United States v. Todd Engel ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10293
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00046-
GMN-PAL-15
TODD C. ENGEL,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted May 29, 2020
Las Vegas, Nevada
Filed August 6, 2020
Before: William A. Fletcher, Jay S. Bybee,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Bybee
2 UNITED STATES V. ENGEL
SUMMARY*
Criminal Law
The panel vacated Todd Engel’s conviction for
obstruction of justice and interstate travel in aid of extortion,
and remanded for a new trial, in a case in which the district
court terminated Engel’s right to represent himself during his
trial and appointed standby counsel to represent him instead.
Because the result is the same under either standard, the
panel did not resolve whether de novo or abuse-of-discretion
review applies to a defendant’s claim on direct criminal
appeal that his Sixth Amendment right to self-representation
was violated.
The panel held that the facts do not support the
termination of Engel’s right to represent himself because
Engel was not defiant and did not engage in blatantly
outrageous conduct, such as threatening a juror or taunting
the district judge; to the contrary, he merely asked a question
prejudicial to the government. The panel observed that a
prior court order was not so unambiguous such that Engel’s
conduct clearly violated it. The panel wrote that even if
Engel did violate that order, that is insufficient to justify
terminating his right to represent himself because a single
instance of disobedience that is unaccompanied by open
defiance or disruption does not justify termination of the
constitutional right to self-representation without prior
warning.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ENGEL 3
The panel wrote that the violation was not cured by the
fact that the termination of Engel’s right to represent himself
was only for a limited time, as Engel was precluded from
cross-examining government witnesses, violating the Sixth
Amendment. The panel wrote that other instances the
government points to do not demonstrate that Engel’s conduct
was disruptive. The panel wrote that even if cases addressing
Batson challenges or claims of juror bias are apposite and
appropriate deference is given to the district court’s
observations of Engel’s body language and demeanor, the
record does not establish that Engel’s conduct was
sufficiently obstructive or disruptive.
Because a violation of a defendant’s Sixth Amendment
right to self-representation is structural error, the panel
vacated the conviction and remanded for a new trial.
COUNSEL
Warren Markowitz (argued), The Markowitz Law Firm, Las
Vegas, Nevada, for Defendants-Appellants.
Adam Flake (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney; United States Attorney’s Office,
Reno, Nevada; for Plaintiff-Appellee.
Roger I. Roots, Livingston, Montana, for Amici Curiae Idaho
Political Prisoner Foundation and Read 3%ers of Idaho.
4 UNITED STATES V. ENGEL
OPINION
BYBEE, Circuit Judge:
A jury convicted Appellant Todd Engel of obstruction of
justice and interstate travel in aid of extortion. He contends
that the district court violated the Sixth Amendment during
his trial when the court terminated his right to represent
himself and appointed standby counsel to represent him
instead. We hold that Engel’s conduct was not sufficiently
disruptive to justify termination of his right to self-
representation. Because this is a structural error, we vacate
Engel’s conviction and remand for a new trial.
I. BACKGROUND
Engel’s criminal conviction stems from his involvement
in an armed standoff between agents of the Bureau of Land
Management (BLM) and a group of private militia members
rallied behind Nevadan Cliven Bundy.1 In early April 2014,
Engel traveled from his home in Idaho to Bunkerville,
Nevada, to impede a BLM operation. When Engel and the
other militia members confronted the BLM agents, Engel was
holding an AR-15, wearing combat gear, and located on a
bridge overlooking BLM’s position. Fortunately, no shots
were ever fired, and the BLM agents eventually retreated.
Engel then became a target of federal criminal
prosecution. In March 2016, a grand jury returned a
1
For a more detailed account of the facts leading up to the
confrontation between BLM and Bundy’s group, we refer the reader to our
opinion in United States v. Bundy, No. 18-10287, filed contemporaneously
with this opinion.
UNITED STATES V. ENGEL 5
superseding indictment against nineteen defendants. Engel
was named in eleven counts. The district court severed the
defendants’ trials into three tiers, placed Engel in Tier 3 (the
tier containing the defendants alleged to be least culpable),
and ordered those defendants to be tried first.
At the commencement of his trial, Engel asked to
represent himself. After conducting a Faretta hearing,2 the
district court granted his request, but appointed standby
counsel to be used if necessary. Engel represented himself
during the majority of the trial.
That changed on the twenty-first day of trial. While
Engel was cross-examining a government witness, the
following exchange occurred:
Q. Was Dan Love the special agent in charge
of this operation?
A. Yes, he was. He was an incident
commander.
Q. And in any video or audio do—have you
seen anywhere where I had any discussions
with him?
A. No.
[GOVERNMENT COUNSEL]: Again,
found—well—again, foundation if we’re
talking about which video and audio.
2
See Faretta v. California, 422 U.S. 806 (1975).
6 UNITED STATES V. ENGEL
THE COURT: He’s answered the question.
BY PRO SE ENGEL:
Q. Isn’t it true that Dan Love’s under
criminal investigation for—
[GOVERNMENT COUNSEL]: Objection,
Your Honor.
THE COURT: Mr. Engel . . .
[GOVERNMENT COUNSEL]: Move to
strike.
THE COURT: The jury will disregard Mr.
Engel’s—
PRO SE ENGEL: No further questions.
To put this incident in context, Dan Love was the BLM
agent in charge of the impoundment effort. After the events
near the Bundy Ranch, a government report was issued that
detailed several breaches of protocol and abuses of power
that Love committed during events having nothing to do with
Bundy or Engel. Although the report said nothing about
Love’s conduct during the confrontation with BLM agents in
April 2014, Engel and his co-defendants hoped to get this
information before the jury to cast BLM in a negative light.
But the district court denied the defendants’ motion to compel
Love’s attendance as a witness, finding that questioning Love
about the report would be irrelevant. Thus, through the
question he asked, Engel presumably sought to introduce the
jury to the evidence underlying the government report
UNITED STATES V. ENGEL 7
regarding Love’s misconduct, even though Love was not
testifying. Further, no criminal investigation of Love was
ever initiated, so Engel’s question about whether Love was
under criminal investigation implied a false premise.
After the district court excused the jury following Engel’s
question, the government renewed its objection. The
government argued that Engel “should be sanctioned for it
and his pro se status should be revoked.”
In response, Engel was calm and apologetic. He
explained that he asked the question because Love had
“sworn a Grand Jury testimony against me” and Engel was
frustrated that he was “not even going to be able to talk to
[Love].” But he concluded his explanation by saying, “I
apologize for the question” and asked that he be allowed to
continue representing himself.
The district court ultimately agreed with the government.
The court found that Engel’s question was “improper,” and
that Engel “knew very well that that question could not be
asked.” Accordingly, the district court revoked Engel’s right
to represent himself, appointing standby counsel—John
George—to represent Engel “for the remainder of the day.”
When George objected, arguing that Engel had “done a fairly
remarkable job” representing himself thus far and that a less
drastic sanction was appropriate, the district court disagreed,
finding that Engel’s “intentional[]” decision to ask the
question “indicated that he’s not going . . . to follow my court
order.” The court also noted that Engel “was very smug
about it afterwards when he went back and sat down, very
proud of himself for sliding it in.” Ultimately, the court was
unwilling “to risk any more that [Engel was] going to say
something in front of the jury that is not permitted and that
8 UNITED STATES V. ENGEL
would potentially cause me to call a mistrial.” After hearing
the court’s decision, Engel simply stated, “Okay. I’m sorry.”
George represented Engel the remainder of the twenty-
first day of trial. During the proceedings, George cross-
examined several more government witnesses on Engel’s
behalf. As the trial was drawing to a close, the district court
allowed Engel to represent himself again for the purposes of
closing argument.
Following trial, the jury convicted Engel on two counts:
Obstruction of the Due Administration of Justice in violation
of 18 U.S.C. §§ 1503 & 2, and Interstate Travel in Aid of
Extortion in violation of 18 U.S.C. §§ 1952(a)(2) & 2. The
district court sentenced Engel to 168 months’ imprisonment
and ordered him to pay $1,636,790.33 in restitution. An
amended judgment against Engel was entered on
September 24, 2018, and this appeal followed.3
II. DISCUSSION
A. Standard of Review
We have never definitively articulated the standard of
review that applies to a defendant’s claim on direct appeal of
a criminal conviction that his Sixth Amendment right to self-
representation was violated. Engel argues that we should
apply de novo review. The Second, Third, Fifth, Eighth, and
Tenth Circuits have taken this position. See United States v.
Hausa, 922 F.3d 129, 134 (2d Cir. 2019) (per curiam); United
States v. Weast, 811 F.3d 743, 748 (5th Cir. 2016); United
3
The district court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
UNITED STATES V. ENGEL 9
States v. Mosley, 607 F.3d 555, 558 (8th Cir. 2010); United
States v. Smith, 413 F.3d 1253, 1279 (10th Cir. 2005); United
States v. Peppers, 302 F.3d 120, 127 (3d Cir. 2002)
(employing “plenary review”). And at least one of our prior
cases implicitly supports this position. See United States v.
Flewitt, 874 F.2d 669, 676 (9th Cir. 1989) (holding that “the
district court erred by not allowing the defendants to proceed
pro se at trial” (emphasis added)). The government contends
that we should apply an abuse-of-discretion standard because
the termination of a defendant’s right to self-representation
implicates a district court’s management of the courtroom.
The Seventh Circuit has taken this position. See United
States v. Brock, 159 F.3d 1077, 1079 (7th Cir. 1998).
Because we think the result in this case is the same under
either standard, we need not resolve this split in authority.
See United States v. Smith, 780 F.2d 810, 811 (9th Cir. 1986)
(declining to clarify the correct standard of review because
the outcome would be the same under any standard).
B. Termination of Engel’s Right to Represent Himself
The Sixth Amendment grants a criminal defendant
“personally the right to make his defense.” Faretta, 422 U.S.
at 819. This right guarantees a defendant “actual control over
the case he chooses to present to the jury,” and it “exists to
affirm the accused’s individual dignity and autonomy.”
McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). As the
Supreme Court has recognized, the right to self-representation
has a longstanding historical pedigree, having been imported
by the Framers from English legal practice. See Faretta,
422 U.S. at 821–32. Although the Sixth Amendment does not
explicitly articulate a right to self-representation, the right is
implied by the Sixth Amendment’s language. Under the
Amendment, “[i]t is the accused, not counsel, who must be
10 UNITED STATES V. ENGEL
‘informed of the nature and cause of the accusation,’ who
must be ‘confronted with the witnesses against him,’ and who
must be accorded ‘compulsory process for obtaining
witnesses in his favor.’” Id. at 819. In short, “[t]he right to
defend is given directly to the accused; for it is he who suffers
the consequences if the defense fails.” Id. at 819–20.
Even so, a defendant’s right to self-representation “is not
absolute.” United States v. Johnson, 610 F.3d 1138, 1144
(9th Cir. 2010). A district court “may terminate self-
representation by a defendant who deliberately engages in
serious and obstructionist misconduct,” Faretta, 422 U.S.
at 834 n.46, or who is unable or unwilling “to abide by rules
of procedure and courtroom protocol,” Wiggins, 465 U.S.
at 173.
Several cases illustrate this principle at work. For
example, the right to self-representation may not be
terminated even though a defendant “file[s] numerous
nonsensical pleadings, [is] uncooperative at times,” insists
“on wearing [] prison garb in front of the jury,” and
confusingly tells the jury that “he want[s] the jury to ‘enter a
guilty plea’” during opening statements. Johnson, 610 F.3d
at 1143–44. Similarly, a defendant’s self-representation
cannot be revoked merely because the defendant lacks
familiarity “with the rules of evidence or the specifics of
criminal procedure.” United States v. Lopez-Osuna, 242 F.3d
1191, 1200 (9th Cir. 2000); see also Flewitt, 874 F.2d
at 674–75 (holding that a defendant does not forfeit the right
to represent himself by failing “to prepare properly for trial”
or filing “continual motions” that are largely irrelevant). On
the other hand, the right to self-representation can be
terminated when a defendant engages in “heated
discussion[s]” with the judge, threatens a juror such that the
UNITED STATES V. ENGEL 11
juror must be dismissed, and tells the jury something that the
district court specifically ordered him not to disclose. United
States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004); see also
Badger v. Cardwell, 587 F.2d 968, 971–73 (9th Cir. 1978)
(affirming the removal of a pro se defendant from the
courtroom after he engaged in “an increasingly heated
dialogue” with the judge, “raised a clenched fist” at the judge,
and “taunted the court to expel him”).
When viewed in comparison to these cases, the facts here
do not support the district court’s termination of Engel’s right
to represent himself. Unlike the defendants in Mack and
Badger, Engel was not defiant and did not engage in blatantly
outrageous conduct, such as threatening a juror or taunting
the district judge. To the contrary, Engel merely asked a
question prejudicial to the government. When the
government objected, Engel remained calm and ultimately
acquiesced in the court’s decision to revoke his right to self-
representation. He was never removed from the courtroom,
nor did he need to be removed.
This conclusion is not undermined by the district court’s
suggestion that Engel had disobeyed a “prior court order” by
asking whether Love was under criminal investigation. A
defendant may forfeit the right to represent himself if he
“fail[s] to obey the rulings of the court.” Flewitt, 874 F.2d
at 673; see also Wiggins, 465 U.S. at 173 (noting that a self-
represented defendant must be “able and willing to abide by
rules of procedure and court protocol”). But it is not clear
that Engel did violate a court order. The order to which the
district court appears to be referring is an oral ruling denying
a motion to compel Love to appear as a witness because
questioning him about the events detailed in the report would
be irrelevant. In that oral ruling, the court did not specifically
12 UNITED STATES V. ENGEL
address whether other witnesses could be asked about the
investigation of Love. Perhaps it was implied that such
questions should not be asked, but the order is not so
unambiguous such that Engel’s conduct clearly violated it.
And even if Engel did violate that single order, that is
insufficient to justify terminating his right to represent
himself. Termination may be appropriate when the defendant
has engaged in “severely disruptive behavior.” Lopez-Osuna,
242 F.3d at 1200. Prior to this moment on the twenty-first
day of trial, Engel appears to have complied with all the
court’s orders. Indeed, the district court never previously had
occasion to reprimand Engel for disobedience or threaten to
revoke his right to represent himself. Had Engel repeatedly
violated the court’s orders, that might be sufficiently
disruptive to revoke his pro se status. But a single instance of
disobedience that is unaccompanied by open defiance or
disruption does not justify the termination of Engel’s
constitutional right to self-representation without prior
warning. Engel’s single question appears no more disruptive
or obstructive than questions sometimes asked by counsel, to
which opposing counsel would object. Had Engel’s own
counsel asked a similar question, the district court would have
sustained the objection and, most likely, admonished counsel.
As a result, the district court’s action violated Engel’s Sixth
Amendment right.
This violation was not cured by the fact that the
termination of Engel’s right to represent himself was only for
a limited time. The Sixth Amendment right to self-
representation “applies at all critical stages” of a criminal
prosecution. United States v. Rice, 776 F.3d 1021, 1024 (9th
Cir. 2015). George, the standby counsel appointed to
represent Engel, cross-examined several of the government’s
UNITED STATES V. ENGEL 13
witnesses. The cross-examination of the prosecution’s
witnesses at trial is clearly a critical stage. See United States
v. Yamashiro, 788 F.3d 1231, 1234–35 (9th Cir. 2015) (“A
critical stage is any stage of a criminal proceeding where
substantial rights of a criminal accused may be affected.”
(internal quotation marks omitted)). Thus, even though the
district court reinstated Engel’s right to represent himself
before closing arguments, Engel was precluded from cross-
examining government witnesses, violating the Sixth
Amendment.
The government makes two final arguments for why no
constitutional violation occurred. First, the government
contends that revocation was proper because the
objectionable question Engel asked was merely the latest in
a long line of objectionable questions he posed during trial.
But none of the instances the government points to
demonstrates that Engel’s conduct was disruptive. Indeed,
when the court sustained objections to Engel’s questions,
Engel would either move on or attempt to rephrase the
question. Engel never challenged the judge’s rulings or
obstinately persisted in a line of questioning after being
ordered not to do so. If anything, the objectionable questions
previously asked by Engel show only that Engel lacked
familiarity “with the rules of evidence or the specifics of
criminal procedure,” which does not support the termination
of his right to self-representation. See Lopez-Osuna, 242 F.3d
at 1200.
Second, the government argues that this Court should
defer to the district court’s decision because it was based, at
least in part, on “its observations of [Engel’s] body language
and demeanor.” To support this argument, the government
relies on cases addressing Batson challenges or claims of
14 UNITED STATES V. ENGEL
juror bias. Even assuming those cases are apposite and
appropriate deference is given to the district court, the record
simply does not establish that Engel’s conduct was
sufficiently obstructionist or disruptive. Engel’s “smug” look
suggesting that he was “very proud of himself for sliding it
in” is, without more, inadequate cause for depriving Engel of
his Faretta rights. We are aware of no case where we have
upheld the termination of a defendant’s right to self-
representation for conduct as tame as Engel’s. We decline to
do so here.
We are sympathetic to the situation the district court
faced. The risk of declaring a mistrial after twenty-one days
of trial in a high-profile case with six co-defendants is a risk
that ought to be avoided. But the Sixth Amendment
guarantees a defendant’s right to represent himself. And that
right can be revoked only when the defendant exhibits clearly
defiant or obstructionist misconduct. Engel’s conduct here
falls far short of that standard.
We conclude that the district court’s termination of
Engel’s right to represent himself violated the Sixth
Amendment. A violation of a defendant’s Sixth Amendment
right to self-representation is structural error. See Wiggins,
465 U.S. at 177–79 & n.8; Rice, 776 F.3d at 1025 (“The
Supreme Court has found denial of the right of self-
representation to be structural error because it deprives a
defendant a fair chance to present his case in his own way.”
(internal quotation marks omitted)). Thus, we must vacate
Engel’s criminal conviction and remand for a new trial.
VACATED AND REMANDED.