United States v. Gregory Berry ( 2014 )

FILED
NOT FOR PUBLICATION JAN 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50618
Plaintiff - Appellee, D.C. No. 2:09-cr-00831-DSF-1
v.
MEMORANDUM*
GREGORY MACDONALD BERRY,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted December 2, 2013
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
Gregory Berry (Berry) appeals his criminal conviction following a jury trial
during which he represented himself. Berry asserts that the district court erred by
granting his request to proceed pro se, alleging that his waiver of the right to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
counsel was equivocal. We review for clear error a district court’s finding that a
defendant’s waiver of the right to counsel was unequivocal. See United States v.
Marks, 530 F.3d 799, 816 (9th Cir. 2008).1
“To qualify as unequivocal, ‘a defendant must make an explicit choice
between exercising the right to counsel and the right to self-representation so that a
court may be reasonably certain that the defendant wishes to represent himself.’”
United States v. Carpenter, 680 F.3d 1101, 1102 (9th Cir.) (per curiam), cert.
denied, 133 S. Ct. 679 (2012) (citation and alteration omitted). The record before
us reveals that Berry’s request was unequivocal. Throughout the proceedings,
Berry repeatedly asserted his right to proceed without counsel. See United States
v. Robinson, 913 F.2d 712, 714 (9th Cir. 1990) (holding a waiver unequivocal
where a defendant expressed his preference to represent himself several times,
albeit cagily, and was considered by the district court, after exhaustive examination
on the question, to have made a clearly articulated choice). Once Berry confirmed
his desire to proceed pro se, the district court judge conducted a Faretta2 hearing.
1
Counsel clarified at oral argument that Berry does not assert on appeal that
he lacked competence to waive his right to counsel.
2
Faretta v. California, 422 U.S. 806 (1975).
2
After being advised of the hazards of self-representation, Berry was asked if
he still wanted to represent himself and he answered unequivocally, “Yes, your
Honor, I do.” In these circumstances, the district court judge could be “reasonably
certain” that Berry wished to represent himself, Carpenter, 680 F.3d at 1102, and
that Berry had made an unequivocal request for self-representation. See Marks,
530 F.3d at 817 (“[W]hile we suspect that Marks initially engaged in game
playing, typical of a tax evader, in his responses to the court as to whether he
waived his right to counsel, Marks finally answered unequivocally that he did not
want a lawyer.”) (citation and internal quotation marks omitted).
Berry concedes that his argument challenging the district court’s finding of a
prior conviction is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998).
AFFIRMED.
3