United States v. Marlin Gougher ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50436
18-50352
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00635-WQH-1
MARLIN LEE GOUGHER,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted May 14, 2020
Pasadena, California
Before: COLLINS and LEE, Circuit Judges, and PRESNELL,** District Judge.
Concurrence by Judge COLLINS
This case involves two consolidated appeals. The first is an appeal from
Marlin Lee Gougher’s (“Gougher”) convictions for distribution, receipt, and
possession of child pornography in violation of 18 U.S.C. § 2252. The second
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
appeals the denial of a motion to correct transcripts that were filed for the first
appeal. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
I. Gougher’s Representation
Gougher’s representation by counsel and his objections to that representation
appear to be based on his “sovereign citizen” beliefs. Sovereign citizens share a
common belief that the court system is “a vast governmental conspiracy” controlled
by complicated and enigmatic rules. United States v. Glover, 715 F. App'x 253, 256
n.2 (4th Cir. 2017). They generally take the position “that they are not subject to”
federal laws and proceedings. United States v. Mesquiti, 854 F.3d 267, 269-70 (5th
Cir. 2017). This creates a difficult balancing act for trial courts when considering
whether to allow criminal defendants with profoundly flawed views of the law to
represent themselves.
Gougher first argues that the district court violated his Sixth Amendment
rights by (1) allowing him to represent himself at the bail revocation hearing when
he had not yet made an unequivocal decision to represent himself, and (2) not
allowing him to represent himself at trial once he had made an unequivocal decision
to represent himself. We review waivers of counsel de novo. United States v.
Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004). The Ninth Circuit has “not yet clarified
whether denial of a request to proceed pro se is reviewed de novo or for abuse of
discretion.” United States v. Maness, 566 F.3d 894, 896 n.2 (9th Cir. 2009).
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“Whether to allow hybrid representation, where the accused assumes some of the
lawyer's functions, is within the sound discretion of the judge.” United States v.
Williams, 791 F.2d 1383, 1389 (9th Cir. 1986).
The first question is whether Gougher, as he argues, engaged in “self-
representation without counsel” at the revocation hearing. Gougher had the benefit
of counsel both prior to and during the revocation hearing. Because Gougher would
not permit his counsel to speak without interruption, the district court permitted
Gougher to assume some of counsel’s functions: questioning witnesses, making
objections, and giving oral argument. The Court also gave Gougher’s counsel the
opportunity to object, to cross-examine, and to give oral argument. At most,
Gougher’s participation created a hybrid counsel situation. The district court did not
abuse its discretion in permitting Gougher to participate.
The next question is whether Gougher made an unequivocal decision to
represent himself at trial and whether the district court violated his Sixth Amendment
rights by failing to honor that decision. “In order to deem a defendant's Faretta
waiver knowing and intelligent, the district court must [e]nsure that he understands
1) the nature of the charges against him, 2) the possible penalties, and 3) the ‘dangers
and disadvantages of self-representation.’” Erskine, 355 F.3d at 1167 (quoting
United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987)). The district court
denied Gougher’s request to represent himself at trial. Gougher had repeatedly
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insisted, and continued to insist, that he did not understand the nature of the charges
against him. A district judge cannot be expected to ensure that a defendant
understands the nature of the charges against him when the defendant repeatedly and
consistently refuses to acknowledge that he understands them.
Gougher also argues that the district court’s refusal to appoint substitute counsel
following Gougher’s bar complaint against his attorney violated the Sixth
Amendment. We review de novo claims “that trial counsel had a conflict of interest
with the defendant.” United States v. Nickerson, 556 F.3d 1014, 1018 (9th Cir.
2009). The Sixth Amendment is violated when an attorney has an actual conflict of
interest that adversely impacts his or her performance in a criminal case. United
States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998). Where, as here, the defendant
has been repeatedly uncooperative with successive counsel, we have declined to find
that an eve-of-trial filing of a bar complaint against the defendant’s latest counsel
gives rise to an actual conflict of interest that would require a substitution of
counsel. See United States v. Plasencia-Orozco, 852 F.3d 910, 916–18 (9th Cir.
2017). Beyond his mere filing of a bar complaint against his fourth appointed
counsel, Gougher does not otherwise explain why the district court should have
found an actual conflict. Accordingly, there is no basis for finding that the district
court’s refusal to appoint substitute counsel violated the Sixth Amendment.
II. Speaking in Court
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Gougher argues that the district court abused its discretion by prohibiting
Gougher from making statements during court proceedings. A represented defendant
does retain authority over some aspects of the case, such as whether to plead guilty,
to have a jury trial, to appeal, and to testify on his own behalf. United States v. Read,
918 F.3d 712, 720 (9th Cir. 2019). Beyond that, it was not an abuse of discretion for
the district court to otherwise insist that Gougher speak only through his appointed
counsel. See United States v. Williams, 791 F.2d 1383, 1389 (9th Cir. 1986) (district
court has discretion to deny “hybrid” representation in which defendant supplements
attorney’s representation). Moreover, Gougher cites no persuasive authority to
support his argument that the First Amendment somehow grants a criminal
defendant the right to speak at his trial outside the strictures of the applicable rules
of court.
III. Gougher’s Stricken Testimony
We review de novo comments on a criminal defendant’s failure to testify.
United States v. Inzunza, 638 F.3d 1006, 1022 (9th Cir. 2011). When the defendant
fails to object at trial, we review Fifth Amendment claims for plain error. United
States v. Sehnal, 930 F.2d 1420, 1426 (9th Cir. 1991).
Gougher contends that (1) the cross-examination about child pornography on
the computers and (2) the rebuttal argument that mentioned Gougher’s failure to say
5 17-50436
anything contradicting the government’s evidence both violated the Fifth
Amendment. But the Fifth Amendment privilege is not self-executing. A defendant
who wishes to avail himself of the privilege against self-incrimination “must claim
it or he will not be considered to have been ‘compelled’ within the meaning of the
Amendment.” Minnesota v. Murphy, 465 U.S. 420, 427 (1984) (quoting United
States v. Monia, 317 U.S. 424, 427 (1943)). Gougher voluntarily took the stand, and
at no point during his testimony did Gougher assert his Fifth Amendment privilege.
Thus, neither the cross-examination nor the rebuttal argument violated his Fifth
Amendment rights.
IV. The Motions for Discovery and Evidentiary Hearing about Current
NCIS Investigative Practices
We review district court discovery rulings for abuse of discretion. United
States v. Sellers, 906 F.3d 848, 851 (9th Cir. 2018). However, if the district court
applied the wrong legal standard, it necessarily abused its discretion. Id. at 852. We
review de novo the question of whether the district court applied the correct legal
standard. Id. at 851. Essentially, Gougher argues he was entitled to discovery that
could show that a different case, United States v. Dreyer, 804 F.3d 1266 (9th Cir.
2015), was wrongly decided. The district court did not abuse its discretion when it
found that such information was irrelevant to this case. And Gougher fails to
establish that the district court applied an incorrect legal standard. Accordingly, the
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district court’s denial of the motions for discovery and evidentiary hearing was not
improper.
V. Motion to Correct Transcripts
We will not disturb “a trial court’s factual finding that transcripts are accurate
and complete” unless clearly erroneous. United States v. Anzalone, 886 F.2d 229,
232 (9th Cir. 1989). Gougher argues that the district court erred in denying the
Motion to Correct Transcripts without first reviewing the recordings of the
proceedings. The district court stated that it reviewed Gougher’s proposed changes
and the response of the court reporter, and it found that the court reporter’s version
was accurate. We find no basis for concluding that the district court clearly erred in
denying Gougher’s requests for additional changes to the transcript. But, even if
there were errors in the transcript, Gougher has not made a showing of specific
prejudice, and thus he cannot prevail on this issue. United States v. Horob, 735 F.3d
866, 872 (9th Cir. 2013).1
AFFIRMED.
1
We deny Gougher’s motion in this court to make additional changes to the
transcript (17-50436 Docket No. 18).
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FILED
United States v. Gougher, Nos. 17-50436, 18-50352
NOV 19 2020
COLLINS, Circuit Judge, concurring in part and in the judgment: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the last paragraph of Section I of the memorandum disposition,
as well as in Sections II-V. As to the remainder of Section I, I concur only in the
judgment.
1. I do not join in the majority’s gratuitous observations, at the beginning of
Section 1, about whether Gougher subscribes to “‘sovereign citizen’ beliefs” and
about what such beliefs entail. See Mem. Dispo. at 2. Whether or not such beliefs
underlay Gougher’s behavior in court seems to me to be beside the point.
2. I agree that Gougher was not deprived of his Sixth Amendment right to
counsel at his bond revocation hearing, where the district court allowed Gougher to
question witnesses and to make objections. But I reach that conclusion for reasons
that differ from the majority’s rationale.
The majority contends that “Gougher’s participation created a hybrid
counsel situation” and that the district court “did not abuse its discretion in
permitting Gougher to participate.” See Mem. Dispo. at 3. In my view, the
majority’s reasoning begs the Sixth Amendment question. Assuming that the bond
hearing constituted a critical stage of the case at which Gougher had a Sixth
Amendment right to counsel, we made clear in United States v. Turnbull, 888 F.2d
636 (9th Cir. 1989), that “hybrid representation” is “acceptable only if the
defendant has voluntarily waived [his right to] counsel”—at least where, as here,
“the defendant assumes any of the ‘core functions’ of the lawyer.” Id. at 638
(emphasis added). Thus, there still must be a predicate waiver of the Sixth
Amendment right to counsel in order to uphold a district court’s authorization of a
hybrid situation in which the defendant assumes the sort of central role that
Gougher did at the bond hearing. The majority cites nothing to support its
conclusion or to justify its disregard of the underlying Sixth Amendment issue and
Ninth Circuit precedent.
Although the record does not appear to demonstrate that the district court
conducted a proper Faretta colloquy at the bond hearing, United States v. Hayes,
231 F.3d 1132, 1136 (9th Cir. 2000), I nonetheless conclude that Gougher
effectively waived his Sixth Amendment right to counsel by his conduct at that
hearing. Gougher’s counsel had not been discharged, and Gougher therefore
remained represented by counsel during the hearing, but Gougher repeatedly
objected to his counsel’s participation. At the same time, Gougher conversely
insisted that he did not wish to proceed pro se. The district court’s handling of the
difficult situation created by Gougher’s conduct did not violate his Sixth
Amendment right to counsel. See United States v. Turner, 897 F.3d 1084, 1104
(9th Cir. 2018) (district court did not err in finding waiver of right to counsel
where defendant “‘manipulated the proceedings’ by vacillating between asserting
2
his right to self representation and his right to counsel”); United States v. Massey,
419 F.3d 1008, 1010 (9th Cir. 2005) (“Massey attempted to hinder his trial by
declining every constitutionally recognized form of counsel while simultaneously
refusing to proceed pro se. A defendant may not abuse the Sixth Amendment in
this way[.]”).
3. I also agree that the district court did not infringe Gougher’s
constitutional rights by refusing on the first day of trial to allow him to proceed pro
se. Again, however, my reasoning differs from that of the majority.
The majority concludes that the denial of self-representation was proper
based on the fact that Gougher refused to state that he understood the nature of the
charges against him. See Mem. Dispo. at 3–4. But there is no indication in the
record that Gougher did not understand either the elements of the crimes with
which he was charged or the nature of the charged conduct that he was alleged to
have committed. See United States v. Lopez-Osuna, 232 F.3d 657, 664–65 (9th
Cir. 2000) (waiver of counsel was sufficient under Faretta where defendant knew
the elements of the charge and the underlying violative conduct alleged). Rather,
Gougher’s comments made clear that he claimed not to understand why the
“United States”—which he characterized as an officious “corporation”—could
assert the authority to punish him at all. But that is not part of what Faretta
requires, because “there is a difference between agreeing with the charges and
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understanding them.” Id. at 665. And if it really had been true that Gougher did
not understand the charged offenses, then “the district court should have informed
him of the pending charges before proceeding any further.” Id. at 664.
I nonetheless agree that the district court properly declined to allow Gougher
to proceed pro se based on the district court’s conclusion that Gougher was not
“able and willing to abide by the rules of procedure and courtroom protocol.”
Gougher concedes that this is a proper ground for denying the right to self-
representation, see Lopez-Osuna, 232 F.3d at 664, but he asserts that it was
“necessary to give self-representation a try before concluding [that] Gougher
would not respect courtroom decorum.” That is wrong. By the first day of trial,
there was already an extensive record of Gougher’s repeatedly inappropriate and
disruptive behavior throughout the proceedings below, and that record provided
ample grounds for the district court to deny Gougher’s request to proceed pro se.
For these reasons, I respectfully concur in part and in the judgment.
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