United States v. Tyrone Wright , 923 F.3d 183 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 1, 2018 Decided May 7, 2019
No. 17-3033
UNITED STATES OF AMERICA,
APPELLEE
v.
TYRONE WRIGHT,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cr-00073-1)
Andrew M. Stewart, appointed by the court, argued the
cause and filed the brief for appellant.
Anwar L. Graves, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt,
and Stephen J. Gripkey, Assistant U.S. Attorneys.
Before: GRIFFITH and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Displeased with his first two
court-appointed attorneys, appellant Tyrone Wright chose to
proceed pro se. He made this choice in the face of repeated
warnings by the trial judge about the hazards of representing
himself in a criminal matter. On appeal, Wright argues that the
court erred in denying his request for a third attorney and
allowing him to represent himself. We find no error and affirm
his jury conviction.
I
Wright was indicted for three counts of bank robbery in
violation of 18 U.S.C. § 2113(a). The court appointed David
Bos of the Office of the Federal Public Defender for the District
of Columbia to represent him. During Bos’s first appearance,
the court granted a motion by the defense for a 45-day
continuance to review discovery and obtain additional
information. Bos told the court that Wright, who was not
present at the hearing, agreed to the continuance, but when
Wright appeared at the next status hearing, he claimed that Bos
had not “consulted” him, and that he had not approved this
delay. J.A. 22, 25. Declaring to the court that he was “not
comfortable with” Bos, Wright asked for either “a new
attorney” or permission to proceed pro se. J.A. 22-25.
The court cautioned Wright, “[I]t is a terribly bad idea to
go pro se,” J.A. 40, and explained that Wright would have more
control over trial strategy if he hired paid counsel. When his
attempts to hire private counsel failed, the court appointed
Peter Cooper as a temporary replacement for Bos to allow
Wright time to think about whether he wanted Cooper to
represent him going forward. Wright was initially resistant to
the idea but eventually agreed that Cooper could represent him
and consented to a six-week delay of the impending trial date
to allow time to prepare.
3
As they worked together, Cooper grew concerned that
Wright might not be competent to stand trial. With Wright’s
permission, Cooper asked the court to order a competency
screening. The court agreed, and Wright was found competent.
Still skeptical, and once again with Wright’s consent, Cooper
asked the court to order a second, more exhaustive
examination. The court did so, and the Bureau of Prisons
conducted the examination at the Federal Medical Center in
Kentucky. The process took about a month longer than the
parties and the court expected but confirmed Wright’s
competence once again. Based on the two screenings, the
district court found Wright competent to stand trial.
This added delay was the final straw for Wright, and over
the course of the next month he raised various complaints about
Cooper. He questioned Cooper’s defense strategy and tactical
decisions, and even accused him of working with the
prosecution. Wright claimed that Cooper had failed to share
critical evidence with him and had agreed to an overly-
restrictive protective order that barred him from possessing
certain materials while in jail. He accused Cooper of requesting
the first competency screening without consulting him, and
only asking for the second one because Wright had refused to
enter a plea agreement that Cooper had urged him to accept.
Wright told the court that he was uncomfortable with
Cooper and did not trust him. He claimed that Cooper had
yelled and cursed at him and otherwise failed to adequately
communicate with him. According to Wright, Cooper had
offended him by asking if he was dissatisfied with his court-
appointed lawyers because they were of a different race.
Cooper acknowledged that they were having trouble working
together but laid the blame at Wright’s feet. As Cooper put it,
“I will do whatever the [c]ourt asks me to do, but at this time I
4
see myself as not being in a position to prepare a competent
defense for Mr. Wright” because of his “refusal to work with
me.” Suppl. App. 12-13.
The district court agreed and explained that Wright’s
complaints about Cooper were either unfounded or the result
of his refusal to cooperate with Cooper. Most of Wright’s
complaints involved disagreements over strategy, and the court
made clear to Wright that he was not “entitled to make . . .
every single trial strategy decision.” J.A. 201. The protective
order about which Wright complained was “routine” and
permissible, J.A. 197, and the record clearly established that
Wright had agreed to both competency screenings. The court
credited Cooper’s explanation that he had tried to share
evidence with Wright, but Wright had cut off those meetings.
The court found baseless Wright’s suggestion that Cooper was
somehow working with the prosecution or had any conflict of
interest. As to Cooper’s question about racial bias, the court
noted that it was not uncommon for defendants to express
concern about attorneys who are not of their race. Cooper’s
question was a reasonable way of exploring whether Wright
felt the same.
Eventually, Wright wondered aloud whether asking for
another court-appointed attorney would further delay his case.
Having already considered and rejected his various complaints,
the court explained that Wright would not receive a third
appointed counsel. The district court made clear that by
denying his request for another lawyer, it was not asking
Wright to choose between representing himself and accepting
inadequate counsel. See Suppl. App. 16 (court agreeing with
prosecutor’s statements that “there is no Hobson’s [C]hoice
here” and Cooper is providing “effective assistance”). The
court reiterated that any problem with Cooper’s representation
5
was because of Wright, not Cooper. Rather than keep Cooper,
his court-appointed lawyer, Wright asked to represent himself.
The court explained to Wright the perils of proceeding pro
se, described the charges he was facing and their potential
penalties, and asked about his legal training and experience.
Wright was invited to explain “[w]hy exactly is it that you want
to represent yourself.” Id. at 20. In reply, he merely recycled
prior complaints about Cooper. Wright also expressed concern
that Cooper was not capable of representing him adequately at
trial. This was because Cooper had presented Wright with a
plea offer only one week after he told the court he needed six
weeks to prepare for trial. But when the court pushed him on
the matter, Wright declined to allege that Cooper was not
capable, and said only that he had not seen affirmative evidence
of Cooper’s competence.
The court cautioned Wright yet again about the risks of
proceeding pro se and warned him, “you would be much better
off with trained lawyers like Mr. Cooper at trial than you are
by yourself.” Id. at 31. “You will have some minimal grasp and
familiarity with the law, but not to the extent that the lawyer is
going to have, or with the rules of evidence or with court
procedure. A trial in federal court is difficult even for an
experienced lawyer, and if you represent yourself, you’re going
to be at an extreme disadvantage given [the prosecutor’s]
experience and knowledge.” Id.
Wright was not persuaded, and so the district court
explored whether his decision to waive his right to counsel was
the result of pressure or threats or made in exchange for any
sort of promise. Satisfied it was not, the court asked Wright
whether he was taking any “drugs” or “prescribed medications
that might impact [his] ability to understand what’s going on
here.” Id. at 36; see id. at 17-18. Wright responded “[n]o,” and
6
explained that, although he was taking various prescription
medications, they “pretty much balance[] me out.” Id. at 36-37;
see id. at 17-18. He added, however, that he was not receiving
his antipsychotic medicine because of “issues going on in the
jail.” Id. at 36. Although Wright was not sure whether that
medicine “could enhance [his] capability as far as balance,” he
stated that he did not feel that the absence of the antipsychotic
limited his ability to understand the proceedings. Id. at 36-37.
“I feel good about my capacity to represent myself,” Wright
affirmed. Id. at 37.
The court concluded that Wright was competent to waive
his right to counsel and could represent himself. “[T]he
defendant has articulately and unmistakably asserted his Sixth
Amendment right to represent himself,” “knowingly,
intelligently, and voluntarily waived his right to counsel,” and
“understands the danger and disadvantages of proceeding on
his own and the risk of penalty that he faces.” Id. at 38. At a
subsequent hearing, Wright voiced his agreement with the
court’s conclusion that, “from a mental health perspective,” he
was “competent to represent [himself].” Id. at 45, 47. As he put
it, “I have been getting my medication” and “as long as I got
my medication in me, I feel I’m fine.” Id. at 47.
At trial, the government presented overwhelming evidence
of Wright’s guilt. The prosecution offered video of the
robberies in which Wright’s face was visible. It also put on
evidence that when arrested, Wright had red stains on his shirt
and fingertips like the stains from colored “bait money” used
by banks, a demand note nearly identical to the note witnesses
had described, and the exact amount of cash stolen from the
third bank. See Gov’t Br. 2-5. The jury found him guilty on all
counts, and the court sentenced him to 64 months’
imprisonment and 36 months’ supervised release and ordered
him to pay restitution.
7
On appeal, Wright argues that the district court “erred in
denying [his] request for new counsel and instead allowing him
to proceed pro se.” Wright Br. 1. We review the denial of a
request for new counsel for abuse of discretion. United States
v. Graham, 91 F.3d 213, 221 (D.C. Cir. 1996). We review de
novo whether a defendant “knowingly, intelligently, and
voluntarily waive[d] his Sixth Amendment right to counsel.”
United States v. Gewin, 471 F.3d 197, 198-99 (D.C. Cir. 2006).
We have jurisdiction pursuant to 28 U.S.C. § 1291.
II
An indigent criminal defendant has the right to effective
representation from court-appointed counsel, but he does not
have a “constitutional right to choose his [appointed] attorney.”
United States v. Bostick, 791 F.3d 127, 156 (D.C. Cir. 2015). If
he is unhappy with his appointed counsel and requests a
replacement, “the district court generally has an obligation to
engage the defendant in a colloquy” on the record “concerning
the cause of [his] dissatisfaction.” Graham, 91 F.3d at 221.
This exchange allows the court to assess whether the defendant
has shown the “good cause” necessary to obtain substitute
counsel, or to “ease the defendant’s concern” about his existing
counsel “if it is ill-founded.” Id.; see Bostick, 791 F.3d at 156-
57.
A defendant may also elect to represent himself, though
that right “is not absolute.” Indiana v. Edwards, 554 U.S. 164,
171 (2008). He must demonstrate the competence required to
waive the right to counsel, which is the same as that necessary
to stand trial. Godinez v. Moran, 509 U.S. 389, 399-400 (1993).
In some circumstances, he must also satisfy the higher degree
of competence required “to conduct his own defense at trial.”
United States v. McKinney, 737 F.3d 773, 775-77 (D.C. Cir.
8
2013) (explaining that to conclude a defendant may not
represent himself at trial requires a “threshold” determination
that he suffers from a “severe mental illness”) (citations and
quotation marks omitted).
Moreover, his waiver of the right to counsel must be
knowing, intelligent, and voluntary, which the district court
determines by conducting a “‘short discussion on the record’
about the dangers and disadvantages of self-representation,”
known as a Faretta colloquy pursuant to the Supreme Court’s
decision in Faretta v. California, 422 U.S. 806 (1975). Gewin,
471 F.3d at 198-99 (quoting United States v. Brown, 823 F.2d
591, 599 (D.C. Cir. 1987)). If the decision to proceed pro se
“appears grounded in dissatisfaction with [appointed]
counsel,” the court must allow the defendant to explain the
reasons for his dissatisfaction, “evaluate [those] objections,”
United States v. Cunningham, 145 F.3d 1385, 1392 (D.C. Cir.
1998), and “address[] the core elements of the defendant’s
concern,” United States v. Hall, 610 F.3d 727, 740 (D.C. Cir.
2010). Of course, if a defendant dissatisfied with his counsel
has already asked for and been denied a substitute, it may not
be necessary to repeat that discussion in the Faretta colloquy.
The key is that the defendant must have an adequate
opportunity to explain his concerns, and the district court must
evaluate them thoroughly.
Asking a defendant to make a “‘Hobson’s Choice’
between accepting appointed counsel whom he fe[els] [is] not
prepared for trial and representing himself” calls into question
whether his waiver of the right to counsel is voluntary. See
Cunningham, 145 F.3d at 1392. That is not so, however, when
the defendant’s qualms about appointed counsel lack merit, are
purely subjective, or are of his own making. Such complaints
do not constitute the “good cause” necessary to warrant
substitute counsel, nor do they render his waiver of the right to
9
counsel “involuntary.” Otherwise, the district court would be
required to appoint an unending parade of replacement counsel,
no matter how uncooperative the defendant, or risk violating
the Sixth Amendment. See id. (“Where a defendant’s
complaints of his counsel’s inadequacy plainly lack merit, a
court cannot allow itself to be manipulated into . . . appointing
new counsel just to placate a defendant threatening to represent
himself.”); see also United States v. Irorere, 228 F.3d 816, 828
(7th Cir. 2000); United States v. Allen, 789 F.2d 90, 93 (1st Cir.
1986); United States v. Moore, 706 F.2d 538, 540 (5th Cir.
1983); McKee v. Harris, 649 F.2d 927, 932 (2d Cir. 1981).
III
Wright’s argument on appeal is narrow. He contends that
the district court refused to entertain the possibility of
appointing substitute counsel. He faults the court for not
inquiring further into his breakdown in communication with
Cooper, which Cooper admitted was hindering his ability to
prepare Wright’s defense. Wright Br. 11. These failures,
Wright claims, forced him into a “Hobson’s Choice” between
accepting counsel he felt was inadequate and representing
himself. See id. at 12.
We cannot agree. The court provided ample opportunity
for Wright to set forth his concerns about Cooper on multiple
occasions, assessed whether they warranted substitute counsel,
and found them wanting. The court repeatedly rejected
Wright’s complaints about Cooper’s chosen strategy. As for
their breakdown in communication, the court acknowledged
Cooper’s statement but agreed with him that Wright’s refusal
to cooperate had caused these problems. Given this finding, the
court did not need to separately address each allegedly
“turbulent communication.” Id. at 11 (quotation marks
omitted); see Hall, 610 F.3d at 740-41 (finding Faretta
10
colloquy acceptable because “[t]he answers to” specific
concerns about defense counsel’s preparedness “were implicit
in [his] representations to the district court”). The court even
gave Wright time to raise any additional concerns about
Cooper during the Faretta colloquy. Although the district court
did not repeat its discussion of Wright’s complaints, there was
no need to do so. This colloquy took place immediately after
the court had denied Wright’s request for substitute counsel,
and Wright raised no new concerns about Cooper.
Wright does not direct us to any case in which we accepted
a similar “Hobson’s Choice” argument. He argues instead that
his case is unlike three others in which we rejected such claims.
See Wright Br. 11-12 (citing Cunningham, 145 F.3d 1385,
Hall, 610 F.3d 727, and United States v. Bisong, 645 F.3d 384
(D.C. Cir. 2011)). But that is simply not so. In each of the cases
he cites, the district court fairly concluded that the defendant’s
concerns about his attorney were unfounded and explained that
there was no reason to doubt his attorney’s abilities. See
Bisong, 645 F.3d at 387-94 (rejecting a “Hobson’s [C]hoice”
argument by a defendant who had requested to proceed pro se
multiple times despite the court’s assurance that counsel was
“extraordinary”); Cunningham, 145 F.3d at 1389-92 (same,
because the defendant’s complaints about counsel “plainly
lack[ed] merit” and the court had assured him that his attorney
was competent and prepared); see also Hall, 610 F.3d at 737-
41 (same). As the record makes clear, the same is true here. The
minor differences Wright finds between his case and our past
decisions—for instance, that Wright wished to expedite his
trial while Hall wanted to delay his, Wright Br. 11-12; Hall,
610 F.3d at 738—do not overcome these similarities.
A defendant’s loss of trust, lack of communication, or
serious disagreement about strategy might, in some cases,
warrant appointing substitute counsel or render the decision to
11
proceed pro se “involuntary.” This is not such a case. We agree
with the district court that Wright’s criticisms of Cooper’s
strategic decisions lack merit and arose from his
misunderstandings, which the district court sought to correct.
Given this, it was not an abuse of discretion to decline to
appoint substitute counsel, nor was it an error of law to
conclude that Wright could voluntarily choose to proceed pro
se.
Nor was the district court’s Faretta colloquy otherwise
defective. The content of this colloquy “lies within the district
court’s discretion so long as the court addresses the core
elements of the defendant’s concern,” Hall, 610 F.3d at 740,
and the colloquy here looks substantially similar to one that
“[w]e have characterized as ‘model,’” Gewin, 471 F.3d at 199
(quoting Brown, 823 F.2d at 599). The district court confirmed
that Wright knew he was entitled to counsel regardless of his
financial status and that he understood the nature of the charges
against him and the maximum penalties he faced. See id.
(caution the defendant about the seriousness of the charges).
The court warned Wright that although he might “have some
minimal grasp and familiarity with the law” or “the rules of
evidence or with court procedure,” representing himself would
prove challenging, and would place Wright at a disadvantage.
Suppl. App. 31; see Gewin, 471 F.3d at 199 (warn that the
judge cannot assist the defendant and that the trial will use the
Federal Rules of Evidence and Criminal Procedure). The court
cautioned Wright yet again about the risk inherent in
representing himself in a federal criminal trial. See Gewin, 471
F.3d at 199 (explain that “proceeding without the assistance of
a trained lawyer” is a “‘distinct handicap’” (quoting Brown,
823 F.2d at 599)). And the court made sure that no one had
pressured, threatened, or otherwise coerced Wright into
waiving his right to counsel.
12
We briefly address what Wright does not argue on appeal.
Wright does not contend that he was forced to proceed pro se
because he did not trust his court-appointed lawyers, although
some statements in the record suggest that may have been the
case. For instance, Wright told the court that he did not want to
proceed with Bos, his first appointed counsel, because lawyers
“assigned by the courts . . . investigat[e] for the defendant at
their discretion,” and he wanted an attorney that would “go
after every lead that I want him to look into,” and investigate
all “the nooks and crannies that I feel should be covered.” J.A.
49. He also questioned “whose side [Cooper’s] on as far as
doing [his] job. Is [he] working with the prosecution, or [is he]
working solely for me?” Suppl. App. 21. These statements
suggest that Wright may have mistakenly believed that only a
paid lawyer would defend him zealously and with undivided
loyalty.
Even though Wright does not make any such claim on
appeal, we raise it in service of a broader point: Many indigent
criminal defendants are suspicious of the government-funded
counsel to which they are constitutionally entitled. That could
infect a defendant’s decision to waive his right to appointed
counsel. Appointed counsel faced with this problem do what
they can to provide assurance, but the very nature of the
concern demonstrates why it is important for the defendant to
also hear from the judge. Clients may reasonably be reluctant
to voice mistrust to counsel’s face and, in any event, hesitate to
accept assurances from counsel they view as conflicted.
Whenever an indigent defendant seems concerned that counsel
is acting disloyally, the district court should take care to
prevent such a misperception from playing a core role in the
decision to proceed pro se. Indeed, given the importance of the
issue and the ease of addressing it, the best practice in any
Faretta colloquy is for the district judge to explain to the
defendant that all attorneys, paid or not, are ethically obligated
13
to loyally and zealously represent their clients. See, e.g., D.C.
R. Prof’l Conduct 1.3; Hendry v. Pelland, 73 F.3d 397, 401
(D.C. Cir. 1996).
One other issue gives us pause: During the Faretta
colloquy, Wright mentioned that he was not receiving his
antipsychotic medicine. That issue could have benefitted from
further attention on appeal. Medical experts and the district
court had found Wright competent to stand trial, and thus to
waive his right to counsel. See Godinez, 509 U.S. at 399-400
(explaining standards are the same). But Wright stated that he
was not receiving his antipsychotic medication at the time he
formally elected to proceed pro se, and we cannot determine
from the present record whether Wright was receiving his
medicine at the time of his competency evaluations. Moreover,
while the district court also found Wright competent to
represent himself at trial, that requires a higher degree of
competence. Edwards, 554 U.S. at 178; McKinney, 737 F.3d at
776-77; see Suppl. App. 47 (district court finding that
McKinney’s “mental health issues were far more severe” than
Wright’s). Wright’s appellate counsel did not make a point of
this in his brief or at oral argument, even after the panel asked
the government about this very issue. Oral Arg. 12:19-14:51,
16:54-17:37. Wright has therefore forfeited any arguments
related to his competency to waive his right to counsel or to
represent himself at trial. See, e.g., U.S. ex rel. Davis v. District
of Columbia, 793 F.3d 120, 127 (D.C. Cir. 2015) (issues first
raised at oral argument are generally forfeited); Bd. of Regents
of Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996)
(issues not raised in opening brief are generally forfeited).
IV
Accordingly, the judgment of the district court is affirmed.
So ordered.