United States v. Fe Garrett

FILED
NOT FOR PUBLICATION DEC 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50118
Plaintiff - Appellee, D.C. No. 3:08-cr-00918-L-1
Southern District of California,
v. San Diego
FE S. GARRETT,
MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted December 5, 2011
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
Fe S. Garrett was convicted for aiding and assisting in the preparation of
false tax returns, filing false income tax returns, and willful failure to pay tax. She
was sentenced to 65 months imprisonment and now appeals her conviction and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentence. We affirm.
Garrett first argues that she is entitled to a new trial because the prosecutor
struck F.M., the only Filipino juror on the venire, in violation of Batson v.
Kentucky, 476 U.S. 79 (1986). Steps one and two of the Batson framework are not
in dispute. Only step three of the Batson inquiry is at issue and thus the sole
question is whether the trial court clearly erred in concluding that there was no
purposeful discrimination. Tolbert v. Page, 182 F.3d 677, 680 n.5 (9th Cir. 1999).
We conclude that the district judge did not clearly err. The prosecutor’s proferred
reasons for striking F.M. were his youthful age and lack of employment history.
The government alleged it sought jurors who had a history of working and filing
taxes, experience relevant to the critical issues in this tax fraud case. The
prosecutor’s race-neutral explanations were permissible and plausible.
Garrett next contends that a new trial is warranted because the prosecutor
made statements in her closing argument that constituted improper vouching.
Because defense counsel objected to the statements at trial, our review is for abuse
of discretion. United States v. Sarkisian, 197 F.3d 966, 988 (9th Cir. 1999).
Garrett complains of three statements made during the prosecution’s rebuttal
argument. At least one of the statements is an argument from evidence properly
before the jury. Even assuming the second and third statements, one of which the
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government concedes constitutes prosecutorial vouching, were improper, any error
was harmless in light of the independent and overwhelming evidence against
Garrett, including a tape-recorded conversation where she made incriminating
statements and numerous witnesses’ testimony that corroborated the government’s
investigation.
Garrett’s third argument is that her waiver of her right to counsel at
sentencing was not “knowing, intelligent, and unequivocal.” United States v.
Farhad, 190 F.3d 1097, 1099 (9th Cir. 1999). Garrett’s statements make clear that
she wanted to represent herself because the district court was unwilling to provide
her with new counsel. But that fact alone does not compel the conclusion that her
request was equivocal. See Adams v. Carroll, 875 F.2d 1441, 1444-45 (9th Cir.
1989); United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000). Garrett
repeatedly and articulately requested to proceed pro se. The trial judge engaged
Garrett in a meaningful and extensive dialogue on the inherent drawbacks of self-
representation. He also explained that she has no right to counsel of her choice.
There is no evidence that Garrett’s request was impulsive or the product of whim
and caprice. Considering the “record as a whole,” Garrett’s request to represent
herself was clear and unequivocal. See United States v. Gerritsen, 571 F.3d 1001,
1008 (9th Cir. 2009) (“We have explained that a defendant’s waiver must be
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evaluated in light of the record as a whole.” ).
Finally, Garrett argues that the district court erred by denying her request for
a continuance to allow her to prepare for sentencing. District courts have broad
discretion on matters of continuance. United States v. Flynt, 756 F.2d 1352, 1358
(9th Cir. 1985). The district judge had previously granted a continuance to provide
Garrett more time. Nothing in the record suggests that the trial court’s denial of
Garrett’s second request for a continuance was arbitrary or unreasonable.
AFFIRMED.
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