HARTZ, Circuit Judge.
Defendant Casimiro Loya-Rodriguez appeals his conviction and sentence in the United States District Court for the District of Colorado for the offense of illegal reentry after deportation subsequent to an aggravated felony conviction. See 8 U.S.C. § 1326(a), (b)(2). He contends that the district court denied his Sixth Amendment right to represent himself both at trial and at sentencing. We affirm Defendant's conviction because he failed to make a clear and unequivocal request to represent himself at trial. But we remand to the district court to vacate his sentence and then resentence him because he did make such a request to represent himself at sentencing.
The proceedings against Defendant began unremarkably. At his initial appearance on October 21, 2009, the magistrate judge appointed counsel to represent him. After the interpreter was sworn and Defendant was advised of his rights, the charge against him, and the potential penalties, the relevant discussion was brief:
But then difficulties arose. On November 30, 2009, Ms. Yunker filed a motion to determine Defendant's competency. She stated that she had reasonable cause to believe that Defendant was suffering from a mental disease and requested a psychological evaluation. The district court ordered one and Defendant was evaluated at the federal detention facility where he was being held. According to the report by Dr. Jeremiah Dwyer dated January 12, 2010, Defendant initially cooperated and engaged in conversation but once he was told that the evaluation process would begin, he refused to participate, "indicating that no one helped him in the past, so now he would not help the evaluators." R., Vol. 1 at 48. The report also noted, however, that the staff at the facility reported that Defendant had been cooperative and responsive on matters of medical care and when he wanted something. The report concluded that although Defendant's behavior could stem from cognitive deficits, it was also possible that Defendant was voluntarily refusing to cooperate.
At a status conference on January 14, Ms. Yunker told the district court of her inability to communicate with her client: "I have advised [Defendant] obviously of his ability to testify at a competency hearing and call witnesses, but I had no response from him, which has been the pattern in my representation of him." Id., Vol. 3 pt. 1 at 18. The court set the matter for a competency hearing on January 20.
At the hearing the following colloquy took place:
Id. at 30-31. Defendant was similarly disrespectful of his interpreter, who at one point reported to the court that Defendant "has indicated that I should be quiet or otherwise he is going to do something." Id. at 34. The district court found that "[b]ased upon the evidence that has been submitted through the report of [the psychologist], it appears that if anything, [Defendant] is competent. He just simply chooses not to cooperate." Id. at 29. And it ruled that "the standard of incompetency has not been shown by a preponderance of the evidence." Id. at 39.
The next day Ms. Yunker filed a motion to withdraw. It revealed that at her first meeting with Defendant, he expressed his belief that the public defender's office was conspiring with the government; thereafter, "there [was] no communication between the lawyer and the client, reasonable or otherwise." Id., Vol. 1 at 31. The motion requested appointment of private counsel.
Ms. Yunker met again with Defendant on January 27; but the meeting simply led her to file a motion requesting another psychological examination and competency hearing. According to the motion, the meeting had been as unfruitful as the first one. Defendant initially refused to go into the visiting room of the detention center to
In a February 2 order the district court denied the motion to withdraw. It said:
Id. at 50 (citation omitted). The following week the court held a hearing on the motion for psychological examination and found, based on defense counsel's assertions, that there was reasonable cause to believe that Defendant was suffering from mental illness rendering him incompetent. On March 5 it ordered an evaluation at a federal medical center.
On April 30 Ms. Yunker withdrew because of her retirement, and Edward Pluss, also from the public defender's office, replaced her. The district court conducted a competency hearing on June 29 to consider the medical-center evaluation report. The report stated that Defendant had refused to participate in several components of the evaluation. Nevertheless, it noted that Defendant had the ability to interact appropriately with medical-center staff at times and concluded that he was competent to stand trial. Mr. Pluss also reported Defendant's failure to interact, but argued that this behavior showed incompetence to stand trial. He said: "I have now three times attempted to communicate with [Defendant] in an attorney/client fashion on an attorney/client basis in order to represent him as an attorney. He has not responded to me any of the three times. ..." Id., Vol. 3 pt. 1 at 62. Despite defense counsel's statement, the district court ruled that the second psychological evaluation showed Defendant to be competent to stand trial. It stated: "The fact that he has chosen not to communicate with Mr. Pluss is simply something that [Defendant] has decided to do on his own. It's not a product of any type of mental disease or defect." Id. at 70.
Two days later, on July 1, Mr. Pluss moved to withdraw and, for the first time, requested that the district court allow Defendant to proceed pro se. The motion reiterated counsel's concern that his three requests to meet with Defendant had been rebuffed, and asserted that Defendant's actions communicated a clear and unequivocal request to represent himself. Stating that it was unable to infer from the circumstances that Defendant wished to represent himself, the court promptly denied the motion. It also noted that "[s]elf-representation would entail communicating with the court and with government counsel, which, for the same reasons that defendant is apparently not talking to his own attorney, the defendant is probably unwilling to do." Id., Vol. 1 at 84.
On July 24 Defendant submitted a letter to the district court. The letter was written in Spanish but was translated for the court as follows:
Id. at 174 (emphasis added). On August 2 his attorney, relying on Defendant's letter, filed a renewed motion to withdraw. These matters were considered at a pretrial hearing on August 3. At the outset the district court offered Defendant an opportunity to address the court about his letter, saying:
Id., Vol. 3 pt. 1 at 77. The transcript of the proceeding does not indicate how long the court waited for a response, but it continues:
Id.
The district court then turned to defense counsel's motion to withdraw. Mr. Pluss told the court that he had met with Defendant again but failed in his attempt to talk to Defendant about the case, that he had concerns about Defendant's competency, and that Defendant should be allowed to proceed pro se. The government countered that Defendant still had not invoked his right to self-representation:
Id. at 81.
The district court denied the motion. It reasoned that Defendant's letter indicated that "he wants to be out of sight and hearing of his attorney, but doesn't anywhere request that he represent himself," id. at 83; and "given [Defendant's] refusal to communicate with the Court, it would be extremely difficult to establish whether he was knowingly and voluntarily wishing to represent himself." Id.
Later that day defense counsel filed a motion to continue trial so that he could hire an independent expert to conduct a psychological examination. In support of his belief that Defendant was mentally ill, he referred to the above-mentioned meeting when he was unable to direct Defendant's attention to the pending trial. On August 4 the district court denied the motion, explaining that the psychological examinations indicated that Defendant's behavior was part of a general hostility toward attorneys.
Trial began on August 9. Defense counsel orally renewed his motion to continue, but the district court denied the request
On December 21, while awaiting sentencing, Defendant submitted another letter to the district court (this time, handwritten in full in both Spanish and English). It said:
Id., Vol. 1 at 281 (emphasis added). The court construed the letter as a motion for an order to proceed pro se and immediately denied the request in a minute order without explanation.
Defendant again raised the issue at his sentencing hearing on January 14, 2011, even before the district court called the case. The proceedings began as follows:
Id., Vol. 3 pt. 2 at 428-430 (emphasis added). Defense counsel, in a more seemly manner, then pursued the same issue:
Id. at 430-31. The court responded:
Id. at 431-32 (emphasis added). The court then held the continued hearing on January 18 and sentenced Defendant to 57 months' imprisonment.
On appeal Defendant argues that the district court denied his right of self-representation because he made a clear and unequivocal request to proceed pro se before trial and before sentencing.
In Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that the Sixth Amendment affords a criminal defendant the right to proceed without counsel. It acknowledged, however, that this right "cut[s] against the grain of [the] Court's decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel," id. at 832, 95 S.Ct. 2525, and it recognized that in most instances self-representation is inferior to representation by an attorney, see id. at 834, 95 S.Ct. 2525. It therefore cautioned that courts must ensure that the choice of proceeding without counsel is made "knowingly and intelligently" after the defendant is "made aware of the dangers and disadvantages of self-representation." Id. at 835, 95 S.Ct. 2525 (internal quotation marks omitted). Accordingly, we have held that a defendant can represent himself only when four conditions are satisfied:
United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir.2006) (citations and internal quotation marks omitted). The only requirement relevant to this appeal is the first one—that the defendant "clearly and unequivocally" invoke the right to represent himself.
A district court's finding that a defendant's request for self-representation was not clear and unequivocal is a finding of fact reviewed for clear error. See United States v. Mackovich, 209 F.3d 1227, 1236 (10th Cir.2000). We review de novo, however, whether a Sixth Amendment violation occurred. See id.
Defendant contends that his right to self-representation at trial was clearly and unequivocally invoked by his attorney's motion of July 1, 2010; his consistent rejection of counsel's services; and his pretrial letter to the court. In our view,
The July 1 motion based the request for pro se representation on the following:
R., Vol. 1 at 69. The motion argued that the district court "should view [Defendant's] conduct as a clear and unequivocal assertion of his intention to proceed pro se in these proceedings. Through the Defendant's conduct, it is obvious to undersigned counsel—as it should be obvious to this Court—that he does not wish to have the assistance of counsel." Id. at 70-71 (citation omitted). In denying the motion, the court wrote:
Id. at 83-84 (citation omitted). This was a reasonable assessment of the situation. Nowhere in counsel's motion did he indicate that Defendant had expressed a desire to represent himself. On the contrary, it says that counsel had not succeeded in communicating with Defendant. A pleading by an attorney who has not discussed the matter with his client can hardly be a clear and unequivocal invocation by the client of a desire to represent himself.
Defendant cites United States v. McKinley, 58 F.3d 1475, 1480-81 (10th Cir.1995), in which we held that a motion by defense counsel unequivocally invoked the client's right to self-representation. But that case is readily distinguishable, because it was not disputed that the attorney was articulating a position communicated by his client. Indeed, the defendant had orally demanded in open court the right to represent himself. See id. at 1479. McKinley does not stand for the proposition that an attorney who has not communicated with his client can nevertheless invoke his client's right to self-representation.
Nor did Defendant's pretrial conduct amount to a waiver of his right to counsel. The refusal to communicate with counsel does not necessarily imply a desire to represent oneself. It may result from a desire for different counsel; or it may reflect a decision not to participate in the proceedings, letting counsel do what he feels he must but not deigning to acknowledge the legitimacy of what is going on. As the district court noted, Defendant might well not have been interested in self-representation
Defendant relies on United States v. Taylor, 113 F.3d 1136 (10th Cir.1997), for the proposition that "a refusal without good cause to proceed with able appointed counsel is a voluntary waiver." Id. at 1140 (internal quotation marks omitted). But the issue in Taylor was whether the defendant's waiver was voluntary, see id., not whether the right to self-representation had been invoked in the first instance. The sentence quoted by Defendant related to whether a waiver could be said to be voluntary if the defendant's choice was only between representing himself or being stuck with incompetent counsel. See id. Also, Defendant's opening brief quotes United States v. Willie, 941 F.2d 1384, 1390 (10th Cir.1991), for the proposition that "a defendant's `continuous stubborn refusal to accept the services of admittedly competent and available counsel' indicates `an implied waiver of [defendant's] right to counsel' and a desire to represent himself." Aplt. Br. at 33. But, again, the issue on appeal in that case was whether the defendant's waiver was knowing and intelligent. More importantly, Defendant's brief omits the opening words of the quoted sentence; the full sentence is:
Willie, 941 F.2d at 1390 (citation omitted) (emphasis added). Willie is obviously different from the case before us. Likewise, the third case relied on by Defendant, United States v. Garey, 540 F.3d 1253 (11th Cir.2008), is distinguishable. The defendant in that case, unlike Defendant here, was adamant that he would not permit his appointed counsel to represent him at trial. See id. at 1259-62.
Finally, we address Defendant's argument that his own letter of July 24, 2010, made a clear and unequivocal request for self-representation. He focuses on the second of the following two sentences in the letter: "I want to communicate, if I can, personally and verbally, during the following hearings, with the Court, and in front of the Judge. I want to communicate without the help of an attorney." R., Vol. 1 at 174. When taken as a whole, however, the letter can fairly be read as expressing total frustration with his attorney and a desire to speak about something with the court when his attorney is "[o]ut of my range of sight and hearing." Id. It says nothing about communicating with the jury, nor does it explicitly request permission to appear pro se at trial. In any event, the court gave Defendant an opportunity to speak (and clarify his wishes) at the next hearing. The court mentioned that Defendant had filed a note, read aloud parts of it complaining about his attorney, and said, "Mr. Loya-Rodriguez, now is your opportunity to address the Court, if you wish, pursuant to your request." Id., Vol. 3 pt. 1 at 77. Defendant did not respond, even to say that he wanted his attorney out of the courtroom while he spoke. The district court did not clearly err in finding that given Defendant's silence in that context, he had not clearly and unequivocally invoked
The district court's decisions did not violate Defendant's right of self-representation at trial.
Defendant's second issue has more merit. He contends that the district court denied him his right of self-representation because he made a clear and unequivocal request to proceed pro se at sentencing. We agree.
In a letter delivered to the court more than a month before the sentencing hearing, Defendant wrote: "All I'm asking you is to let me represent myself[.] I don't need no attorney, or legal representation[.]" Id., Vol. 1 at 281. The letter was filed on December 23, 2010, as document #93. That same day the district court entered a minute order "denying [93] Motion for Order to Proceed Pro Se." Id. at 284.
The matter arose again at Defendant's first sentencing hearing, at which his expletive-laden remarks included: "I don't need fucking nobody to represent me. I don't need no mother fucking lawyer to represent me." Id., Vol. 3 pt. 2 at 429. Thereafter, his counsel argued that he should be permitted to proceed pro se. But noting that it had ruled on previous similar requests, the district court (which, we should add, had displayed remarkable patience) said that Defendant "ha[d]n't indicated that he wants to represent himself" and that self-representation would be against his interest, particularly if he were disruptive and had to be removed from the courtroom. Id., Vol. 3 pt. 2 at 431. It continued by saying that Defendant was not incompetent and had been manipulative in the past, and it concluded: "I have every reason to believe that his behavior today is manipulative behavior; and therefore, I don't consider his request that you not participate to be some legitimate request to represent himself, so I will deny that." Id. at 432.
In our view, the district court did not adequately respond to Defendant's request to represent himself at sentencing. Its expressed reasons for denying the request fell short of what was required. The foolhardiness of proceeding pro se is not a ground for denying self-representation if the defendant is adequately advised of the risks. To be sure, if a defendant wishes to proceed pro se, he "must be able and willing to abide by rules of procedure and courtroom protocol," Tucker, 451 F.3d at 1180 (internal quotation marks omitted); but the district court did not address that issue with Defendant or make a finding that he was incapable of proper behavior (from the trial transcript it appears that he behaved at trial). Also, a request to proceed pro se "must be timely and not for the purpose of delay," id.; but the court did not make a finding of untimeliness (the written request had been made a month before sentencing), nor did it explain what it thought Defendant was seeking by being "manipulative." Finally, although the court found that Defendant had not made a "legitimate request" to proceed pro se, that finding is clearly erroneous insofar as it applies to Defendant's letter of December 21, 2010. It was a timely, unambiguous request "to let me represent myself." R., Vol. 1 at 281. The district court should have proceeded to "conduct a comprehensive formal inquiry to ensure that [Defendant's] waiver of the right to counsel [was] knowingly and intelligently made." Tucker, 451 F.3d at 1180 (internal quotation marks omitted). Accordingly, we remand for further proceedings to guarantee that Defendant's constitutional right to represent himself at sentencing is not infringed.
We AFFIRM Defendant's conviction and REMAND to the district court with directions to vacate his sentence and then resentence him.
