Filed: Aug. 01, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 11-14365 Date Filed: 08/01/2013 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 11-14365 _ D.C. Docket No. 1:06-cr-00358-RWS-ECS-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISMAEL ESTRADA, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Georgia _ (August 1, 2013) Before MARTIN and FAY, Circuit Judges, and EDENFIELD, * District Judge. PER CURIAM: * Honorable B. Avant Edenfield, Un
Summary: Case: 11-14365 Date Filed: 08/01/2013 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 11-14365 _ D.C. Docket No. 1:06-cr-00358-RWS-ECS-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISMAEL ESTRADA, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Georgia _ (August 1, 2013) Before MARTIN and FAY, Circuit Judges, and EDENFIELD, * District Judge. PER CURIAM: * Honorable B. Avant Edenfield, Uni..
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Case: 11-14365 Date Filed: 08/01/2013 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14365
________________________
D.C. Docket No. 1:06-cr-00358-RWS-ECS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL ESTRADA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 1, 2013)
Before MARTIN and FAY, Circuit Judges, and EDENFIELD, ∗ District Judge.
PER CURIAM:
∗
Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
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Defendant-Appellant, Ismael Estrada, appeals his convictions on fourteen
counts involving conspiracy to possess with intent to distribute cocaine and
marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii), (b)(1)(D), and 846; and
money laundering, in violation of 18 U.S.C. §§ 1956(h) and 1957. On appeal,
Estrada argues that the district court failed to conduct a thorough inquiry as to
whether he validly waived his right to counsel prior to trial. For the reasons that
follow, we affirm.
I.
This case involves the situation in which an uncooperative defendant
adamantly rejected his constitutional right to be represented by competent counsel,
but also refused to invoke affirmatively his right to self-representation. Estrada
was indicted on fourteen counts, including one count of conspiracy to possess with
intent to distribute at least 5 kilograms of cocaine and marijuana, in violation of 21
U.S.C. § 841(a)(1), one count of conspiracy to commit money laundering, in
violation of 18 U.S.C § 1956(h); and twelve counts of money laundering involving
proceeds from controlled substances, in violation of 18 U.S.C. § 1957. At his
arraignment, Estrada, represented by the office of Bruce Harvey, refused to enter a
plea, repeatedly stating “I’m accepting this for value. I’m accepting the charges.”
The court noted that it was entering a not-guilty plea on his behalf and told him to
be quiet. After Estrada protested that he had not pled not guilty, interrupted the
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court several times, and asserted his rights under the Uniform Commercial Code
(“UCC”), court personnel removed him from the courtroom.
Subsequently, Estrada, while still represented by counsel, began filing pro se
documents. The documents referenced the UCC and described him as a secured
party. Estrada also filed a document entitled “Revocation of Power of Attorney,”
which indicated that he wished to “revoke, cancel, and annul” the authority of his
attorney to act on his behalf.
During a pretrial conference, the court noted that Estrada had filed
documents that needed to be clarified prior to trial. Estrada asserted that he “was
under protest and [did] not consent to what’s taking place.” The court explained
that, because he was represented by counsel, his attorney was responsible for
presenting his legal arguments. Estrada responded that he was “firing counsel as
of today,” and “counsel is fired.” The court explained that it would not accept his
decision until he had time to confer with his attorney because of the risks involved
in proceeding without counsel. Estrada responded that he was unsuccessful in
contacting his counsel and had not seen her for 17 months. The court replied that it
thought Estrada should speak to counsel before he made a final decision, and
cautioned that:
[T]o choose to proceed and represent yourself may not be the way to
deal with that because you are taking [a] substantial risk, and you
obviously have a great deal at stake in terms of the consequences [if]
you [are] found guilty of these charges.
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I can tell you now [that] I am going to strongly discourage you from
choosing to release your counsel. But I will also say to you now that
ultimately that will be your decision because our Constitution and
laws give you the right to do that, but only after I am convinced that
you understand what you are doing and particularly that you
understand the consequences which in this case are extremely serious
and particularly when you are represented by very able counsel as you
are in this case.
(Emphasis added). Estrada’s counsel, Elizabeth Hanson from the office of Bruce
Harvey, asserted that she actually had visited him in the past year, including when
she was on maternity leave. Estrada then referenced the UCC. The proceedings
concluded at that point.
Four days prior to trial, the court verified Estrada’s termination of his
counsel’s representation. The court questioned whether Estrada wanted to
represent himself or whether he was seeking new counsel. Rather than answering
the court’s questions, Estrada responded that he reserved his rights and again
mentioned the UCC. The court explained that Estrada’s case was a criminal case,
not a commercial case. After Estrada continued to reference the UCC, the court
again questioned whether he wanted to represent himself. However, Estrada was
uncooperative. Estrada responded that he was not doing business with the court
and was not under contract with the court.
At that point, the district court excused the government and conducted an ex
parte inquiry of Estrada and his counsel. The court informed Estrada that its
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obligation was to ensure that he understood the risks of representing himself. The
court explained that he was a defendant in a criminal case and had been indicted by
the grand jury and charged with very serious charges, for which he faced a
potential life sentence. The court informed Estrada that he had one opportunity—a
jury trial—to contest the charges and require the government to prove his guilt
beyond a reasonable doubt. If the government carried its burden, he would be
convicted and face the possibility of life imprisonment.
Additionally, the court explained that Estrada had a constitutional right to
counsel and the right to represent himself. The court stated that the choice was
entirely up to him, but also cautioned Estrada that it is a “tremendous burden to
present a case . . . [and] even [lawyers] sometimes struggle . . . .”
The court further advised Estrada of the risks of self-representation. The
court told Estrada that “it’s a tremendous risk . . . [to] represent yourself . . . .” For
example, Estrada did not understand criminal trial and courtroom procedure
because he had not been trained in the law or attended law school. The court told
Estrada that a lawyer would be knowledgeable about the rules of evidence,
including presenting evidence, ensuring the government followed the rules of
evidence, making objections, properly questioning witnesses, and preserving the
record for appeal. The court cautioned that Estrada might fail to preserve issues
for appeal.
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Finally, the court stated that Estrada had no basis to assert any rights or
claims under the UCC, so he could not mention the UCC during the criminal trial.
The court explained to Estrada that a lawyer would be helpful in providing other
defenses to him that would pertain to a criminal trial.
Thereafter, the court asked Estrada if he wanted to speak with counsel
regarding whether he should represent himself. Estrada did not answer the
question, but stated that fraud had been committed. The court repeated the
question, but both times Estrada was uncooperative. Therefore, the court stated
that it would construe Estrada’s answers to indicate that he did not wish to speak
with counsel.
The court then continued to ask Estrada whether he intended to represent
himself. Instead of responding, Estrada requested the matter to be turned over to
homeland security. Estrada further indicated that he was under duress and
coercion. The court denied the request and again asked whether he intended to
represent himself. Estrada responded that his business with the court was finished.
Consequently, the court asked Estrada’s counsel, Hanson, to serve as standby
counsel at trial, and she agreed to do so.
Four days later, a jury trial commenced. During trial, Estrada gave an
opening statement, successfully made numerous objections during the
government’s case-in-chief, cross-examined witnesses, invoked the rule of
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sequestration, and conferred with standby counsel Hanson.1 Estrada consulted
with Hanson extensively throughout his trial, receiving advice on, inter alia,
cross-examining witnesses, admitting exhibits, and deciding whether to testify on
his own behalf.
Following deliberations, the jury found Estrada guilty on all fourteen counts
of the indictment. The court sentenced Estrada to 360 months’ (30 years)
imprisonment as to count one and 240 months’ imprisonment on counts two
through fourteen, with the sentences running concurrently.
II.
A district court’s determination of whether 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) (citation omitted). We have noted that “[a] defendant who chooses to
proceed pro se is not entitled to special treatment on appeal. If a pro se defendant
fails to properly preserve an issue for appeal, we will set aside the conviction only
1
During cross-examination of the government’s witnesses, Estrada inadvertently elicited a
number of damaging statements.
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if the trial court committed plain error.” See United States v. Chaney, 662 F.2d
1148, 1151-52 n.4 (5th Cir. Unit B 1981).2
III.
Estrada, now represented by counsel, argues that his convictions are invalid
because the court did not conduct a thorough inquiry into whether he waived his
right to counsel knowingly, voluntarily, and intelligently. We disagree.
Under the Sixth Amendment to the United States Constitution, criminal
defendants have both the right to counsel and the right to represent themselves.
Faretta v. California, 422 U.S. 806, 834 (1975). A defendant can decline his right
to counsel, and consequently assert his right to represent himself, by “knowingly
and intelligently” waiving the right to counsel.
Id. at 835. However, when a
defendant chooses self-representation, “he should be made aware of 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.’”
Id. (citation
omitted); see also United States v. Garey,
540 F.3d 1253, 1266 (11th Cir. 2008)
(en banc) (“In order for a defendant to validly waive his right to counsel, his choice
must be knowing, as well as voluntary.”).
2
All Fifth Circuit Unit B decisions rendered after October 1, 1981, operate as binding precedent
in the Eleventh Circuit. United States v. Maxwell,
579 F.3d 1282, 1305 n.6. (11th Cir. 2009)
(citing Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981)).
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“[T]he ‘ideal method’ of assuring that a defendant understands the
consequences of a waiver is for the trial court to conduct a pretrial hearing.”
Kimball, 291 F.3d at 730. This hearing is commonly known as a “Faretta
inquiry,” where the court “inform[s] the defendant of the nature of the charges
against him, possible punishments, basic trial procedure and the hazards of
representing himself.”
Id. (citation omitted). “If the trial record demonstrates that
[the defendant’s] decision to represent himself was made with an understanding of
the risks of self-representation, the knowing, intelligent, and voluntary waiver
standard of the Sixth Amendment will be satisfied.” Fitzpatrick v. Wainwright,
800 F.2d 1057, 1065 (11th Cir. 1986).
In Fitzpatrick, we identified several factors to consider in determining
whether a defendant has knowingly, voluntarily and intelligently chosen to
represent himself:
1) the defendant’s age, health, and education; 2) the defendant’s
contact with lawyers prior to trial; 3) the defendant’s
knowledge of the nature of the charges and possible defenses
and penalties; 4) the defendant’s understanding of the rules of
evidence, procedure and courtroom decorum; 5) the defendant’s
experience in criminal trials; 6) whether standby counsel was
appointed and, if so, the extent to which standby counsel aided
in the trial; 7) any mistreatment or coercion of the defendant;
and 8) whether the defendant was attempting to manipulate the
trial.
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Kimball, 291 F.3d at 730-31 (citing United States v. Cash,
47 F.3d 1083, 1088-89
(11th Cir. 1995);
Fitzpatrick, 800 F.2d at 1065-67). “All factors need not point in
the same direction.”
Cash, 47 F.3d at 1089 (citation omitted).
In addition to an express waiver, a defendant may waive counsel by his
conduct, even without any affirmative request to proceed pro se. Garey, 540 F.3d
at 1265. Since Faretta, we have noted that Faretta “presupposed a cooperative
defendant willing to engage in reciprocal dialogue with the court. The Supreme
Court has never confronted a case in which an uncooperative defendant has refused
to . . . engage in a colloquy with the court.”
Garey, 540 F.3d at 1263. In Garey,
we addressed the situation in which an uncooperative defendant rejected counsel,
but also refused to affirmatively invoke his right to self-representation.
Id. at 1257.
There, the defendant was represented by appointed counsel, and although he
submitted numerous pro se filings, he did not expressly request that his counsel be
terminated and new counsel appointed due to an alleged conflict of interest until
shortly before trial.
Id. 1259 & n.2. After concluding that no conflict existed, the
district court asked Garey several times whether he wanted to continue with the
same attorney or represent himself and explained the risks of self-representation.
Id. at 1259. Instead of responding to the question, Garey reiterated his conflict of
interest argument and stated that he was not voluntarily waiving his right to
counsel, but did not want his current attorney to represent him.
Id. at 1259-62.
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On appeal, we held that if a defendant refuses the services of competent,
conflict-free counsel, then he can waive his right to counsel through his
uncooperative behavior if he makes the decision with awareness of his options and
the potential consequences. Id. at 1267. The “best practice” was for a district
court to first try to engage the defendant in a Faretta discussion, but if he “refuses
to provide clear answers to questions regarding his Sixth Amendment rights, it is
enough for the court to inform the defendant unambiguously of the penalties he
faces if convicted and to provide him with a general sense of the challenges he is
likely to confront as a pro se litigant.”
Id. In that situation, a “Faretta-like
monologue” would be sufficient.
Id. at 1267-68.
In this case, the district court did not err by allowing Estrada to proceed pro
se because the record shows that, through his uncooperative conduct and the
court’s explanation, Estrada waived his right to counsel. Although Estrada did not
clearly and unequivocally assert the right of self-representation, the court complied
with Garey by first attempting to conduct a normal Faretta hearing, and
subsequently resorting to a “Faretta-like monologue” after Estrada repeatedly
refused to answer questions about whether he wanted to represent himself. The
court explained to Estrada that representing himself was a “substantial risk” and
because the potential consequences were serious, it would only accept his decision
if convinced that he understood the ramifications. The court further explained that:
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(a) he only had one opportunity for a trial; (b) he faced a possible life sentence if
convicted; (c) his case was a criminal case, not a commercial case; (d) he had a
right to decide whether to represent himself; (e) there were many ways a lawyer
would be helpful; and (f) he might fail to properly preserve issues of appeal.
Accordingly, Estrada’s uncooperative behavior, combined with the district court’s
thorough explanation of the risks of self-representation, constituted a valid waiver.
Garey, 540 F.3d at 1265.
Nevertheless, Estrada argues that the court’s Faretta–like monologue did not
adequately warn him about the risks of self-representation because the district
court asked only “scant questions” and failed to satisfy the eight factors described
in Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir. 1986). We disagree.
As to the first Fitzpatrick factor—the defendant’s age, health, and
education— Estrada was approximately 47 years old, and although the record does
not indicate the extent of his education, it appears that he had enough business
savvy to structure complex financial transactions involved in this case. There is
also no indication in the record that he suffered from any mental or physical health
problems which may have affected his ability to comprehend the proceedings.
Therefore, the first Fitzpatrick factor supports the district court’s decision.
The second Fitzpatrick factor—the defendant’s contact with lawyers prior to
trial—similarly supports the district court’s decision. Estrada had been represented
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by his attorney since his first indictment in 2006 involving the same offenses, 3 five
years before the Faretta proceeding. Estrada contended that his attorney failed to
maintain contact with him, but there was no evidence on that point other than his
assertions. On the contrary, his attorney, Hanson, indicated that she had visited
Estrada, and as his attorney filed numerous motions on Estrada’s behalf. The court
specifically noted that his counsel was competent and gave Estrada numerous
opportunities to confer with counsel before it decided that he could represent
himself. Accordingly, this factor supports the district court’s decision.
As to the third Fitzpatrick factor—the defendant’s knowledge of the nature
of the charges, possible defenses, and penalties—Estrada had been facing the same
charges for five years at the time of the court’s Faretta determination, and the
court explained that the charged offenses were very serious, his freedom was at
risk, and he could potentially be sentenced to life in prison. Moreover, at his
arraignment, the magistrate judge confirmed that Estrada had a copy of his second
superseding indictment that listed the government’s charges against him. And
although the court did not explicitly inform Estrada about the available defenses, it
explained that an attorney would be knowledgeable about how to assert defenses,
which was knowledge that he likely did not have. The court also cautioned that his
3
This appeal arises from Estrada’s convictions for the offenses listed in the government’s second
superseding indictment.
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current UCC defense was not relevant to the criminal proceedings. Therefore, this
Fitzpatrick factor weighs in favor of the district court’s decision.
The fourth factor—the defendant’s understanding of the rules of evidence,
procedure, and courtroom decorum—similarly weighs in favor of the district
court’s decision. The court’s explanation about the implications of
self-representation provided sufficient awareness of courtroom procedure and legal
rules. The court expressly noted that Estrada had no legal training and had not
attended law school, so he lacked the knowledge that an attorney could provide.
The court further warned him that a lawyer would know the rules of evidence,
including how to get evidence admitted, ensure that the government followed the
rules, make objections, properly question witnesses, and preserve issues for appeal.
Additionally, the court warned him that defending an accused at a criminal trial
was a “tremendous burden,” even for attorneys, so he needed to realize that he
faced a “tremendous risk.” This “Faretta-like monologue” provided ample notice
of how Estrada’s lack of legal knowledge could put him at risk if he chose to
represent himself at trial.4
Furthermore, Estrada showed his understanding of courtroom procedure by
submitting voir dire questions, presenting opening and closing statements,
4
We note that Estrada’s continued reliance on the UCC, even after he was explicitly warned that
the UCC had no application in his criminal case, could suggest that he was not enlightened by
the court’s admonitions.
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consulting with standby counsel, making numerous objections during the trial
(fourteen of which were sustained), cross-examining witnesses, and invoking the
rule of sequestration. Although Estrada inadvertently elicited a number of
damaging statements on cross-examination, the relevant issue is not how well he
performed as a legal advocate, but whether he made the decision to represent
himself with an awareness of the risks. Kimball, 291 F.3d at 731. Therefore, the
fourth Fitzpatrick factor supports the court’s decision.
The fifth factor—the defendant’s experience in criminal trials—weighs
against allowing Estrada to represent himself. Although Estrada was convicted of
a drug offense in 1988, he entered a guilty plea and did not have a jury trial. See,
e.g., Kimball, 291 F.3d at 731 (discussing the defendant’s courtroom experience in
a felony case). Nevertheless, “[a]ll factors need not point in the same direction.”
Cash, 47 F.3d at 1089.
Regarding the sixth factor—whether standby counsel was appointed and, if
so, the extent to which standby counsel aided in the trial—the court appointed
Estrada’s former attorney, who had been representing him for more than five years,
to serve as standby counsel. Estrada consulted with her extensively throughout his
trial, receiving advice on, inter alia, cross-examining witnesses, admitting exhibits,
and deciding whether to testify on his own behalf. The district court also expressly
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noted that his counsel was exceedingly competent. Thus, the sixth Fitzpatrick
factor weighs in favor of the district court’s decision.
The seventh factor—any mistreatment or coercion—also supports the
district court’s decision. Although Estrada asserted that he was under duress and
coercion, these statements, considered in context, appear to reflect his general
dissatisfaction with the proceedings rather than any specific harassment or threats,
and there was no evidence in the record of any such conduct. The court also
repeatedly reminded Estrada that he had a right to choose between appointed
counsel or self-representation. Therefore, this factor supports the court’s decision.
Finally, as to the eighth factor—whether the defendant was attempting to
manipulate the trial—the district court could have concluded that Estrada was
attempting to obstruct or delay the proceedings by: (a) insisting on representing
himself only days prior to trial; (b) continually referencing the UCC; (c) filing
numerous pro se documents while represented by counsel; (d) evading the court’s
questions; and (e) stating that his business with the court was finished.
In conclusion, Estrada’s waiver of his right to counsel and decision to
proceed pro se was made knowingly, intelligently, and voluntarily. Estrada
expressly stated that he wanted to terminate his attorneys and “revoke” their
authorization to act on his behalf. His uncooperative behavior, combined with the
district court’s thorough explanation of the risks of self-representation, created a
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valid waiver. As evidenced by the Fitzpatrick factors, Estrada waived his right to
assistance of counsel knowingly, voluntarily, and intelligently.
Accordingly, this Court affirms.
AFFIRMED.
17
