir. 2000) (internal
citations omitted). If a defendant asks to proceed pro se, a district court must conduct a
searching inquiry into his understanding of the intricacies and disadvantages of pro se
representation.5 See, e.g., United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982) (“The
5
A defendant must establish “good cause” before a court would be required to appoint
new counsel. See Stubbs, 281 F.3d at 117 (noting that when a defendant “expresses a
desire to either substitute counsel or proceed pro se on the eve of trial . . . . [t]he court
must first determine if the accused can ‘show good cause [for dismissing counsel], such
as a conflict of interest, a complete breakdown in communication, or an irreconcilable
conflict with his attorney. . . . [I]f good cause does exist, counsel should be dismissed
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court . . . has the responsibility of ensuring that any choice of self-representation is made
knowingly and intelligently, with an awareness of the dangers and disadvantages inherent
in defending oneself.”). This inquiry, commonly known as a Faretta inquiry, is intended
to ensure that a defendant’s waiver of the right to counsel is knowing, intelligent, and
voluntary. See, e.g., Gov’t of the V.I. v. Charles, 72 F.3d 401, 404 (3d Cir. 1995).
Because of the centrality of the right to counsel to our justice system, we “indulge
every reasonable presumption against a waiver of counsel.” Buhl, 233 F.3d at 790.
Additionally, a Faretta-type error is structural, and requires automatic reversal. See, e.g.,
United States v. Jones, 452 F.3d 223, 230 (3d Cir. 2006) (“When a waiver is deemed
ineffective (i.e., not knowing, intelligent, and voluntary), there is no harmless error
review, and the conviction must be vacated and the case remanded for a new trial.”).
A waiver of the right to counsel “ought not [be] accept[ed] . . . absent a penetrating
and comprehensive examination of all the circumstances.” Stubbs, 281 F.3d at 118-19
(internal citations and quotations omitted). “Perfunctory questioning is not sufficient.”
Welty, 674 F.2d at 187. Indeed, “the defendant [must] be informed of all risks and
consequences associated with his decision for self-representation.” United States v.
‘even though it may necessitate continuing the trial’”) (quoting United States v. Welty,
674 F.2d 185 (3d Cir. 1982)).
Because it is sufficiently clear to us that the Faretta inquiry here was deficient, see
infra, we will not engage in a post hoc analysis of whether the purported conflict between
Chamberlain and his then-current counsel was of such magnitude as to require new
counsel, or whether the District Court properly forced him to choose between current
counsel and proceeding pro se.
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Peppers, 302 F.3d 120, 135 (3d Cir. 2002) (emphasis in original). In Peppers, we went
so far as to publish a list of 14 questions, some with sub-parts, that provides a “useful
framework for the court to assure itself that a defendant’s decision to proceed pro se is
knowing and voluntary.” Id. at 136.
We went even further in United States v. Jones, unambiguously holding that
“[a]lthough no scripted recital is required for [the Faretta] inquiry, we do require that all
of the subjects covered in the model questions set forth in Peppers be fully explored in the
inquiry, to the extent those subjects are relevant.” 452 F.3d at 234 (emphasis added). In
Jones, we analyzed the court’s colloquy in detail, noting that it failed to:
(1) “inquire whether [defendant] understood the possible defenses
available;”
(2) “explain that [the court] could not give [defendant] any assistance;”
(3) “discuss any of the potential problems that an incarcerated defendant
might encounter in obtaining evidence and locating and questioning
witnesses;”
(4) “ask any follow-up questions to determine the extent of [defendant’s]
understanding [about the Rules of Evidence and Criminal Procedure], and
whether [defendant] knew that these rules prohibited him from simply
telling the jury his story;”
(5) “inform[] [defendant] that representing himself was inadvisable;”
(6) “inform[] [defendant] of the magnitude of the sentence he could receive
as a career offender under the Sentencing Guidelines.”
Id. at 232. In light of these deficiencies, we could not find that the waiver of counsel was
knowing, intelligent, and voluntary and, thus, vacated the judgment of conviction.
The colloquy that took place here is even more deficient than the one found
lacking in Jones. After a discussion of Chamberlain’s complaints about counsel, the
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following exchange occurred:
Defendant: Well, you offered [for me to represent myself], and I’ve
accepted.
Court: Your attorney is trained. You’re there to assist in your
representation, if you wish him to do this.
Defendant: Yes.
Court: I will not assist you if you choose to represent yourself.
Defendant: Yes, I understand that, Your Honor.
Court: Do you choose to represent yourself?
Defendant: Yes, I do. And I choose to also have [counsel] assist me.
(App. 15-16.) Chamberlain then recited another litany of complaints against counsel. At
this point, the District Court terminated the colloquy, and proceeded to trial:
Defendant: . . . So I had no choice but to file a grievance complaint against
him and also to ask this Court to be an honorable Court and, under the
circumstances, please give me a new attorney.
And now, you know, here I am.
Court: Here you are.
Defendant: And I thank you for listening to me, and in making the offer you
have here. I wish you would reconsider - -
Court: 1:05.
Defendant: - - to give me a lawyer - -
Court: 1:05.
Defendant: Thank you, Your Honor.
[Defense Counsel]: Your Honor, before you adjourn, if I may, just for
clarity on the record, all of this is against advice of counsel.
Court: He is making his own decision. I’m sure he’s thought about it. 1:05.
(Id. at 16-17.)
Thus, the District Court informed Chamberlain only that counsel was trained and
that the Court would not assist him at trial. None of the other requisite subjects was even
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mentioned, let alone addressed in the manner envisioned by Peppers and Jones.6
Accordingly, we will vacate the judgment of conviction.
Conclusion
The judgment of conviction will be vacated and this matter will be remanded for
further proceedings. Given this disposition, we need not reach the numerous other issues
raised on appeal. See supra note 4 and accompanying text.7
6
The District Court failed to: (1) ask Chamberlain if he knew and understood the
defenses available to him; (2) discuss the problems Chamberlain could have in obtaining
evidence while incarcerated; (3) discuss, at all, Chamberlain’s awareness of and
knowledge about the Federal Rules of Evidence and Criminal Procedure; (4) recommend
that Chamberlain not proceed pro se; (5) inform Chamberlain of the charges against him;
(6) inform Chamberlain of the potential sentence he faced; (7) inquire into Chamberlain’s
background in law and knowledge of legal issues; (8) inform Chamberlain of the
existence and effect of the Sentencing Guidelines; and (9) inform Chamberlain that he
could not, except when testifying, simply tell the jury information and have it considered
as evidence. Cf. Peppers, 302 F.3d at 136.
7
We note, however, that were a new trial to be ordered, the District Court, on motion,
should carefully consider whether Chamberlain is entitled to have the assistance of an
expert witness as to reliability of eyewitness identifications generally and the problems
associated with cross-racial identifications and “show-up” procedures specifically. See,
e.g., United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006); United States v. Stevens,
935 F.2d 1380 (3d Cir. 1991); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985).
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