United States v. Kashani Farhad , 190 F.3d 1097 ( 1999 )

Per Curiam Opinion; Concurrence by Judge REINHARDT.

PER CURIAM:

Kashani Farhad appeals from his conviction on fourteen counts of mail fraud in violation of 18 U.S.C. § 1341, and five counts of the false use of social security numbers in violation of 42 U.S.C. § 408(a)(7)(B). All of the offenses relate to a scheme perpetrated by Farhad, while he was a state prisoner, to fraudulently obtain state income tax refunds. Despite the fact that the Federal Public Defender was appointed on his behalf, Farhad elected to represent himself. Following a trial, the jury convicted him on all counts. Far-had asserts on this appeal that he did not knowingly, intelligently, and unequivocally waive his right to counsel. Moreover, he argues that even if his election to represent himself was sufficient under current constitutional standards, the right to self-representation itself should be reconsidered, and the Supreme Court case establishing that right, Faretta v. California, should be overruled. We affirm.

Factual and Procedural Background

Kashani Farhad, while serving an unrelated sentence in the California state penitentiary at San Quentin, filed 29 false tax returns claiming refunds from 16 states. Although Farhad used his own name, prisoner identification number, and prison address, he utilized fictitious employers and social security numbers. Before the San Quentin authorities became suspicious— due to the volume of mail containing checks that Farhad received from state tax bureaus — Farhad successfully collected approximately $20,000 in refund checks, which were deposited into his prison trust account. He used these funds to purchase food and other personal items from the prison commissary. At the time, Farhad was earning $116.09 per month from his prison job; his account balance at the time he was caught was $19,742.

Farhad was indicted, and a federal public defender was appointed to represent him. On July 2, 1996, however, Farhad informed the district court that, after consulting with his attorney, he had decided to represent himself. He explained that his decision was motivated principally by the belief that he could put forth a more effective defense than could the public defender.

The district court responded by holding a hearing and questioning Farhad under oath about his decision to elect self-representation. The district judge warned Far-had that he was charged with 19 counts, informed him of the maximum penalty on each count, and pointed out the potential consequences for him in state prison if he incurred a new federal conviction. Farhad replied that he understood the judge’s concern but that he remained convinced that he would present a more effective defense than would appointed counsel. -

In addition, the district court repeatedly warned Farhad that he was “making things harder” for himself by electing to proceed without a lawyer. The judge admonished Farhad that he would be responsible for arguing motions and making objections, he would have to abide by the rules of evidence and procedure, and he would “not get any breaks from the Court.” She predicted that the jury would have a difficult time understanding Farhad due to his accent. She told him numerous times that he had a right to be represented by an attorney who could “ask questions and make arguments properly,” and who would be familiar with the rules of evidence. The district judge also informed Farhad that he would not have the right to have stand-by counsel or to the use of an investigator, nor the right to any additional access to the law library. When Farhad indicated that he still wished to proceed, in spite of all of these admonitions, the district court informed him that if he went forward without an attorney, he would have no right to appeal based on a claim of ineffective assistance of counsel or because he “got a bad trial.” Nevertheless, Far-had continued to insist upon his “absolute right” to act as his own attorney.

Notwithstanding her warning that Far-had would not be entitled to stand-by counsel, the district judge appointed an assistant public defender to serve in that capacity. Farhad consented to the appointment of standby counsel, but indicated that he would prefer to utilize a “hybrid” form of representation. He stated that he wanted to make the opening and closing statements as well as exercise challenges during jury selection, but that he would like stand-by counsel to perform all the other tasks of representation. The district court flatly rejected this arrangement, and told Farhad that “it cannot be done that way. You do it all or he does it all.” Farhad then abandoned this request.

Following this colloquy, the district court made a finding of fact that Farhad had knowingly and voluntarily waived Ms right to counsel, and permitted him to proceed pro se. During pre-trial preparations over the ensuing weeks, the district court on several occasions reminded Far-had that he had a right to counsel and asked whether he wanted to change his mind and revoke his decision to represent himself. In particular, when the district court refused Farhad’s request for an investigator to help him locate and interview witnesses, it said:

You’ve chosen to represent yourself. Now if [the public defender] were representing you in this case, then he has a number of resources available to him ... That’s why you’re really hurting your chances in this case by doing this. You can reconsider, by the way, if you want to change your mind, and get [the public defender] to represent you.

In response, Farhad reaffirmed that he would represent himself.

Farhad acted as his own lawyer at trial, and was convicted on all counts. He was sentenced to 27 months imprisonment and ordered to pay $19,095.70 in restitution. This appeal followed.

Analysis

I. Validity of Farhad’s Waiver

A criminal defendant is entitled to waive his Sixth Amendment right to counsel. See Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A waiver of the right to counsel must be knowing, intelligent, and unequivocal. See United States v. Arlt, 41 F.3d 516, 519-20 (9th Cir.1994); United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987). The burden of proving the legality of the waiver is on the government. See United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir.1994). We approach this question cautiously, indulging “every reasonable presumption against waiver.” United States v. Arlt, 41 F.3d 516, 520 (quoting Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)). Applying these standards, we conclude that Farhad validly waived his right to counsel.

A waiver of counsel will be considered knowing and intelligent only if the defendant is made aware of (1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Balough, 820 F.2d at 1487 (citing Faretta, 422 U.S. at 835, 95 S.Ct. 2525); United States v. Van Krieken, 39 F.3d 227, 229 (9th Cir.1994). In this circuit, the “preferred procedure” to ensure the validity of a waiver is for the district court to discuss each of the three elements with the defendant on the record in open court. See Balough, 820 F.2d at 1487; Van Krieken, 39 F.3d at 229.

Here, the record demonstrates that the district court conscientiously conducted the appropriate inquiry. When Farhad invoked his right to self-representation, the district court immediately placed him under oath and held a hearing in open court. During the course of that hearing, the district judge informed Farhad of the charges against him and the possible penalties he faced if convicted; she even went so far as to point out that in the event of a conviction, Farhad might face additional disciplinary measures in state prison. Moreover, the district court informed Far-had about the "core functions" of an attorney that he would be expected to perform at trial, as well as the superior ability of a lawyer to handle those tasks. See Mohawk, 20 F.3d at 1484. Farhad was warned that he would be expected to ask questions, make arguments, and observe the rules of evidence and courtroom procedure. He was furthermore informed that there were resources, such as investigators and legal research tools, that were unavailable to him, but which were available to attorneys.

Despite the district court's numerous warnings and entreaties that he was "making it hard on himself," Farhad repeatedly stated that he understood but felt that he could provide a more effective defense. On this basis, the district court found as a matter of fact that Far-had's waiver was knowing and intelligent, a finding this court considers "influential." United States v. Robinson, 913 F.2d 712, 715 (9th Cir.1990). Moreover, the district judge revisited the issue on several occasions prior to trial, urging Farhad to change his mind. In each instance, Farhad insisted that he would represent himself. Thus, the record in this case conclusively demonstrates that Farhad sufficiently "understood his right to counsel and ... waived that right knowingly, intelligently, and voluntarily." Van Krieken, 39 F.3d at 230.

In addition to being knowing and intelligent, a valid waiver of the right to counsel must be unequivocal. See Van Krieken, 39 F.3d at 229; Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989). In Van Krieken, this court found a waiver to be unequivocal where the defendant repeatedly expressed to the court his desire to waive his right to counsel, and persisted in waiving his right even after being warned about the dangers and disadvantages of proceeding without an attorney. Under the circumstances, this court concluded that Van Krieken’s waiver was not a “mere whim or caprice” and was thus unequivocal. Van Krieken, 39 F.3d at 230 (citing Robinson, 913 F.2d at 714). Here, the district court, as in Van Krieken, repeatedly reminded Farhad of the hardships of self-representation and asked him whether he wanted to reconsider. Each time, Far-had reaffirmed his determination to act as his own attorney. As in Van Krieken, Farhad’s waiver was unequivocal.

Farhad was clearly appraised of the nature of the charges against him, the possible penalties he faced if convicted, and the dangers and disadvantages of undertaking his own representation. Nevertheless, he repeatedly expressed his wish to represent himself, and reiterated his sincere, if misguided and unrealistic, belief that he would offer a “more effective” defense than appointed counsel. Under the applicable precedents, his waiver was constitutionally sound.

II. The Merits of Faretta

Farhad next urges that his conviction should be reversed because Faretta was wrongly decided and should be overruled. The Supreme Court has for many years recognized the right to self-representation. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Recently, the Court extended the Faretta right to all defendants, even those who are mentally impaired, so long as they are "competent to stand trial." Godinez v. Moran, 509 U.S. 389, 399-400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Following the Supreme Court’s direction, this court has published dozens of opinions applying Faretta to proceedings in both federal and state courts. See, e.g., United States v. Keen, 96 F.3d 425 (9th Cir.1996); Arlt, 41 F.3d 516; Robinson, 913 F.2d 712; Savage v. Estelle, 908 F.2d 508 (9th Cir.1990); United States v. Kimmel, 672 F.2d 720 (9th Cir.1982). Thus, we are compelled by the overwhelming weight of these precedents to apply the law as it currently exists, and not as Farhad might have it.¹ Moreover, we decline Farhad’s invitation to offer an advisory opinion on the subject; that is simply not an appropriate exercise of this court’s discretion.

The judgment of the district court is AFFIRMED.

1 . We thus do not reach Farhad’s argument that were Faretta overruled, 28 U.S.C. § 1654 (granting defendants in federal cases the statutory right to self-representation) would violate the Sixth Amendment.