United States v. Mark Manuel, Jr. , 732 F.3d 283 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-4258
_____________
UNITED STATES OF AMERICA
v.
MARK T. MANUEL, JR.,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-09-cr-00394-001
District Judge: The Honorable Legrome D. Davis
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 11, 2013
Before: McKEE, Chief Judge, SMITH, and SLOVITER,
Circuit Judges
(Filed: October 17, 2013)
1
Mary E. Crawley, Esq.
Office of United States Attorney
Suite 1250
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Regina M. Coyne, Esq.
Suite 1313
1500 John F. Kennedy Boulevard
Two Penn Center Plaza
Philadelphia, PA 19102
Counsel for Appellant
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
In 2004, Mark Manuel, Jr. (“Manuel”) pled guilty
to mail fraud, in violation of 18 U.S.C. § 1341, and
conspiracy to commit mail fraud, in violation of 18
U.S.C. § 371. He was sentenced to prison followed by a
three-year term of supervised release. After being
released from prison, Manuel repeatedly violated the
conditions of his supervised release. At a parole
revocation hearing on July 26, 2012, Manuel informed
2
the District Court that he no longer wanted to be
represented by counsel and instead wished to proceed pro
se. The District Court engaged in a colloquy with
Manuel, during which the Court inquired into Manuel’s
educational background, warned Manuel of the dangers
in representing himself, and asked several questions
about the reason for Manuel’s desire to proceed pro se.
The District Court ultimately granted Manuel’s request to
represent himself. At an adjourned revocation hearing on
November 5, 2012, at which Manuel presented witness
testimony, the District Court revoked Manuel’s
supervised release and sentenced him to two consecutive
sixteen-month terms of imprisonment.
On appeal Manuel asks us to vacate the sentence
imposed by the District Court and remand the matter for
a new revocation hearing. Relying heavily on our
decision in United States v. Peppers, 302 F.3d 120 (3d
Cir. 2002), Manuel argues that the colloquy performed
by the District Court regarding his request to proceed pro
se was insufficient. We disagree. Peppers dealt with a
defendant’s right to self-representation in a criminal
prosecution—not a parole revocation hearing. Following
the test adopted by other courts of appeals, we hold that,
in the context of a hearing regarding the revocation of
supervised release, the appropriate test is whether the
totality of the circumstances demonstrates that the
defendant knowingly and voluntarily waived
representation by counsel. Based on the record before us,
3
we find that the totality of the circumstances shows that
Manuel made a knowing and voluntary decision to
represent himself. Consequently, we will affirm the
District Court.
I.
A. Manuel’s Fraud Offenses and Conviction
Between July 2000 and November 2001, Manuel
and a co-conspirator fraudulently solicited membership
interests in a variety of programs owned and operated by
Manuel. 1 Manuel represented to potential investors—
most of whom were low- or moderate-income individuals
seeking help purchasing or refinancing their homes—
that, in exchange for payment of a membership fee
(ranging from a few hundred to a few thousand dollars),
Manuel’s programs would provide assistance with debt
consolidation, mortgage refinancing, and obtaining loans
from banks. Manuel and his co-conspirator did not
provide these benefits to the investors. Instead,
unbeknownst to the investors, Manuel and his co-
conspirator used the funds received from the investors for
1
These programs included the Future Millionaire’s Club,
Manuelabor.com, Get-A-Crib.com, S.E.E.E.D. (Spiritual
Empowerment Equals Economic Development)
Consortium, MWM Enterprises d/b/a 4M Limited, and
Debt Pool.
4
their own personal benefit.
On November 12, 2003, a grand jury in the U.S.
District Court for the Eastern District of Virginia indicted
Manuel on four counts of mail fraud, in violation of 18
U.S.C. § 1341, and one count of conspiracy to commit
mail fraud, in violation of 18 U.S.C. § 371, in connection
with this scam. On May 11, 2004, Manuel pled guilty to
one count of mail fraud and the count of conspiracy to
commit mail fraud. On October 26, 2004, the Eastern
District of Virginia sentenced Manuel to seventy-one
months in prison, followed by a three-year term of
supervised release. As one condition of his supervised
release, Manuel was required to refrain from any
unlawful drug use and ordered to undergo periodic drug
testing as directed by his probation officer. He also was
prohibited from self-employment and from working in
occupations where he would have access to personal or
financial information during the period of supervised
release.
B. Manuel’s Repeated Violations of the Terms of
Supervised Release
In December 2008, Manuel was released from
prison and commenced his term of supervised release.
On June 15, 2009, the Eastern District of Pennsylvania
accepted a transfer of jurisdiction over Manuel’s
supervised release from the Eastern District of Virginia
pursuant to 18 U.S.C. § 3605. Between 2009 and 2011,
5
Manuel repeatedly violated the conditions of his
supervised release by, among other things, failing
numerous drug tests. After a revocation hearing on
March 10, 2011, the District Court revoked Manuel’s
supervised release and imposed a sentence of two
concurrent terms of eight months in prison, followed by
two concurrent terms of twenty-four months of
supervised release.
On October 24, 2011, Manuel was released from
prison and commenced his second term of supervised
release. On November 2, 2011 and February 6, 2012,
Manuel again submitted urine specimens that tested
positive for cocaine. Additionally, during a routine home
visit on February 7, 2012, Manuel’s probation officer
discovered flyers advertising a debt-reduction seminar
that Manuel had organized, which constituted a violation
of the conditions of Manuel’s supervised release barring
him from engaging in self-employment and participating
in employment where he would have access to personal
or financial information.
To address these ongoing drug violations, the
District Court modified the conditions of Manuel’s
supervised release and ordered him to reside in a
residential reentry center for a period of 120 days. While
confined to the residential reentry center, Manuel
continued to commit additional loan fraud offenses. A
victim, Kathryn Williams (“Williams”), reported to
Manuel’s parole officer, Kyle Watts (“Watts”), that in
6
April 2012, Manuel had recruited her to participate in an
organization called the “Women’s Opportunity
Organization,” which he claimed was created to provide
financial assistance to single women, and had convinced
Williams to give him $500 for membership in another
organization, the “NEMA Financial Empowerment
Association,” in exchange for the promise to secure a
$300,000 home loan for her. See Report of Violation of
Supervised Release dated June 11, 2012, Supplemental
Appendix 28–29. Additionally, Watts learned that, on or
around May 24, 2012, Manuel solicited other residents of
the reentry center to pay money to one of his
organizations and promised these residents that in return
they would receive profits and assistance with debt
reduction, restructuring mortgages, and obtaining and
refinancing home loans. Id. at Supplemental Appendix
30.
C. Manuel’s Revocation Hearing and Request to
Proceed Pro Se
On June 11, 2012, the District Court issued a
warrant for Manuel’s arrest and signed a petition seeking
revocation of supervised release. At a preliminary
hearing on June 15, 2012, Manuel stipulated to probable
cause and detention pending his final revocation hearing.
The District Court held an initial revocation
hearing on July 26, 2012. At this hearing, the
government presented evidence of Manuel’s violations of
7
the conditions of supervised release, including testimony
by Manuel’s probation officer and testimony by Williams
and her mother about Manuel’s efforts to solicit
Williams’ participation in the Women’s Opportunity
Organization and NEMA Financial Empowerment
Association.
After these witnesses were cross-examined by
Manuel’s counsel, Regina Coyne, Esq. (“Ms. Coyne”),
and the government had concluded presenting its
evidence, Manuel informed the District Court that he no
longer wanted to be represented by Ms. Coyne and
instead wished to proceed pro se. The District Court
engaged Manuel in the following colloquy about his
request, during which the Court questioned Manuel
about, among other things, his educational background
and lack of familiarity with court rules, his reasons for
wanting to represent himself, and the strategic
disadvantages of proceeding pro se:
THE COURT: So, sir, how old are you?
THE DEFENDANT: I am fifty-four
years old.
THE COURT: And how far did you go
in school?
THE DEFENDANT: Four years of
college.
8
THE COURT: And where did you go to
college?
THE DEFENDANT: Indiana
University, Wilmington [sic], Indiana.
THE COURT: You need to speak
louder. So you completed your academic
program but if I remember correctly, since
you had an outstanding tuition bill, you
didn’t get your degree, is that correct?
THE DEFENDANT: Degree, yes.
Thank you.
THE COURT: Do you have any drugs
or alcohol in your system today?
THE DEFENDANT: No, I do not.
THE COURT: And do you have any
mental health problems today or have you
had any in the past?
THE DEFENDANT: No, I do not.
THE COURT: And tell me what you got
your degree in?
THE DEFENDANT: Business
administration and management.
9
THE COURT: All right. So you did not
go to any post-grad -- or post-graduate
program of any sort, is that correct?
THE DEFENDANT: No, sir.
THE COURT: And -- am I correct, is that --
THE DEFENDANT: Yes.
THE COURT: And it would be fair to
say that you do not have any legal training,
is that also correct?
THE DEFENDANT: That is correct.
THE COURT: It would be fair to say
that you haven’t gone to law school?
THE DEFENDANT: That is correct.
THE COURT: So you obviously
understand this is a court of law with very
clear and established rules and procedures --
THE DEFENDANT: Yes, sir.
THE COURT: -- correct?
THE DEFENDANT: Yes.
THE COURT: And you’re one who
10
does not have legal training. You would be
bound by the rules and the procedures, do
you understand that?
THE DEFENDANT: Yes.
THE COURT: There may be certain
things that you want to say that could be
useful. But because you’re not legally
trained, you wouldn’t think of them, right?
So you may miss things because you’re not
legally trained. Do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: There may be objections
to some of the government’s questions. And
because you’re not legally trained, you
might not be able to know to object. Do you
understand that?
THE DEFENDANT: Yes, I do.
THE COURT: All right. But if you --
you, of course, have the absolute right to
represent yourself if that’s your wise and
informed choice. You understand that?
THE DEFENDANT: Yes, I do.
THE COURT: But if you represent
11
yourself, you would be the lawyer. She
would serve only in a back-up capacity.
There wouldn’t be any switching back and
forth. Your representation would have to be
total and complete. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: You understand
everything I have said to you about this?
THE DEFENDANT: Yes, I do.
THE COURT: Do you have any
questions about any of it?
THE DEFENDANT: No. Just apologize
beforehand if I make any errors.
THE COURT: Well, if you make errors,
they’re yours.
THE DEFENDANT: Okay.
THE COURT: Right? Because I would
advise you --
THE DEFENDANT: Well, but --
THE COURT: Excuse me. I would
advise you to keep your lawyer. That’s what
I would advise you. I have not seen ever a
12
defendant who’s benefitted himself by self-
representing. Ever. May you be the first,
but I doubt it. I would advise you to keep
your lawyer. So why do you want to get rid
of her?
THE DEFENDANT: Sir, because, first
of all, I believe that there have been certain
due process and procedural errors in this
entire venue with respect to my sentencing,
with respect to the documentation that I
received from the probation officer, with
respect to my disposition, the amount of
imprisonment time, the amount of
supervised release time that I had, the
allegations concerning -- I was placed in a
halfway house because of suspicion of doing
business when it was for -- I agreed to
modification because of drug use. There has
been no --
THE COURT: Sir, I have an entire file -
-
THE DEFENDANT: Sure.
THE COURT: -- for you even though
this is a case transferred from Virginia. I
probably have eight or ten reports from the
probation department.
13
THE DEFENDANT: Okay.
THE COURT: And so, I am very
familiar with – and I can measure
independently what Mr. Watts tells me. But
you’re explaining to me why you do not
want to be represented by Ms. Coyne. So
tell me why you don’t want to be
represented by her.
THE DEFENDANT: Because, number
one, I believe that I should be able to
confront all my witnesses. And her
speaking on behalf of her daughter, even
though that’s her daughter, I don’t believe
that that’s in my best interest. Number two -
-
THE COURT: We’re not in a trial
proceeding. This is a revocation hearing.
And hearsay is admissible and you would
know it if you were a lawyer.
THE DEFENDANT: Well --
THE COURT: Hearsay is admissible.
And then, secondly, there’s a question of
weight, right --
THE DEFENDANT: Correct.
14
THE COURT: -- that I would assume to
the evidence. And this is the disadvantage
you have because you’re not a lawyer.
THE DEFENDANT: Right. Yes. I
understand hearsay is admissible but also I
have the right to confront an adverse
witnesses [sic] against me, sir. And just like
she --
THE COURT: Your right to
confrontation applies to revocation
proceedings in the same way that it applies
to a trial, yes or no? Don’t know, do you.
THE DEFENDANT: Yeah, based on
Morrissey v. Brewer, it says yes – yes, it is.
And I have the case right here.
THE COURT: Give me the facts in
Morrissey. That’s from the ‘60s, right?
THE DEFENDANT: No. It’s from ’72.
THE COURT: ‘70s. I meant it was old.
And if you’re going to read from the
document that you submitted, I guess it was
last week, I’ve already read that.
THE DEFENDANT: No. No. I was
going to --
15
THE COURT: You’re going to read
from something else?
THE DEFENDANT: I’m sorry?
THE COURT: You’re going to read
from something else?
THE DEFENDANT: Yes. I’m going to
read from the exact case itself, Morrissey v.
Brewer.
THE COURT: Are you going to read
from Morrissey?
THE DEFENDANT: Yes.
THE COURT: Okay. I don’t need you
to read Morrissey to me.
THE DEFENDANT: Well, I was just
going to read the part about what due
process and what respect to supervised
release revocation hearings, just that one
part --
THE COURT: Okay.
THE DEFENDANT: -- about being able
to confront adverse witnesses.
THE COURT: Fine. Go ahead. Read
16
what you want to read.
THE DEFENDANT: If you’ll bear with
me.
(Pause)
THE DEFENDANT: Okay. It says
basically with respect to preliminary --
MS. COYNE: You’ve got the wrong
one.
THE DEFENDANT: Okay. “On
request of the parolee, a person who has
given adverse information on which parole
revocation is to be based is to be made
available for questioning in his presence.”
THE COURT: So why else do you want
to terminate her as your lawyer?
THE DEFENDANT: Well, sir --
THE COURT: Well, you know what? I
could just tell you right now. Ms. Williams,
the daughter, I am disregarding all of her
information. All right?
THE DEFENDANT: Okay.
THE COURT: I am not accepting it for
17
the truth of the matter. I’m only accepting it
as the route that this case --
THE DEFENDANT: Oka. [sic]
THE COURT: -- traveled to get in front
of me.
THE DEFENDANT: Okay.
THE COURT: So go ahead. What else
do you want to say?
THE DEFENDANT: Well,
understanding exactly what you said, the
witness that is here, she basically stated in
the documentation that I received from
probation that she met me outside of a
convenience store soliciting.
THE COURT: Sir, I can’t talk you out
of self-representing. Is that where we’re
going? You want to represent yourself?
THE DEFENDANT: Well, I want
certain questions to be --
THE COURT: Yes or no? Do you want
to represent --
THE DEFENDANT: Yes.
18
THE COURT: Okay. Do you want her
to serve in a backup capacity?
THE DEFENDANT: Yes, I do.
THE COURT: All right. Any other
questions either of the lawyers think I need
to ask?
MS. CRAWLEY: No, Your Honor.
MS. COYNE: No, Your Honor.
THE COURT: You’ve done a lot of
foolish type things in your life, sir. This
might be the most foolish you’ve ever done.
That’s my advice to you. But if you want to
do it, I don’t have legal authority to stop
you. All right.
Transcript of Hearing Regarding Violation of Supervised
Release, Appendix 55–62. The District Court granted
Manuel’s motion to proceed pro se and allowed him to
retain Ms. Coyne as standby counsel.
Manuel represented himself for the remainder of
the July 26 hearing and, at the close of the hearing,
requested a continuance in order to serve subpoenas and
present additional witnesses. The Court granted the
request. At an adjourned revocation hearing on August
27, 2012, Manuel requested, and was granted, another
19
continuance of sixty days. On November 5, 2012, the
District Court held a third revocation hearing, at which
Manuel presented witness testimony from his substance
abuse therapist and employees of the residential reentry
center. At the conclusion of the November 5th
revocation hearing, the District Court found Manuel in
violation of his supervised release and imposed the
statutory maximum sentence of sixteen months on each
of the two terms of release, to be served consecutively,
for a total sentence of thirty-two months. This timely
appeal followed. 2
II.
Manuel asks us to vacate the sentence imposed by
the District Court and remand the matter for a new
revocation hearing. Manuel argues that the colloquy
performed by the District Court regarding Manuel’s
request to represent himself at the revocation hearing was
inadequate, thus rendering his waiver of his right to
counsel ineffective. We disagree.
2
The District Court had jurisdiction over the criminal
offenses for which Manuel was convicted pursuant to 18
U.S.C. § 3231 and had jurisdiction over the revocation of
Manuel’s supervised release pursuant to 18 U.S.C.
§ 3583(e). We have appellate jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
20
A. The Standard of Review
We exercise plenary review over a district court’s
finding that a defendant in a criminal prosecution
knowingly and intelligently waived the right to counsel.
United States v. Booker, 684 F.3d 421, 425 (3d Cir.
2012). The government argues, citing United States v.
Jackson, 443 F.3d 293, 300–01 (3d Cir. 2006), and other,
non-precedential authority, that because Manuel failed to
interpose an objection to the colloquy conducted by the
District Court, we should apply a plain error standard of
review. Manuel, by contrast, urges us to apply plenary
review. We find that even under the more stringent
plenary review, the District Court committed no error
with regard to Manuel’s waiver of counsel.
B. The Standard for Determining the Efficacy of a
Defendant’s Waiver of Counsel at a Revocation
Hearing
The right to counsel in a criminal prosecution
embodied in the Sixth Amendment carries with it the
corollary right to proceed pro se. Faretta v. California,
422 U.S. 806, 819–21 (1975). Before being permitted to
waive the right to counsel in favor of self-representation,
a defendant in a criminal prosecution must be made
aware of the dangers and disadvantages of proceeding
pro se and must knowingly, intelligently, and voluntarily
forego the benefits of representation by counsel. Id. at
835 (citing Johnson v. Zerbst, 304 U.S. 458, 464–65
21
(1938)). Recognizing the fundamental importance of this
constitutional right, we have made clear that in a criminal
prosecution, the trial court bears “the weighty
responsibility of conducting a sufficiently penetrating
inquiry to satisfy itself that the defendant’s waiver of
counsel is knowing and understanding as well as
voluntary.” United States v. Peppers, 302 F.3d 120,
130–31 (3d Cir. 2002). To assist in conducting this
inquiry, we set forth a framework in Peppers containing
fourteen questions for the court to ask the criminal
defendant in order to assure the court that the defendant’s
decision to proceed pro se is knowing, intelligent, and
voluntary. Id. at 136–37. See also United States v.
Jones, 452 F.3d 223, 228–29 (3d Cir. 2006) (“The
purpose of the inquiry is to establish that the defendant:
(1) has ‘clearly and unequivocally’ asserted his desire to
represent himself; (2) ‘understands the nature of the
charges, the range of possible punishments, potential
defenses, technical problems that [he] may encounter,
and any other facts important to a general understanding
of the risks involved’; and (3) is competent to stand
trial.”) (quoting Peppers).
However, Peppers applies only to a defendant’s
request to proceed pro se in a criminal prosecution. A
parole revocation hearing is not a criminal prosecution.
Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“[T]he
revocation of parole is not a part of a criminal
prosecution and thus the full panoply of rights due a
22
defendant in such a proceeding does not apply to parole
revocations.”). Accordingly, there is no constitutional
right to representation by counsel at a parole revocation
hearing. Gagnon v. Scarpelli, 411 U.S. 778, 783–90
(1973). Thus, the fourteen-point inquiry set forth in
Peppers is not the appropriate standard for determining
the sufficiency of a colloquy performed by an examining
court in response to a defendant’s request to proceed pro
se at a revocation hearing.
Although a defendant at a revocation hearing does
not have a constitutional right to counsel, a revocation
hearing nonetheless presents the risk of a loss of liberty
and thereby triggers the requirements of due process in
general. Morrissey, 408 U.S. at 484; Scarpelli, 411 U.S.
at 781–82. Federal Rule of Criminal Procedure 32.1 was
promulgated to address these due process concerns. See
Fed. R. Crim. P. 32.1; see also United States v. Barnhart,
980 F.2d 219, 222 (3d Cir. 1992) (noting that these due
process requirements were incorporated into Rule 32.1
following Morrissey and Scarpelli). However, Rule 32.1
does not address the appropriate standard by which to
assess a defendant’s waiver of the Rule’s protections.
We have not had occasion to speak to this issue in
a precedential opinion—however, several of our sister
circuits have addressed it and we consider their reasoning
persuasive. We expressly adopt the standard set forth in
those decisions: that, in order for due process to be
satisfied in the context of a parole revocation hearing, the
23
defendant’s waiver of rights under Rule 32.1 must be
knowing and voluntary under a “totality of the
circumstances.” See United States v. Hodges, 460 F.3d
646, 651–52 (5th Cir. 2006); United States v. Correa-
Torres, 326 F.3d 18, 23 (1st Cir. 2003); United States v.
LeBlanc, 175 F.3d 511, 515–17 (7th Cir. 1999). This
standard does not require “rigid or specific colloquies
with the district court.” Hodges, 460 F.3d at 651.
Rather, “the district court, when confronted with an
attempted waiver, will advise . . . the person on
supervised release of both the rights afforded him . . . and
the consequences of relinquishing those rights.” Id. at
651–52 (citing Correa-Torres, 326 F.3d at 23). No
“particular mantra” is necessary and no “magic words”
are required for the district court to be satisfied that the
defendant’s waiver is knowing and voluntary. Id. at 652.
On appellate review where the defendant on supervised
release challenges the validity of the waiver of counsel,
the reviewing court should examine “the totality of the
attendant circumstances [including] evidence that sheds
light upon the target’s comprehension of the charges
against him and evidence as to his appreciation of the
nature of the rights afforded him by Rule 32.1.” Id.
C. The Totality of the Circumstances Demonstrates
that Manuel’s Waiver of Counsel Was Knowing and
Voluntary
We are satisfied that, under the totality of the
circumstances, Manuel’s waiver of counsel at his
24
revocation hearing was knowing and voluntary. Manuel
was aware of the nature of the charges against him and
the severity of the penalties that he faced. Although he
had no legal training, Manuel demonstrated familiarity
with the criminal process and the procedures surrounding
revocation of his supervised release. Manuel explicitly
acknowledged that he was aware that the revocation
hearing operated on technical rules and procedures and
that, as a non-lawyer, he may not raise appropriate
objections or make relevant arguments. The District
Court also specifically warned him of the strategic
disadvantages of proceeding pro se, advised him that he
would bear responsibility for any technical or strategic
errors that he might make while representing himself, and
strongly recommended that he keep Ms. Coyne as his
counsel rather than proceed pro se. Finally, there is
nothing to suggest that Manuel’s waiver was the product
of coercion or gamesmanship and nothing to suggest that
this decision was anything other than Manuel’s voluntary
and informed choice.
III.
For the reasons stated above, we hold, as have our
sister circuits, that a defendant’s waiver of the rights
afforded by Rule 32.1 is effective where it is knowingly
and voluntarily made. In a parole revocation hearing, a
defendant’s waiver of his right to counsel is effective
where the totality of the circumstances demonstrates that
the defendant’s waiver of counsel was made knowingly
25
and voluntarily. Based on the record evidence before us,
we conclude that the totality of the circumstances
demonstrates that Manuel’s waiver of his counsel was
knowing and voluntary. Accordingly, we will affirm.
26