United States v. Otis Tate , 621 F. App'x 857 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 7, 2015
Decided October 27, 2015
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15-1186
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:14-CR-33-001
OTIS TATE,
Defendant-Appellant. Robert L. Miller,
Judge.
ORDER
Otis Tate fired his court-appointed attorney on the morning that his criminal trial
began. He then exercised his right to represent himself, see Faretta v. California, 422 U.S.
806, 834 (1975), and was convicted on all charges. Now with counsel, Tate appeals his
convictions, arguing that his waiver of counsel was invalid. The district court correctly
concluded that Tate knowingly and intelligently waived his right to counsel, so we
affirm the judgment.
Tate was charged with possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and
possessing a stolen firearm, id. § 922(j). The district court appointed attorney
David Wemhoff to represent Tate. On the first morning of trial, Wemhoff moved to
No. 15-1186 Page 2
withdraw, citing unstated “professional considerations.” When asked to comment, Tate
conjectured that his lawyer and the prosecutor were in cahoots against him. Tate also
said that he and Wemhoff disagreed about defense strategies, namely, Tate wanted
counsel to impeach government witnesses with affidavits that Tate personally had
obtained and to cross-examine witnesses about a missing surveillance recording.
The government objected to a continuance due to concerns of witness tampering
and logistics. At least one witness had told the government that Tate asked him not to
testify. (Unbeknownst to the government or court at the time, Tate had convinced some
witnesses to sign false affidavits and attempted to prevent others from testifying.) To
minimize the risk of tampering or intimidation, the government had waited until three
days before trial to disclose the identity of cooperating witnesses but now that
information was out in the open. The government was also concerned about the logistics
of transporting prisoner witnesses.
The district court refused to appoint substitute counsel, reasoning that a different
attorney might likewise disagree with Tate’s proposed strategies. The court denied a
continuance due to the government’s concerns and the waiting jury pool. The court gave
Tate two options—keep Wemhoff or represent himself—and added that, either way, the
trial was going forward as scheduled.
When Tate insisted on representing himself, the court asked about his decision.
Tate said he had attended school through the eleventh grade and later obtained a GED.
He had “been in” three state-court trials, but he was not familiar with the federal rules of
evidence or criminal procedure. The district court warned Tate that he would have to
follow the rules of evidence and procedure, and also question witnesses. And the
prosecutor would have an advantage, the court continued, because he has a college
degree, a law degree, 20 years’ experience in law, and familiarity with the rules of
evidence and procedure. The court warned Tate that the “deck is stacked” against lay
persons representing themselves.
Tate stood by his decision, though the court appointed Wemhoff as standby
counsel. During the first day of trial, the judge confirmed three times—after voir dire,
before the lunch recess, and during the afternoon—that Tate still wanted to represent
himself.
No. 15-1186 Page 3
Tate relented the next day after the jury had found him guilty and accepted
Wemhoff as counsel for the sentencing phase. The district court sentenced Tate to 120
months’ imprisonment and 3 years’ supervised release.
Tate argues that the district court’s inquiry was too cursory to satisfy the
minimum requirements necessary for a valid waiver of counsel. Tate’s very premise is
flawed because the absence of “a full inquiry” is not dispositive; we look to the record as
a whole to determine whether he in fact made a knowing and informed waiver of
counsel. United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005); see United States v. Johnson,
534 F.3d 690, 693 (7th Cir. 2008). To determine if the waiver was knowing and intelligent,
we consider four factors: (1) the extent of the district court’s inquiry into Tate’s decision
to represent himself, (2) other indicia in the record that Tate understood the dangers and
disadvantages of self-representation, (3) Tate’s background and experience, and (4) the
context of Tate’s choice to represent himself. See United States v. Alden, 527 F.3d 653, 660
(7th Cir. 2008); Todd, 424 F.3d at 530.
Tate concedes that the district court conducted a formal hearing into his decision.
But he contends that the court’s inquiries did not establish that he understood the
dangers and disadvantages of self-representation. The record shows otherwise. Tate
acknowledged that he did not know the federal rules of evidence or procedure and that
he must question witnesses in compliance with the rules. He heard that his background
did not rival the prosecutor’s extensive experience. And yet he chose to represent
himself even after conceding this imbalance of credentials. See United States v. Avery, 208
F.3d 597, 602 (7th Cir. 2000). His lack of qualifications to represent himself is irrelevant to
whether that choice was knowing and intelligent. See Godinez v. Moran, 509 U.S. 389, 399–
400 (1993); Faretta, 422 U.S. at 835–36.
Tate’s background and experience also weigh in favor of the district court’s
finding of a knowing and intelligent waiver. See United States v. Sandles, 23 F.3d 1121,
1126 (7th Cir. 1994). The judge could observe Tate’s approximate age, and he elicited that
Tate had obtained a GED. See Todd, 424 F.3d at 533. Tate was familiar with the charges;
he had stipulated to several elements of those charges in earlier proceedings. And he
was no stranger to the legal system, having been in three prior trials. See United States v.
Moya-Gomez, 860 F.2d 706, 736 (7th Cir. 1988). Three trials suggests enough familiarity
with a courtroom and trial procedures that Tate could appreciate the risks of navigating
a trial without counsel. See Todd, 424 F.3d at 533; United States v. Egwaoje, 335 F.3d 579,
585–86 (7th Cir. 2003). His strategy and performance at trial affirms his familiarity with
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the courtroom; he subpoenaed a witness, introduced exhibits, cross-examined witnesses,
and tried to impeach the credibility of government witnesses. See Todd, 424 F.3d at 533.
The context of Tate’s waiver leaves little doubt that he waived counsel knowingly
and intelligently. He was not “forced” to represent himself: His waiver of counsel was a
tactical decision so that he could pursue his own defense strategy of impeaching
witnesses with their affidavits. See United States v. Volpentesta, 727 F.3d 666, 678 (7th Cir.
2013); United States v. Bell, 901 F.2d 574, 579 (7th Cir. 1990). And the district court offered
him standby counsel and multiple opportunities to change his mind after wading into
the thick of trial.
The district court had good reason to refuse to appoint a new attorney or to
continue the trial. Tate had accepted appointed counsel’s representation for four months
without complaint and delayed until the morning of trial to voice dissatisfaction and
request substitute counsel. See Volpentesta, 727 F.3d at 676; Alden, 527 F.3d at 660; United
States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988). Concerns of witness tampering and
scheduling logistics weighed against a continuance. See Moya-Gomez, 860 F.3d at 737.
The record as a whole supports the district court’s conclusion that Tate waived
his right to counsel knowingly and intelligently. We affirm the judgment.
AFFIRMED.