United States v. John Norris , 698 F. App'x 849 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2698
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
John Lee Norris
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 12, 2017
Filed: June 23, 2017
[Unpublished]
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
John Lee Norris pleaded guilty to one count of conspiracy to commit mail fraud
and wire fraud, in violation of 18 U.S.C. § 1349, and one count of mail fraud, in
violation of 18 U.S.C. § 1341. The district court1 sentenced Norris to 108 months’
imprisonment and some $1 million in restitution. After the sentence was vacated on
appeal, the district court resentenced Norris, imposing the same sentence and
essentially the same amount in restitution. Norris appeals, arguing that the district
court deprived him of his Sixth Amendment right to counsel at the resentencing
hearing by failing to ensure that his waiver of the right to counsel at the resentencing
hearing was valid. We affirm.
I. Background
After Norris’s initial appearance, the magistrate judge appointed counsel to
represent him, including assistant federal defender Anita Burns, who was to represent
Norris at trial. During a March 11, 2014, pretrial conference, Norris indicated that
he wished to proceed pro se. The magistrate judge warned him that doing so might
disadvantage him:
[B]efore the Court can allow you to go pro se we’re going to have to
make a lot of inquiry, and I’m going to want you to think about it.
Because if you go pro se, the Court can’t tell you what to do. And if you
don’t have any legal training, if you aren’t familiar with the Federal
Rules of Evidence, the Federal Rules of Criminal Procedure, you are
going to be at a distinct disadvantage when you go to trial. The fact that
you represent yourself isn’t going to keep the District Judge who tries
the case from enforcing those particular rules. So, even if you have
evidence that might be relevant and admissible, if you don’t know under
the federal rules how to present it and how to get it in, it’s not going to
come in in your case. And I can just assure you this[,] that if you do
represent yourself and, you know, don’t follow the rules, you’re not
going to have a very good shot if there is an adverse result and you want
to take an appeal. Because if you haven’t preserved your evidence or
1
The Honorable Brian C. Wimes, United States District Judge for the Western
and Eastern Districts of Missouri.
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presented it correctly, then you’re also going to have difficulty with any
kind of appeal, whether or not you’re represented by counsel at that
time.
....
So, I’m going to want to make extensive inquiry and to, you know,
really encourage you to think about it.
After Norris repeated that he wanted to proceed pro se, the magistrate judge
inquired into his level of education, including whether he had studied law; whether
he had previously represented himself in a criminal matter; whether he understood the
penalties he faced if convicted; whether he was familiar with the United States
Sentencing Guidelines (Guidelines); whether he was familiar with the Federal Rules
of Evidence and Criminal Procedure; whether he understood that he would be bound
by those rules at trial and would have to make proper objections to preserve issues for
appeal; and whether he understood that the rules would not be relaxed for him and
that the court could not offer him legal advice. The magistrate judge advised Norris
that proceeding pro se would put him at a “significant disadvantage” and would be
“very unwise” because he lacked a lawyer’s training and knowledge of criminal
procedure. After Norris indicated that he understood these warnings and that his
choice to proceed pro se was voluntary, the magistrate judge allowed him to proceed
pro se, with Burns serving as standby counsel.
At a May 28, 2014, hearing before the district court, Norris pleaded guilty as
described above. Before accepting his plea, the court confirmed that Norris
understood his right to counsel, referring to the magistrate judge’s earlier warning.
Norris explained his choice to proceed pro se:
[W]hen I look at it we have the federal government that has the
attorneys that represent us, while the federal government is actually
persecuting [sic] us at the same time. And I don’t see exactly how that
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is fair. . . . My thing that I looked at was if the situation took place on
one side, even changing out representation or otherwise, the same
format I did not believe would make a difference.
Pursuant to his plea agreement, Norris waived his right to appeal his sentence except
on claims of ineffective assistance of counsel, prosecutorial misconduct, or an illegal
sentence.
Burns represented Norris on his first appeal, during which Norris argued that
the government had breached the plea agreement by suggesting that an upward
departure from the Guidelines range “would be very appropriate” and opposing an
offense-level reduction for acceptance of responsibility. The government did not
concede that it had breached the agreement, but nonetheless moved to vacate the
sentence and remand for resentencing to cure “any breach of the plea agreement that
occurred.” This court granted the government’s motion.
Prior to resentencing, Norris filed a pro se motion requesting the appointment
of counsel. At the resentencing hearing, Norris clarified that he wanted the court to
appoint an attorney other than Burns to represent him. He stated that Burns was
“compromised” and had a “dual agenda,” again suggesting that an attorney who was
paid by the federal government, and who had taken an oath to uphold the federal
Constitution upon registration with the bar association, could not adequately
represent him. Norris agreed with the court’s characterization of his argument as, “it
doesn’t matter who would be appointed as counsel, . . . it is stacked against [him]”
because counsel would be “paid by the very people that are prosecuting [him].” The
court denied the motion, noting that Norris understood “the disadvantages that occur
when one represents themself.” The court reminded Norris of some of the dangers
of proceeding pro se:
You were told of your right and what you can do by Judge Hays. That
if you represent yourself, we have a saying, you have a fool for an
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attorney. You don’t know procedures. At the time you didn’t know the
rules of evidence or . . . procedure as it related to the trial or trial
strategy or rules of court. Those are the things that [disadvantage you].
Notwithstanding that, you chose to go pro se.
Norris proceeded pro se and was resentenced as set forth above.
II. Discussion
The Sixth Amendment provides a criminal defendant both the right to counsel
and the right to self-representation. Faretta v. California, 422 U.S. 806, 807 (1975).
“The Sixth Amendment protects a defendant’s right to counsel at all critical stages in
the criminal justice process.” Fiorito v. United States, 821 F.3d 999, 1003 (8th Cir.
2016) (internal quotation marks omitted) (quoting Maine v. Moulton, 474 U.S. 159,
170 (1985)), pet. for cert. filed, (U.S. Dec. 8, 2016) (No. 16-8545). “If the defendant
waives the right to counsel, the waiver must be voluntary, intelligent, and knowing.”
United States v. Armstrong, 554 F.3d 1159, 1165 (8th Cir. 2009). “This standard is
met if the trial court specifically informed the defendant of the dangers and
disadvantages of self-representation, or if the entire record evidences the defendant
knew and understood the disadvantages.” Id. “When analyzing the entire record for
a valid waiver, we look to ‘the background, experience, and conduct of the accused
. . . [including] the defendant’s past contacts with the criminal justice system and his
performance at the proceeding at which he represented himself.’” Id. (alterations in
Armstrong) (quoting Ferguson v. Bruton, 217 F.3d 983, 985 (8th Cir. 2000) (per
curiam)). “We review de novo a district court’s decision to allow a defendant to
proceed pro se.” United States v. Miller, 728 F.3d 768, 773 (8th Cir. 2013).2
2
The government argues that our review is for plain error because Norris did
not object to the denial of his motion for appointment of counsel. Norris argues that
plain error review should not apply. Because we would uphold the judgment even
under de novo review, we need not decide this question.
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Norris argues that the district court deprived him of his right to counsel because
it did not conduct a renewed Faretta inquiry during the resentencing hearing. He does
not challenge the sufficiency of the initial Faretta warning during the pretrial
conference, but argues that a new inquiry was required in light of changed
circumstances—namely, that Norris had been represented by counsel on appeal and
that he requested new counsel prior to resentencing. See United States v. Hantzis,
625 F.3d 575, 580-81 (9th Cir. 2010) (“A properly conducted Faretta colloquy need
not be renewed in subsequent proceedings unless intervening events substantially
change the circumstances existing at the time of the initial colloquy.”).
We conclude that Norris voluntarily waived his right to counsel at his
resentencing when he decided to proceed pro se after the district court denied his
request for an attorney not paid by the federal government and possibly not belonging
to any bar association. See United States v. Washington, 596 F.3d 926, 938 (8th Cir.
2010) (“[W]hile the ‘Hobson’s choice’ between proceeding to trial with an
unprepared counsel or no counsel at all may violate the right to counsel, there is no
constitutional difficulty where the defendant is provided the real alternative of
choosing between adequate representation and self-representation.” (quoting United
States v. Ladoucer, 573 F.3d 628, 634 (8th Cir. 2009))); see also United States v.
Conklin, 835 F.3d 800, 804-05 (8th Cir. 2016) (citing United States v. Sanchez-
Garcia, 685 F.3d 745, 750-52 (8th Cir. 2012)) (holding that defendant’s refusal to
choose between court-appointed counsel and self-representation constituted a choice
to proceed pro se).
The district court adequately warned Norris about the dangers of self-
representation, thereby ensuring that the waiver of his right to counsel was knowing
and intelligent. The initial Faretta colloquy was thorough. The district court again
warned Norris during his change of plea hearing. Thereafter, during the resentencing
hearing, the district court reiterated that Norris’s lack of knowledge of procedural and
evidentiary rules would place him at a disadvantage if he decided to proceed pro se.
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When the court’s warning during the resentencing hearing is considered in light of
the earlier warnings given to Norris, it is clear that Norris understood that he had a
right to counsel and that he would be disadvantaged if he proceeded pro se. See
United States v. Vann, 776 F.3d 746, 764 (10th Cir. 2015) (holding that a brief
warning about self-representation prior to sentencing was sufficient in light of a
thorough colloquy prior to trial three months earlier); Miller, 728 F.3d at 773 (holding
that the district court did not err in not conducting a third Faretta hearing); United
States v. McBride, 362 F.3d 360, 366-68 (6th Cir. 2004) (holding that the district
court committed no plain error in not performing a second colloquy at sentencing
where defendant waived the right to counsel at trial and forbade standby counsel from
speaking on his behalf at sentencing). That Norris requested a different counsel and
that he had been represented by counsel on appeal did not indicate that he no longer
understood his right to counsel and the disadvantages of self-representation. See
Hantzis, 625 F.3d at 581 (“The essential inquiry is whether circumstances have
sufficiently changed since the date of the Faretta inquiry that the defendant can no
longer be considered to have knowingly and intelligently waived the right to
counsel.”).
Citing United States v. Proctor, 166 F.3d 396 (1st Cir. 1999), Norris argues that
his request for counsel “re-introduced doubt into the Sixth Amendment calculus,
obligating further inquiry.” Appellant’s Br. 22 (quoting Proctor, 166 F.3d at 405).
In Proctor, however, the scope of the defendant’s request for counsel was unclear.
Here, the scope of Norris’s request for the appointment of counsel was clear—new
counsel that, at a minimum, would not be paid by the federal government—and thus
did not require further inquiry by the district court.
In light of Norris’s valid waiver of his right to counsel, we need not consider
whether the plea agreement appeal waiver prohibited an appeal on Sixth Amendment
grounds. We find no merit in the arguments raised in Norris’s supplemental pro se
brief.
The judgment is affirmed.
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