United States v. Vandergriff ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-51051
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
DUDLEY EDWARD VANDERGRIFF
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(P-97-CR-66-1)
February 17, 1999
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
Defendant-appellant, Dudley Vandergriff, appeals his
conviction for possession of a firearm by a felon. On appeal,
Vandergriff contends that his warrantless arrest was without
probable cause, and therefore the evidence seized pursuant to his
arrest should have been suppressed. Vandergriff also appeals his
alleged denial of his right to waive counsel and represent himself
at trial. Because we conclude that Vandergriff was denied his
Sixth Amendment right to self-representation, we do not reach the
issue of the constitutionality of his warrantless arrest. We,
*
Pursuant to 5th CIR.R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5th CIR.R. 47.5.4.
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therefore, vacate and remand.
The record evidence tends to prove the following facts. On
April 27, 1997, members of an organization known as the “Republic
of Texas” kidnaped two residents of the Fort Davis Resort at
gunpoint in their home. The members occupied the home and held the
residents captive for a number of hours until Texas Department of
Public Safety (TDPS) officials negotiated a release of the hostages
in return for permitting the kidnappers to return to the “Embassy
of the Republic of Texas.”1 On April 29, the “Republic of Texas”
issued a “call to arms” over the Internet, commanding defense
forces to proceed to Balmorhea, Texas where they would be met by
other militias. The day after this “call to arms,” the Pecos
Police Department (PPD), received a teletype from TDPS that
indicated that a tan Suburban containing four males was traveling
west on Interstate 20, presumably in response to the call to arms.
The teletype instructed the police to “DEVELOP OWN PROBABLE CAUSE
FOR STOP . . . .” Balmorhea is approximately 45 miles South of
Pecos.
The PPD observed not only the Suburban as it entered Pecos,
but also a blue Oldsmobile that appeared to be traveling with the
Suburban. An officer of the PPD followed the vehicles until they
stopped at a truck stop (“Flying J”). According to the record, the
Oldsmobile followed close behind the tan Suburban, and pulled
alongside the Suburban after entering the parking area of the
1
The “Embassy” was essentially a shack-like structure located
in the Davis Mountains near Fort Davis, Texas.
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Flying J. Thereafter, the occupants of the vehicles appeared to
have a conversation. After the vehicles parked, five white males
exited the vehicles and entered the Flying J.
The Texas Rangers met the PPD at the Flying J and observed
that the license plate of the Suburban matched the license plate
number in the teletype. As the Rangers approached the Oldsmobile
and Suburban, they observed two male passengers, one asleep in the
Oldsmobile and one asleep in the Suburban, and a partial view of a
gun barrel in the rear portion of the Suburban.
The officers woke the sleeping occupants of the Oldsmobile and
Suburban and told them to exit the vehicles and lie on the ground.
The officers then proceeded to handcuff the occupants. As these
events transpired, two of the males that had entered the Flying J
happened to exit, one of whom was Vandergriff. The officers
instructed them to lie on the ground, and they were subsequently
handcuffed. Thereafter, the officers entered the Flying J and
escorted the remaining three men outside and ordered them to lie on
the ground, and they were handcuffed. The officers then
transported all of the handcuffed individuals to the Revees County
Sheriff’s Office. Additionally, the officers impounded the
Oldsmobile and Suburban, and brought them to the Revees County
Sheriff’s Office.
After an inventory search of the vehicles at the Sheriff’s
Office, the officers found several weapons, ammunition,
paramilitary gear with ROT insignia, and ROT paraphernalia in both
vehicles. Items that were specifically found in the Oldsmobile
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were two loaded SKS rifles, hundreds of rounds of ammunition, a
military backpack with supplies, low grade explosive powder, and
Kevlar helmets, all located in the trunk; as well as title
information that indicated that the car belonged to Mrs. Elizabeth
Vandergriff, Vandergriff’s mother, and a Bible that was inscribed
“Presented to Dudley Vandergriff.”
At the Sheriff’s Office, approximately eight an a half hours
after the events transpired at the Flying J, a Texas Ranger
interviewed Vandergriff. Vandergriff waived his rights, and denied
any knowledge of the Fort Davis standoff and any knowledge of the
blue Oldsmobile. He told the officer that he was riding in the
Suburban, and that he was traveling to go hunting for hogs. Not
fully satisfied with Vandergriff’s explanation, the officers
transported Vandergriff to the Reeves County Detention Center.
A background check revealed that Vandergriff had a previous
felony conviction for possession of cocaine. In the criminal
Complaint, the Government charged Vandergriff with Possession of a
Firearm by Felon, 18 U.S.C. § 922(g), because of the weapons found
in the trunk of the Oldsmobile. Vandergriff’s motion to suppress
the evidence found in the Oldsmobile was overruled at trial, and
after a jury trial he was convicted and sentenced to 102 months in
jail.
At a pre-trial hearing, Vandergriff voiced his intent to
represent himself. The district court inquired into Vandergriff’s
formal education and other training, and ordered a psychiatric
examination to determine if he had the mental competency to stand
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trial.
Thereafter, the counsel for Vandergriff filed a Motion to
Withdraw as Attorney because Vandergriff wrote him a letter
instructing him to do so. At a hearing in response to the Motion
to Withdraw, Vandergriff seemed to ambiguously assent to be
represented by counsel.2 Soon after this hearing, the Government
2
The following colloquy occurred between the Appellant and the
Court:
COURT: But you indicated that you wanted to charge Mr.
Leahey [Vandergriff’s attorney] with defamation and
slander and a few other things, and that you wanted
him to withdraw as counsel in this case. You are
aware of that, are you not?
APPELLANT: Yes, sir, I am.
COURT: And the reason we have to have this hearing is
because I want to know if you still feel that way
about getting rid of Mr. Leahey.
APPELLANT: Okay. Well, sir, a question that would come to my
mind first -
COURT: Yes, sir.
APPELLANT: Would be if indeed I do recuse Mr. Leahey of my
services, would I therefore still be under the
contract to have another court appointed attorney?
COURT: Yes.
APPELLANT: Assigned by this Court?
COURT: Yes, sir.
APPELLANT: So I would not have the choice of standing sui
juris or hiring another attorney?
COURT: You hire anybody you want to, as long as he is a
lawyer, Mr. Vandergriff. And certainly if you can
afford an attorney, or members of your family can
afford an attorney, certainly you have the right to
do so. The case is still set for September 8th, you
understand, because you are in custody and I can’t
put it off. But if you want to hire somebody in
the place of Mr. Leahey, certainly you may do so.
APPELLANT: But are you also telling me that I may not proceed
sui juris?
COURT: I am also telling you that you are going to have a
lawyer in this courtroom when you go to trial.
APPELLANT: And that I have no choice in that matter?
COURT: No, sir, you don’t.
APPELLANT: All right. Then at this point in time I choose to
retract the letter that I sent you as well as the
motion to dismiss my attorney.
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brought a Motion Urging Reconsideration of Defendant’s Motion to
Represent Himself at Trial. Specifically, the Government asked the
district court to “reconsider its previous order, to conduct an
extensive colloquy with Mr. Vandergriff about the pitfalls of self
representation, to obtain a knowing and intelligent waiver of
counsel, and to appoint standby counsel in case Mr. Vandergriff
becomes obstructionist [sic] or changes his mind.”
This Motion was heard the day jury selection began in the
present case, and the court participated in extensive colloquy with
the Appellant.3 Ultimately, the trial commenced with Vandergriff
3
The following colloquy occurred between the Appellant and the
court:
THE COURT: Now let me ask you this, Mr. Vandergriff . . .you
indicated to me that you wanted to represent
yourself and I attempted to counsel with you and
told you I didn’t think that was too good of an
idea, and you agreed at that time to allow Mr.
Leahy to proceed to represent you. Since that time
the Federal Government has filed a motion in this
Court asking me to reconsider what I did the last
time, stating it was their belief that the law in
this country is that if one wished to represent
himself in a trial he has that absolute right
within some constraints, as long as we are not, you
know having a big problem in Court and all that
sort of stuff. What I need to know in connection
with that motion, do you want me, Mr. Vandergriff,
to reconsider and let you proceed by yourself or do
you want to go ahead and let’s go on with Mr.
Leahy?
APPELLANT: Okay I want to make this perfectly clear to the
Court, and that is that I do not wish to represent
myself. I wish to be heard alone, and there is a
difference. I only have one counsel and my counsel
is Jesus Christ . . . Sir, I wish to be heard by
myself. I do not wish to represent myself, I do
not wish a lawyer, I wish to be heard by myself.
* * *
APPELLANT: I have the right to be heard by myself. Okay.
Now, that’s what I chose to do. However, this man
was thrust upon me, I was not informed completely.
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represented by counsel.
When I signed, when I signed that thing saying that
I wanted a court appointed attorney, it was never
explained to me that once I took an attorney that I
could never retract that because you told me last
week if I got rid of this guy that you were going
to make me take another person, that I would have
no choice.
THE COURT: I’m not now.
APPELLANT: You are not now?
THE COURT: If you want to get rid of Mr. Leahey, I’m not going
to force another lawyer on you as long as you don’t
misbehave.
APPELLANT: I don’t want to misbehave.
THE COURT: I don’t want you to.
Thereafter, the following exchange took place just prior to
the beginning of trial:
THE COURT: Mr. Vandergriff, I’m going to bring the jury in in
just a moment, but I need to get some sort of a
sense of direction as to your participation in the
trial. If you don’t’ want Mr. Leahy, you don’t
have to have him. I think you probably would be
better off to have him, but I’m not trying to keep
you from representing yourself. But I don’t know
who to turn to when it comes to questioning the
witnesses, whether you want to do the questioning
or you want Mr. Leahy to do it. I don’t know
whether you want to make an opening statement
following the Government’s opening statement in
this case, Mr. Vandergriff. In order to have an
orderly trial I have got to get some sense of
direction sir.
APPELLANT: Well, sir, officially I stand on the motion that I
served this Court in that I want to stand alone.
However, at this point, now that we have already
proceeded to this degree, I’m not ready, I’m not
prepared to do it on my own. But, you know, for the
record, let me state that I did want to assert that
right. However, now since we have no time for me
to prepare, I have no choice but to stay with the
attorney.
THE COURT: How long do you think it would take to prepare?
APPELLANT: There is no telling.
THE COURT: Well, you see, we have got a little problems with
that, Mr. Vandergriff, in that we have speedy trial
problems and I cannot remand you to the custody of
the Marshal, you know, three years to prepare your
case. I can’t do that.
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The Supreme Court recognized in Faretta v. California, 422
U.S. 806 (1975), that the right of self-representation is
guaranteed by the Sixth Amendment. The exercise of this right,
however, is conditioned on the “knowingly and intelligently”
relinquishment of the right to counsel. Chapman v. United States,
553 F.2d 886, 895 (5th Cir. 1977), citing Faretta, 422 U.S. at 835;
Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938). To this end, a
district court should certify that the defendant is aware of the
perils of self-representation, and make sure that the record
reflects the defendant’s voluntary decision. Faretta, 422 U.S. at
835. Essentially, the district court must ensure that the
defendant “‘knows what he is doing and his choice is made with eyes
open.’” Id., quoting Adams v. United States ex rel. McCann, 317
U.S. 269, 279 (1943). In the present case, Vandergriff’s knowing
and intelligent waiver of counsel and assertion of his right to
represent himself was directly and unequivocally communicated to
the district court on three different occasions: At the pretrial
hearing, at the hearing of his attorney’s Motion to Withdraw, and
at the Government’s Motion Urging Reconsideration of Defendant’s
Motion to Represent Himself at Trial.
The nature of the denial of the right of self-representation
is different from other constitutional violations, in that the
harmless error doctrine does not apply to save the district court’s
error. As this court stated in Chapman v. United States, the
defendant’s right to self-representation does not exist to increase
the chance of winning his case, but exists because of the “notion
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that each person is ultimately responsible for choosing his own
fate.” Id. at 891. Therefore, the sole inquiry is not whether
the error of denial was harmful, but rather did the court
wrongfully deny the defendant his right to represent himself at
trial. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8 (1984). See
also Chapman, 553 F.2d at 891-92.
Additionally, this court has consistently held that the right
to self-representation can be timely asserted anytime before jury
is empaneled as long as there is no evidence in the record that
assertion of the right was a tactic to secure delay. Chapman, 553
F.2d at 894. Evidence that the request was designed to achieve
delay can be inferred from the circumstances surrounding the
request, such as a pattern of dilatory conduct by the defendant.
United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989).
In the present case, when Vandergriff asserted his right to
represent himself on the third occasion, the trial judge found that
Vandergriff had knowingly and intelligently waived the right to
counsel and asserted the right to self-representation.
Accordingly, the trial court informed Vandergriff that the could
represent himself. However, when the trial court informed
Vandergriff that the trial would commence immediately and refused
the defendant’s request for time to prepare his case, Vandergriff
acquiesced in allowing the government-appointed counsel to
represent him. Vandergriff pointed out to the court that at his
previous appearance the court had informed him he could not
represent himself and for that reason had made no trial
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preparations. Under these circumstances, we conclude that
Vandergriff did not voluntarily waive his right to self-
representation. In forcing Vandergriff, under these circumstances
where he was not attempting to secure an unwarranted delay, to
accept against his will a government-appointed attorney, the court
deprived him of his constitutional right to conduct his own
defense.
Accordingly, the judgment before us is vacated and the case is
remanded for proceedings not inconsistent with this opinion.
VACATED AND REMANDED
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