United States v. Edward Mesquiti , 854 F.3d 267 ( 2017 )

Case: 16-50034 Document: 00513949566 Page: 1 Date Filed: 04/12/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50034 FILED
April 12, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
EDWARD MESQUITI,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
Before WIENER, DENNIS, and HAYNES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
Edward Mesquiti was charged in an indictment with one count of bank
robbery and aiding and abetting thereof in violation of 18 U.S.C. §§ 2 and
2113(a). Prior to trial, the district court granted Mesquiti’s motion to dismiss
his attorney. The case eventually proceeded to a jury trial, with Mesquiti
representing himself throughout the trial. The jury ultimately found Mesquiti
guilty, and he was sentenced to 151 months of imprisonment. Now represented
by the Federal Public Defender, Mesquiti appeals his conviction, arguing that
the district court deprived him of his constitutional right to counsel by allowing
him to represent himself and that the court reversibly erred in denying a
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continuance. 1 For the following reasons, we affirm the district court’s
judgment.
I
Mesquiti is a follower of the “sovereign citizen” movement, which we
have described as “a loose grouping of litigants, commentators, and tax
protesters who often take the position that they are not subject to state or
federal statutes and proceedings.” United States v. Weast, 811 F.3d 743, 746
n.5 (5th Cir. 2016). An indictment was filed against Mesquiti on April 2, 2014,
charging him with bank robbery and aiding and abetting of same, in violation
of 18 U.S.C. §§ 2 and 2113(a), and he was appointed counsel the next day. On
April 8, 2014, the court granted Mesquiti’s motion to replace his appointed
counsel with a retained attorney, Richard Langlois. On July 30, Langlois
received a letter from Mesquiti, notifying him that his “representation of the
‘Corporate fiction/ens legis Debtor; Edward Mesquiti Jr. . . . is no longer
needed” and asking him to notify the court of his removal as “legal
representative.”
The following day, Mesquiti filed with the court a pro se document titled
“Notice and Declaration of Revocation of Power of Attorney and Notice and
Declaration of Fraud and Notice to Cease and Desist,” in which he said that
“all power of attorney . . . is wholly revoked, extinguished, canceled, [and]
made null and void.” Langlois thereafter moved to withdraw as counsel, and,
on August 20, a hearing on the motion was held before a magistrate judge.
During the hearing, the magistrate judge repeatedly asked Mesquiti if he
wished to represent himself, but Mesquiti was unresponsive, instead making
1 Mesquiti also argues that the he was deprived of an opportunity to prepare and
present a defense, in violation of the Sixth Amendment, because he lacked access to legal
materials, but he concedes that this argument is foreclosed by Degrate v. Godwin, 84 F.3d
768, 769 (5th Cir. 1996), and he raises the issue only to preserve it for possible further review.
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statements consistent with his sovereign citizen ideology and asserting that he
did “not consent to these proceedings.” The magistrate judge concluded that
he could not say that Mesquiti wished to represent himself, and he therefore
appointed the Federal Public Defender to represent Mesquiti after granting
Langlois’s motion to withdraw.
On February 5, 2015, the court conducted a docket call, during which
Mesquiti was uncooperative. After Mesquiti’s appointed counsel, Alfredo
Villarreal, announced that he represented him, Mesquiti declared, “[H]e is not
here for me” and asserted that the court had “no subject matter jurisdiction.”
Both Villarreal and the Government’s attorney expressed doubts about
Mesquiti’s competence to stand trial, and the district court ordered a
competency evaluation. The court subsequently received a thorough report by
a licensed psychologist opining that Mesquiti was competent to stand trial, his
adherence to the sovereign citizen ideology notwithstanding. The report also
noted that, with respect to his need for representation, Mesquiti stated that
“he is not trying to represent himself nor does he need a lawyer because the
need for representation comes after the court establishes it has jurisdiction
over him.” In light of the report’s conclusions, the court found that Mesquiti
was competent to stand trial.
On June 17, 2015, the court held a pretrial hearing during which
Villarreal announced that Mesquiti was ready for trial. After the court
explained to Mesquiti that his attorney stated that he wanted to go to trial,
Mesquiti said, “Your Honor, I haven’t accepted Mr. Villarreal as my attorney.
I don’t consent to him being my attorney. I have never asked him to be my
attorney.” The court construed Mesquiti’s statement as “a motion to withdraw
Villarreal as [his] attorney” and stated, “You have a right to represent yourself.
The motion is granted. Mr. Villarreal will be standby counsel.” The district
court then warned Mesquiti that proceeding pro se was not advisable. The
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court told Mesquiti that it was “generally a very bad idea to proceed pro se,”
that it was “always inadvisable” to do so, and that he “really need[ed] to have
a lawyer.” The district court told Mesquiti that he had been charged with a
bank robbery, in violation of 18 U.S.C. § 2113, and informed him that, if found
guilty, his sentencing guidelines range would be 121 to 151 months but that he
would face up to twenty years of imprisonment. The court also warned
Mesquiti that his jurisdictional arguments could not be continuously
interjected into the trial, as they did not have “any legal merit.” At the
conclusion of the hearing, the court again advised Mesquiti:
Again, I am telling you, it is always a bad idea for defendants to
represent themselves, and so I highly caution you, don’t go this
approach. One hundred twenty-one to 151 months is a long time
in prison and potentially you could be facing up to 20 years. And
so you know what happened that day. You know what the evidence
is the government has against you. Your codefendant, I believe, is
going to be testifying against you, so this is not a good posture you
are in.
When asked if he had anything to say, Mesquiti replied, “I don’t accept Mr.
Villarreal as my lawyer and I don’t consent to these proceedings, sir.” The
court relieved Villarreal from representing Mesquiti and instructed him to
serve as standby counsel, informing Mesquiti that he could change his mind
and ask that Villarreal take over as lead counsel.
On the first day of trial, July 7, 2015, before jury selection began,
Mesquiti stated to the court that he had been “locked up in segregation” and
that he had had “no access to courts, no way to get paper, no way to write.”
The Government’s attorney responded that she had mailed copies of all of the
Government’s filings to Mesquiti at his place of confinement, and she pointed
out that all of the Government’s evidence was available in the courtroom if he
wished to review it. The district court construed Mesquiti’s argument as a
motion to dismiss the indictment and denied that purported motion.
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Later that day, during an afternoon break in the trial proceedings,
Mesquiti made the following statement:
Your Honor, about my Sixth Amendment right to have my own
witnesses, to have my own discovery evidence put in, I mean, I’ve
been held under conditions that don’t allow me to do any of that,
to have — to subpoena witnesses, to have any kind of discovery
added to this trial. I’m sure you can — I have the constitutional
right to defend myself. And without my witnesses, I’m barred from
putting on a defense.
In response, the district court stated that Mesquiti had known that his trial
was scheduled for that day and that he had declined representation by an
attorney and had insisted on representing himself. Mesquiti then asserted
that he had been given discovery just forty-five minutes before the trial began,
to which the district court responded that discovery had been provided to
Mesquiti’s counsel but he had refused to meet with his counsel.
At the close of the Government’s case-in-chief, Mesquiti called no
witnesses, and he rested without putting on any evidence. The jury found
Mesquiti guilty, and the district court ultimately sentenced him to 151 months
of imprisonment. Mesquiti appeals, challenging his conviction.
II
First, we discuss Mesquiti’s contention that the district court deprived
him of his constitutional right to counsel at a critical stage of the proceeding
by allowing him to proceed pro se. Sixth Amendment challenges to the validity
of a waiver of counsel are reviewed de novo. United States v. Jones, 421 F.3d
359, 363 (5th Cir. 2005). “The Sixth Amendment safeguards to an accused who
faces incarceration the right to counsel at all critical stages of the criminal
process.” Iowa v. Tovar, 541 U.S. 77, 80–81 (2004). To determine if the district
court violated Mesquiti’s right to counsel by dismissing counsel and relegating
him to the status of standby counsel, we inquire whether Mesquiti properly
waived his right to counsel. See, e.g., United States v. Virgil, 444 F.3d 447, 454
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(5th Cir. 2006). In the course of this inquiry, we ask whether the defendant in
fact relinquished his right to counsel and whether he did so knowingly and
intelligently. See id. at 453.
A. Mesquiti Relinquished His Right to Counsel
“Where a fundamental constitutional right, such as the right to counsel,
is concerned, courts indulge every reasonable presumption against waiver.”
United States v. Cano, 519 F.3d 512, 517 (5th Cir. 2008) (quoting Burton v.
Collins, 937 F.2d 131, 133 (5th Cir. 1991)). A defendant can waive his right to
counsel implicitly, by his clear conduct, as well as by his express statement.
See, e.g., United States v. Fields, 483 F.3d 313, 350 (5th Cir. 2007). As relevant
here, because “indigent defendants have no right to appointed counsel of their
choice,” we have held that “a defendant’s refusal without good cause to proceed
with able appointed counsel constitutes a voluntary waiver of” the right to
counsel. Id. (alteration omitted) (quoting Richardson v. Lucas, 741 F.2d 753,
757 (5th Cir. 1984)). To constitute waiver, such a refusal must take the form
of “a persistent, unreasonable demand for dismissal of counsel.” United States
v. Moore, 706 F.2d 538, 540 (5th Cir. 1983).
Mesquiti contends that he had not waived his right to counsel at the
pretrial hearing on June 15, 2015, before the court dismissed Villarreal from
representation and instated him as standby counsel. We conclude, however,
that Mesquiti’s actions before and on the day of the hearing constituted waiver
of his right to counsel. Mesquiti acted to terminate his representation by three
different attorneys, retained and appointed. He renounced his last two
attorneys in hearings before two different courts. At no point did Mesquiti
articulate dissatisfaction with his particular counsel, and he never asked the
court for substitute counsel. While it is true that Mesquiti did not expressly
say that he wished to represent himself, he “refus[ed] without good cause to
proceed with able appointed counsel,” Fields, 483 F.3d at 350 (quoting
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Richardson, 741 F.2d at 757), and made “persistent, unreasonable demand[s]
for dismissal of counsel,” Moore, 706 F.2d at 540. Mesquiti’s conduct therefore
constituted a relinquishment of his right to counsel.
B. Mesquiti’s Relinquishment of His Right to Counsel was “Knowing and
Intelligent”
“Waiver of the right to counsel, as of constitutional rights in the criminal
process generally, must be a ‘knowing, intelligent act done with sufficient
awareness of the relevant circumstances.’” Tovar, 541 U.S. at 81 (alteration
omitted) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). In Faretta
v. California, the seminal case explaining the requirements for waiver of
counsel, the Supreme Court mandated that the defendant “be made aware of
the dangers and disadvantages of self-representation, so that the record will
establish that ‘he knows what he is doing and his choice is made with eyes
open.’” 422 U.S. 806, 835 (1975) (quoting Adams v. U.S. ex rel. McCann, 317
U.S. 269, 279 (1942)). However, the Court has not “prescribed any formula or
script to be read to a defendant who states that he elects to proceed without
counsel.” Tovar, 541 U.S. at 88.
We have required district courts to exercise discretion in determining the
precise nature of the warning provided to a defendant seeking to represent
himself, depending on the circumstances of the individual case. E.g., United
States v. Davis, 269 F.3d 514, 519 (5th Cir. 2001). The trial court must consider
various factors, including “the defendant’s age and education and other
background, experience, and conduct.” McQueen v. Blackburn, 755 F.2d 1174,
1177 (5th Cir. 1985) (citation omitted). “The court must ensure that the waiver
is not the result of coercion or mistreatment of the defendant and must be
satisfied that the accused understands the nature of the charges, the
consequences of the proceedings, and the practical meaning of the right he is
waiving.” Id. (citation omitted).
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Although, as explained, the precise nature of appropriate warnings
depends on the particularities of the case, we have generally required trial
courts to provide warnings of substance, including at least a modicum of
specificity. For instance, in United States v. Davis, the defendant was
dissatisfied with his attorney because the attorney refused to ask witnesses
the questions the defendant had prepared. 269 F.3d at 516–17. The district
court confirmed that the defendant wanted to proceed to ask the questions
despite his attorney’s advice that asking the questions was not in his best
interest. The court also asked the defendant if he understood that if the
answers implicated him, “that puts you in an awkward position . . . with the
jury” and that he would not “be able to stand up and throw a temper tantrum
if somebody . . . says something that you believe is provocative.” Id. at 517 n.1.
We concluded on appeal that the trial judge’s warnings against self-
representation, which relied largely on the warnings given by the same counsel
that the defendant no longer trusted, were not sufficient to discharge the trial
court’s duties under Faretta. See Davis, 269 F.3d at 518.
Similarly, in United States v. Jones, “the district court recommended to
[the defendant] that he have an attorney[,] . . . stated that his appointed
counsel was highly qualified,” and asked him if he “fully realized that
representing himself was dangerous to him.” 421 F.3d at 362, 364. On appeal,
we found that “the district court took no steps, except in the most general way,
to insure that Jones was ‘aware of the dangers and disadvantages of self-
representation’” and therefore concluded that the court did not do enough to
protect the defendant’s right to counsel. Id. at 364–65 (quoting United States
v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003)).
Where the record demonstrates that the trial court provided advisories
that were more concrete, we have generally not required those warnings to be
very detailed. For example, in United States v. Joseph, the district court
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recommended several times that the defendant allow counsel to represent him
because they were very good lawyers, and, after the court instructed the
attorneys to serve as standby counsel, it recommended that the defendant
allow counsel to question witnesses, conduct cross-examination, and put on any
evidence on his behalf. 333 F.3d at 590.
We found that this was sufficient to inform the defendant of the dangers
and disadvantages of self-representation. Id. Similarly, in United States v.
Fulton, 131 F. App’x 441, 442–43 (5th Cir. 2005), we approved of the district
court’s warnings where they advised the defendant: (1) that his case was
“complex” and involved “complex issues”; (2) that it was in his best interest to
proceed with appointed counsel; and (3) that the defendant faced a “daunting
task” if he chose to proceed on his own because he was facing a “very capable
prosecutor.”
The warnings that the district court provided to Mesquiti at the June 17
hearing satisfy the requirements of Faretta, as applied by our precedent. As
an initial matter, the district court had all of the necessary information to
assess Mesquiti’s ability to understand its warnings regarding the perils of
self-representation. The court had before it a thorough report concerning
Mesquiti’s competence to stand trial. This report described Mesquiti’s age,
education history, employment history, relationship history, substance use
history, medical history, mental health history, and legal history. The report
noted that Mesquiti was 51 years old, that he dropped out of high school in the
eleventh grade but went on to receive his GED, that he continuously worked
when he was not incarcerated, and that he was a man of average intelligence.
At the June 17 hearing, the district court on several occasions strongly
warned Mesquiti that proceeding pro se was not advisable. The court informed
Mesquiti that, if the jury found him guilty, the applicable sentencing guidelines
range was 121 to 151 months of imprisonment but that he could face up to
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twenty years of imprisonment. The court advised Mesquiti of the nature of the
charges against him. The court also warned Mesquiti that his jurisdictional
arguments could not be continuously interjected into the trial, as they did not
have “any legal merit.” The court further emphasized that the Government
possessed substantial evidence against Mesquiti and that his codefendant was
going to testify against him and thus explained that Mesquiti was “not [in] a
good posture.” In the face of these warnings by the court, Mesquiti stated, “I
don’t accept Mr. Villarreal as my lawyer and I don’t consent to these
proceedings.”
Mesquiti complains that the court did not advise him that he would be
giving up any right to access to legal research and did not warn him of the
practical difficulties of subpoenaing witnesses or procuring defensive evidence
that might be necessary to present a defense. We agree that the court’s
warnings could have been more concrete. Cf. Tovar, 541 U.S. at 89 (“‘At trial
. . . counsel is required to help even the most gifted layman adhere to the rules
of procedure and evidence, comprehend the subtleties of voir dire, examine and
cross-examine witnesses effectively, object to improper prosecution questions,
and much more.’ Warnings of the pitfalls of proceeding to trial without counsel
. . . must be ‘rigorously’ conveyed.” (alterations omitted) (quoting Patterson v.
Illinois, 487 U.S. 285, 298, 299 & n.13 (1988))). 2 But we cannot say that the
district court deprived Mesquiti of his right to counsel by failing to make these
specific advisories.
2 We have previously noted that “[t]he Benchbook for U.S. District Court Judges,
published by the Federal Judicial Center, provides a guide for questions the judge can ask to
convey the disadvantages the defendant will likely suffer if he proceeds pro se.” Jones, 421
F.3d at 363; Davis, 269 F.3d at 519 n.11.
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The court informed Mesquiti of the nature of the charge against him and
the consequences of the proceedings and explained the difficulty of his
particular case to him. Importantly, the court also highlighted that Mesquiti
would not be able to continuously advance his sovereign citizen theories to the
jury, which seemed to have been the primary motivation behind Mesquiti’s
decision to waive his right to counsel. The district court repeatedly and
strongly advised Mesquiti against self-representation in the context of his
particular case, and its warning equaled or exceeded those previously approved
of by this court. See, e.g., Joseph, 333 F.3d at 590. There was no indication
that Mesquiti, a man of average intelligence, did not understand the
difficulties he faced by proceeding without counsel, and we are satisfied that
he “kn[ew] what he [wa]s doing.” See Faretta, 422 U.S. at 835 (quoting
McCann, 317 U.S. at 279). Thus, we find that Mesquiti knowingly and
intelligently relinquished his right to counsel at the June 17 hearing.
Accordingly, we conclude that the district court’s dismissal of Villarreal from
full representation did not deprive Mesquiti of his Sixth Amendment right to
counsel.
III
We now turn to consider Mesquiti’s contention that the district court
reversibly erred in denying a continuance. The Government argues that
Mesquiti never requested a continuance and thus that we should review this
claim by Mesquiti for plain error. Mesquiti concedes that he did not expressly
move for a continuance, but he contends that the district court should have
construed his complaints about his inability to prepare for trial, expressed on
the morning and afternoon of the first day of his trial, as a request for a
continuance. Thus, Mesquiti urges that we review this claim for abuse of
discretion. Because we conclude that Mesquiti fails to establish reversible
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error even under the less demanding abuse-of-discretion standard, we need not
determine the applicable standard of review. 3
Trial judges have “broad discretion” in ruling on motions for a
continuance. United States v. Scott, 48 F.3d 1389, 1393 (5th Cir. 1995). “In
review, we evaluate each situation on a case-by-case basis and normally
consider only the reasons for continuance presented to the trial judge.” Id.(quoting United States v. Cueto, 611 F.2d 1056, 1060 (5th Cir. 1980)). To
establish that denial of such a motion was an abuse of discretion, the appellant
“must show that the denial resulted in ‘specific and compelling or serious
prejudice.’” United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999) (some
internal quotation marks omitted) (quoting United States v. Krout, 66 F.3d
1420, 1436 (5th Cir. 1995)).
Mesquiti notes that he had only three weeks between the hearing at
which his counsel was dismissed from primary representation and the start of
trial, and he contends that he therefore did not have adequate time for trial
preparation. He emphasizes that during this three-week period, the
Government filed its proposed jury instructions, witness list, and exhibit lists,
as well as a notice of its intent to use evidence pursuant to Federal Rule of
Evidence 404(b) and Federal Rule of Evidence 609, and he asserts that he
needed additional time to respond to these filings. However, Mesquiti does not
specifically indicate what response he could have given or how his lack of
response prejudiced his defense. Next, he states that he needed additional
3 Mesquiti makes no argument that we should review this issue de novo because the
district court failed to recognize his motion and did not deny it in the exercise of discretion.
Cf., e.g., FDIC v. Dawson, 4 F.3d 1303, 1308 (5th Cir. 1993) (applying de novo review because
district court denied equitable tolling as a matter of law rather than in exercise of discretion).
Any such argument is therefore forfeited. See, e.g., Jefferson Cmty. Health Care Ctrs., Inc. v.
Jefferson Par. Gov’t, 849 F.3d 615, 626 (5th Cir. 2017) (citing United States v. Jackson, 426
F.3d 301, 304 n.2 (5th Cir. 2005)) (issue not raised in party’s opening brief is generally
forfeited).
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time to request jury instructions to support his defensive theory, but he did not
indicate to the district court that he needed more time for this purpose, and we
therefore do not consider this reason. See Scott, 48 F.3d at 1393. Moreover,
Mesquiti does not state what jury instructions he would have requested or how
their absence prejudiced his case.
Mesquiti also contends that he needed additional time to procure the
attendance of defense witnesses. Yet, he does not indicate what witnesses he
might have called or explain how their testimony would have aided his defense,
and he therefore cannot establish prejudice on this basis. United States v.
Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991) (“In order for an appellant to show
that a continuance was necessary to secure a witness, ‘[he] must show . . . that
substantial favorable testimony would be tendered by the witness, that the
witness [will be] available and willing to testify, and that the denial of a
continuance would materially prejudice [him].’” (quoting United States v.
Uptain, 531 F.2d 1281, 1287 (5th Cir. 1976))). Finally, Mesquiti notes that he
had been held in segregation in the weeks leading up to his trial and asserts
that, while in segregation, he lacked adequate resources to review the
discovery. He further asserts that his receipt of discovery shortly before the
start of trial was inadequate to protect his rights. However, here, too, Mesquiti
does not specifically indicate how the late receipt of discovery prejudiced him,
and, as the district court noted, Mesquiti’s standby counsel had received the
discovery provided by the Government well before trial, and Mesquiti could
have reviewed the discovery with him.
Because Mesquiti fails to make the requisite showing of prejudice
resulting from the denial of a continuance, he cannot establish an abuse of
discretion by the district court. See Barnett, 197 F.3d at 144.
IV
For these reasons, we AFFIRM the district court’s judgment.
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