United States v. Woodward

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MARCH 31, 2011
No. 10-13097 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:09-cr-00547-EAK-MAP-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELLO WOODWARD,
a.k.a. Ello Woodard,
a.k.a. Don Juan Powers,
a.k.a. Tom Card,
a.k.a. Michael Rookes,
a.k.a. Carl Hale,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 31, 2011)
Before BARKETT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Ello Woodward appeals his conviction for (i) conspiracy to possess with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(ii) and 846 (Count One); (ii) attempt to possess with intent
to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(B)(ii) and 846 (Count Two); (iii) possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count Three); and (iv) possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Five). On
appeal, Woodward argues that the district court’s waiver colloquy was legally
insufficient to support a conclusion that he knowingly, intelligently, and
voluntarily waived his Sixth Amendment right to counsel and chose to proceed
pro se, and, as a corollary, that the court failed to properly inquire into whether a
substitute attorney should have been appointed for Woodward.
A district court’s determination that a defendant’s waiver of his Sixth
Amendment right to assistance of counsel is valid is a mixed question of law and
fact that we review de novo. United States v. Kimball, 291 F.3d 726, 730 (11th
Cir. 2002). On direct appeal, the government bears the burden of proving that the
waiver was valid. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995).
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We have explained that the right to self-representation is a constitutional
right which is closely tied to the right to representation by counsel. See United
States v. Garey, 540 F.3d 1253, 1262-63 (11th Cir. 2008) (en banc). While the
Sixth Amendment guarantees the right to assistance of counsel, it does not give
indigent defendants the unqualified right to counsel of their choice. Id. at 1263-
64. However, upon a showing of good cause, an indigent defendant may receive
substitute appointed counsel. Id. at 1263. “Good cause” is limited to fundamental
problems, “such as a conflict of interest, a complete breakdown in communication
or an irreconcilable conflict which leads to an apparently unjust verdict.” Id.
(quotation omitted). A general loss of confidence or trust in counsel, standing
alone, does not amount to good cause. Thomas v. Wainwright, 767 F.2d 738, 742
(11th Cir. 1985) (habeas context).
Upon review of the record and consideration of the parties’ briefs, we
affirm. A review of the record in light of the relevant factors indicates that
Woodward’s waiver of his Sixth Amendment right to counsel and decision to
proceed pro se was knowing, intelligent, and voluntary. Woodward unequivocally
expressed his desire to proceed pro se on at least three separate occasions (and
knew that he could reconsider his decision to proceed pro se at anytime), had
continual contact and assistance from the appointed counsel before trial and
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during the trial as standby, was aware of the charges against him, had a general
understanding of the rules of the court, had a lengthy criminal history, claimed to
have legal knowledge, and appeared to acknowledge the hazards of self-
representation. Moreover, he argued the merits of his pre-trial motions (citing
both cases and statutes), cross-examined witnesses, and made objections.
In addition, the district court did not have to inquire into whether a
substitute counsel should have been appointed for Woodward, or whether a total
breakdown in communication had occurred between Woodward and his counsel,
because Woodward never moved for appointment of new counsel, and the district
court had no reason to replace Woodward’s original counsel. Woodward failed to
show good cause for substitution of counsel, and the court determined that
Woodward’s counsel was a qualified and competent attorney with experience in
criminal law.
AFFIRMED.
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