United States v. Duane McAtee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4693
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DUANE PHILIP MCATEE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:13-cr-00102-IMK-JSK-1)
Submitted: March 12, 2015 Decided: March 19, 2015
Before KING, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Kristen M. Leddy,
Research and Writing Specialist, Clarksburg, West Virginia, for
Appellant. William J. Ihlenfeld, II, United States Attorney,
Paul T. Camilletti, Anna Z. Krasinski, Assistant United States
Attorneys, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duane McAtee appeals from his convictions for obstructing
the administration of federal tax laws and two counts of failure
to file a tax return. On appeal, McAtee argues that the
district court erred in allowing him to represent himself at
trial because the magistrate judge did not appropriately advise
and warn McAtee on the record. Moreover, McAtee claims that his
continued reliance on discredited legal theories demonstrated
his lack of sophistication. We affirm.
The Sixth Amendment guarantees not only the right to be
represented by counsel but also the right to
self-representation. Faretta v. California, 422 U.S. 806, 819
(1975). The decision to represent oneself must be knowing and
intelligent, id. at 835, and courts must entertain every
reasonable presumption against waiver of counsel. Brewer v.
Williams, 430 U.S. 387, 404 (1977). The record must show that
the waiver was clear, voluntary, knowing, and intelligent.
United States v. Bernard, 708 F.3d 583, 588 (4th Cir.), cert.
denied, 134 S. Ct. 617 (2013).
While a district court must determine whether a waiver of
counsel is knowing and intelligent, no particular interrogation
of the defendant is required, as long as the court warns the
defendant of the dangers of self-representation so that “‘his
choice is made with his eyes open.’” United States v. King,
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582 F.2d 888, 890 (4th Cir. 1978) (quoting Faretta, 422 U.S. at
835). “The determination of whether there has been an
intelligent waiver of right to counsel must depend, in each
case, upon the particular facts and circumstances surrounding
that case, including the background, experience, and conduct of
the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938);
see United States v. Singleton, 107 F.3d 1091, 1097-98 (4th Cir.
1997) (court must consider record as a whole, including the
defendant’s background, capabilities, and understanding of the
dangers and disadvantages of self-representation). *
Here, we find that the district court did not err in
granting McAtee’s request to waive counsel and to represent
himself. An examination of the record demonstrates that
McAtee’s election to proceed pro se was clear, knowing,
intelligent, and voluntary. While the district court’s colloquy
was brief, the truncated nature of the discussion was due to
*
The parties disagree about the applicable standard of
review. Compare Singleton, 107 F.3d at 1097 n.3 (“Determination
of a waiver of the right to counsel is a question of law, and
thus we review it de novo.” (internal citations omitted)), with
Bernard, 708 F.3d at 588 & n.7 (applying plain error review
because Appellant raised the issue of competency to waive the
right to counsel for the first time on appeal). However,
because McAtee’s argument fails under either standard, we
decline to reach the issue here. See, e.g., United States v.
Stanley, 739 F.3d 633, 645 (11th Cir.) (declining to select a
standard of review when a defendant's challenge to the validity
of his waiver of right to counsel failed under both plain error
and de novo review), cert. denied, 134 S. Ct. 2317 (2014).
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McAtee’s refusal to answer questions or confirm certain facts of
record. Moreover, it is undisputed that McAtee, who possessed a
graduate degree, had recently represented himself at a related
proceeding, which ended in a conviction and period of
incarceration. This previous waiver of counsel also followed a
colloquy, thus further ensuring that McAtee was aware of the
risks and difficulties involved in representing himself. In
addition, the trial court repeatedly suggested that McAtee
consult with stand-by counsel, reminding McAtee throughout the
proceedings of the technicalities involved and the expertise of
counsel, and stand-by counsel took an active role in the
proceedings.
McAtee’s argument that his meritless defense was evidence
of the fact that he was not qualified to represent himself is
unavailing. “[T]he competence that is required of a defendant
seeking to waive his right to counsel is the competence to waive
the right, not the competence to represent himself.” Godinez v.
Moran, 509 U.S. 389, 399 (1993) (internal emphasis omitted).
Furthermore, “the defendant’s technical legal knowledge is not
relevant to the determination whether he is competent to waive
his right to counsel.” Id. at 400 (internal quotation marks
omitted). Finally, the Supreme Court has noted that “while it
is undeniable that in most criminal prosecutions defendants
could better defend with counsel’s guidance than by their own
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unskilled efforts, a criminal defendant’s ability to represent
himself has no bearing upon his competence to choose
self-representation.” Id. (internal quotation marks,
alteration, citation, and emphasis omitted). As McAtee does not
challenge his competence to stand trial and waive his
constitutional rights, his claim is without merit, and the
record reflects no error.
Accordingly, we affirm McAtee’s convictions. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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