United States v. Venable , 373 F. App'x 402 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4871
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EUGENE VENABLE, a/k/a James E. Venable,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00199-RLW-1)
Submitted: February 23, 2010 Decided: April 14, 2010
Before KING and GREGORY, Circuit Judges, and Joseph R. GOODWIN,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.
Reversed and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge King and Judge Goodwin joined.
Pleasant S. Brodnax, III, LAW OFFICE OF PLEASANT S. BRODNAX,
Washington, D.C., for Appellant. Neil H. MacBride, United
States Attorney, Alexandria, Virginia, Richard D. Cooke,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Defendant James Eugene Venable (“Venable”) appeals his
conviction, claiming that the district court violated his Sixth
Amendment right to counsel in not obtaining a voluntary and
knowing waiver and forcing him to proceed pro se. We agree and
reverse his conviction.
I.
On April 21, 2008, Venable was indicted on one count of
possession of a firearm/ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). One day later, Venable
received appointed counsel from the Federal Public Defender’s
Office. He then pled not guilty. In a motion dated May 20,
2008, Venable requested new appointed counsel, asserting
numerous claims, including that: (1) “months have gone by”
without counsel doing as he wanted; (2) counsel refused to call
Venable’s former attorney about immunity Venable allegedly
received at the Commonwealth’s Attorney’s Office; (3) counsel
refused to investigate Venable’s claim that he received immunity
when his home was searched; (4) counsel and Venable “can’t see
eye to eye”; and (5) he “[found] it very hard to communicate
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with counsel” and wanted a new attorney not from the Federal
Public Defender’s Office. J.A. 23-24. 1
At the hearing on his motion, Venable stated that he did
not “feel comfortable” with counsel and that, although he had
“nothing personal against” counsel, they were “not seeing eye-
to-eye on things.” J.A. 29. After hearing several similar
statements, the court denied Venable’s motion for new counsel,
explaining that while Venable did have a right to appointed
counsel, he did not have a right to counsel he “feel[s]
comfortable with,” and that the court had appointed capable
defense counsel. J.A. 30. Without conducting any colloquy with
Venable about waiver of his right to counsel and without giving
Venable the choice of proceeding with the counsel the court had
appointed, the court ordered Venable to proceed pro se:
Well Mr. Venable, the Constitution guarantees you the
right to have counsel appointed. The Court very
carefully appoints lawyers that are competent and
capable of handling the type case that is brought
against you. The Constitution also gives you an
absolute right to represent yourself, and my policy
has always been, and I stick to it in any number of
these cases, that where I have appointed competent
counsel to represent a defendant there is nothing in
the Constitution that says that you are entitled to a
lawyer that agrees with you, that you feel comfortable
with, compatible with, that you have personality fits
and that sort of thing. So I am now denying your
motion to replace the counsel that you have, but I
1
Citations to J.A. __ refer to the Joint Appendix filed by
the parties upon appeal.
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will keep her in the case on a stand-by basis. And
you are now pro se, and you get to represent yourself.
And she is not to participate in your case unless you
specifically request her.
J.A. 29-30. At the conclusion of the hearing, the court
reiterated its ruling on the motion for new counsel and
encouraged him to enter into a plea agreement:
Mr. Venable let me suggest that it would be in your
best interest to read what appears to be a plea
agreement that has previously been negotiated, but
read it over and see if it serves your best interest,
because you get so many advantages out of something
like this that you can’t believe it. And you will
have stand-by counsel, and she will talk to you. And
I am satisfied that she is more than competent to
handle cases of this nature. She has had any number
of them before me and my colleagues, so your motion
for new counsel is denied. You are basically now pro
se, but you will have stand-by counsel. And you can,
if you feel that you are getting in over your head and
you need her assistance, she will be required to give
it to you. Do you understand that?
J.A. 35. Although Venable responded that he understood, the
court never warned him of the dangers of self-representation and
never indicated that Venable had a choice to continue with his
appointed counsel rather than represent himself. In an order
issued later that day, the court clarified that Venable could
continue to be represented by appointed counsel. J.A. 37.
After the government filed a superseding indictment
increasing the number of guns Venable was charged with
possessing, Venable appeared pro se before the district court to
be arraigned. At the arraignment, Venable again complained
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about standby counsel, “I had asked counsel to help me get my
witnesses and all that, and she stated when we was [sic] here
that I am on my own, that she wasn’t going to help me.” J.A.
48. The court responded that it had ordered standby counsel to
carry out Venable’s requests for assistance and that Assistant
Federal Defender Robert Wagner (“Wagner”) agreed his office
would assist Venable.
On July 7, 2008, Venable filed one of his many pro se
motions, this time asking for new standby counsel. He stated
that he “became Pro Se with out requesting for such status, and
the ineffective counsel . . . became standby counsel; who still
refuses to help Venable.” J.A. 51. On a separate motion the
same day, entitled “Motion to Object,” Venable claimed that he
“[a]t no time elected to proceed Pro Se, Nor [sic] did he ever
waived [sic] his Federal Constitutional Amendment under the 6
Six [sic] Amendment Right.” J.A. 56.
On July 23, 2008, the appointed standby counsel moved to
withdraw because “the attorney-client relationship [had]
irreparable [sic] dissolved.” J.A. 90. She informed the court
that responding to Venable’s allegations would breach the
attorney-client privilege, and that such response would “likely
be detrimental to the client.” J.A. 89.
Venable appeared pro se the following day on a motions
hearing and to be arraigned on a second superseding indictment,
5
which again increased the number of guns charged. The court
granted standby counsel’s motion to withdraw but added “for the
record” that counsel had provided effective assistance. J.A.
95. The court then appointed Wagner as standby counsel and
turned to Venable’s motion to suppress. After a confused cross-
examination of a government witness and an order that cross-
examination end, Venable stated that, “I would like to point out
that I am not an attorney. And I am fighting hard to try to
make sense of all of this.” J.A. 124. At the conclusion of the
hearing, Wagner raised concern that he “[didn’t] believe that
[Venable] ever specifically requested that he represent himself”
and instead had simply asked for new appointed counsel. J.A.
131. The court held that:
I ruled earlier that [Venable] had a right to
represent himself, or he had a right to work with
counsel. He elected not to work with counsel that I
had ruled was competent to represent him. And so it
follows that I then ruled that he elected to go pro
se. And while he didn’t specifically say those magic
words, this Court ruled that his actions speak louder
than words.
J.A. 131-32. Venable himself responded that he was “asking for
an attorney.” J.A. 132. The court told Venable that he was
really insisting on a right to pick-and-choose appointed
counsel, to which Venable stated, “That ain’t what I did.” J.A.
133. However, the court continued:
That is the sense of it. But you have no such right.
You are entitled to a competent lawyer that the Court
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designates to represent you. Once that designation is
made, smart defendants will cooperate with their
competent lawyer and let that lawyer represent them
and take charge of the case. You elected not to do
that, so I have ruled because you refused to abide by
the rules of the Court and accept a competent
attorney[,] then the only other option is to proceed
pro se. And that is the option that you now have.
And I won’t ever readdress the issue of you getting
another lawyer. Do you understand that?
J.A. 133. Venable replied, “No, sir.” The court, after
ordering the court in recess, stated that Venable “still [had]
the option to cooperate with Mr. Wagner.” J.A. 133.
After seven additional pro se motions, the court issued an
order in which “the Court FINDS that at a status hearing held on
June 4, 2008, the defendant waived his Sixth Amendment right to
counsel and irrevocably chose to represent himself pro se.”
J.A. 135. On August 11, 2008, Venable proceeded to represent
himself at trial. After proceedings in which Venable constantly
expressed his confusion, the jury found him guilty.
Wagner subsequently filed a motion requesting that Venable
undergo a mental health evaluation for the purpose of
determining mitigation evidence at sentencing. On January 21,
2009, the court ordered a mental health evaluation of Venable.
During the sentencing hearing, the government informed the court
that the evaluation found that Venable “has a low level of
intellectual functioning. And it says his problem-solving,
reasoning, and judgment are likely to be impaired as a result.”
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J.A. 289. The report concluded that “given [Venable’s] limited
cognitive functioning[,] self-representation may not be a
realistic goal.” J.A. 346. Based on its assessment that
Venable suffered from severe mental deficiencies, the court
granted Venable a downward variance from the guideline range of
seventy-seven to ninety-six months to a sentence of sixty months
in prison.
Venable timely appealed his conviction, claiming that the
court violated his Sixth Amendment right to counsel in failing
to obtain a valid waiver and forcing him to proceed pro se.
II.
“Determination of a waiver of the right to counsel is a
question of law, and thus we review it de novo.” United States
v. Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997) (citation
omitted).
III.
a.
“Although a defendant may waive his right to counsel, the
courts entertain every reasonable presumption against the waiver
of this fundamental constitutional right.” United States v.
Johnson, 659 F.2d 415, 416 (4th Cir. 1981). “In order for a
waiver to be valid, it must be shown that the defendant
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intentionally relinquished a known right.” Id. Thus, “[w]aiver
of the right to counsel, as of constitutional rights in the
criminal process generally, must be a ‘knowing, intelligent
ac[t] done with sufficient awareness of the relevant
circumstances.’” Iowa v. Tovar, 541 U.S. 77, 81 (2004) (quoting
Brady v. United States, 397 U.S. 742, 748 (1970)).
It is the government’s burden to prove that Venable waived
his right to counsel. See Brewer v. Williams, 430 U.S. 387, 404
(1977). Here, the government concedes that because the district
court “did initially err in ordering the defendant to represent
himself without giving him the choice of retaining his existing
counsel, and never provided any meaningful explanation to
defendant about the dangers of self-representation, . . .
defendant’s conviction must be vacated.” Respt.’s Br. 32.
Because the government agrees that Venable did not intentionally
and knowingly waive his right to counsel, it follows that it did
not meet its burden of proving the validity of such waiver.
Therefore, although typically the government’s confession of
error “does not relieve this Court of the performance of the
judicial function,” Young v. United States, 315 U.S. 257, 258
(1942), the admission of error in this case requires that we
reverse Venable’s conviction.
Even putting aside the government’s concession, Venable
plainly did not waive his right to counsel. Nothing in the
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record can be construed as a voluntary waiver. The basis for
the court’s forcing Venable to proceed pro se was a handwritten
motion in which Venable expressed discomfort with his appointed
counsel. Nothing in this note or Venable’s argument to the
court demonstrates a clear and unequivocal waiver of the right
to counsel. Venable not once expressed a desire to represent
himself. Rather, Venable repeatedly asserted that he never
requested to proceed pro se and did not understand why he had no
representation.
Even if he had expressed a desire to represent himself,
such waiver would not have been knowingly and intelligently made
because the court failed to inform Venable of his options or
conduct any inquiry into whether Venable waived the right to
counsel. While neither the Supreme Court nor the Fourth Circuit
has mandated the exact type of inquiry a court must conduct to
determine if a defendant has waived the right to counsel, see
Tovar, 541 U.S. at 88, some inquiry must occur “so that [the
district judge] may know, and the record may demonstrate, beyond
cavil, that an accused knows that he has a right to employ and
consult with an attorney . . . and that he voluntarily and
intelligently relinquishes that right.” Townes v. United
States, 371 F.2d 930, 934 (4th Cir. 1966). This inquiry should
include “[w]arnings of the pitfalls of proceeding to trial
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without counsel.” Tovar, 541 U.S. at 89 (internal quotation
marks and citations omitted).
Here, no warnings were given at all. Based on Venable’s
motion claiming differences with appointed counsel, the court,
without further inquiry, found Venable must proceed pro se.
J.A. 30. Although the court sought to clarify after the fact,
it initially gave Venable no option other than self-
representation. Venable was not, as is required, aware of the
“‘relevant circumstances.’” Tovar, 541 U.S. at 81 (quoting
Brady, 397 U.S. at 748). In addition, despite Venable’s
numerous statements that he did not want to represent himself,
the court did not inquire into whether Venable waived his right
to counsel or whether Venable’s waiver was voluntary, knowing,
and intelligent. 2 Thus, the court violated Venable’s Sixth
Amendment right to counsel in forcing him to proceed pro se in
the absence of a valid waiver.
2
The district court, in refusing to hear Venable’s express
desire to not waive his right to counsel, found Venable’s
“actions [spoke] louder than words.” J.A. 131-32. While some
law outside this Circuit supports the general proposition that a
defendant can waive the right to counsel without affirmatively
invoking his right to self-representation, the same case law
provides that waiver is only valid if knowingly and
intelligently made. See United States v. Garey, 540 F.3d 1253,
1265-66 (11th Cir. 2008) (“[W]hen an indigent defendant rejects
competent, conflict-free counsel, he may waive his right to
counsel by his uncooperative conduct, so long as his decision is
made with knowledge of his options and the consequences of his
choice.”).
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b.
Although both parties agree that this case should be
remanded, they differ on the appropriate relief. The government
argues that the mental health evaluation was not conducted
according to any statutory authority, and that on remand,
Venable’s competency to stand trial should be evaluated under 18
U.S.C. § 4241. We need not decide whether the court took proper
notice of the evaluation at issue because we do not consider the
propriety of Venable’s sentence. Likewise, although the
district court is, of course, free to conduct a competency
hearing on remand, such issue is beyond this appeal. On the
other hand, Venable argues that we should dismiss his case with
prejudice, but such remedy is not appropriate for the Sixth
Amendment violation before us.
IV.
Based on the foregoing analysis, we reverse Venable’s
conviction and remand the case for a new trial.
REVERSED AND REMANDED
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