In United States v. Turner, --- F.3d ---, No. 14-50238 (9th Cir. 2018), the defendant was charged with fraud in two separate cases. For years, he oscillated between numerous attorneys and representing himself.
The issues on appeal were:
1. Whether the defendant’s Sixth Amendment right to counsel was violated when the district court partially rejected the eighth request for a continuance, after continuing the trial for over two and half years.
2. Whether the district court violated the defendant' Sixth Amendment right to counsel by requiring him to represent himself.
3. Whether the district court abused its discretion in determining that the defendant was not entitled to CJA funds to hire a psychiatrist to conduct a mental evaluation.
The Court answered "no" to all three.
First, when a request for a continuance implicates the right to counsel, the district court’s denial of such a request “can be analyzed either as the denial of a continuance or as the denial of a motion to substitute counsel.” The Court concluded, "the district court’s ruling was based on timing concerns. Given this focus, the Court analyzed the district court’s order as denial of the full continuance requested.
“To establish a Sixth Amendment violation based on the denial of a motion to continue, [a defendant] must show that the trial court abused its discretion through an ‘unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay. But where a denial of a continuance implicates a defendant’s Sixth Amendment right to counsel, we consider the following factors: “(1) whether the continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasons exist for the delay; (4) whether the delay is the defendant’s fault; and (5) whether a denial would prejudice the defendant.”
The Court concluded an analysis of the five factors supports the district court’s denial of a longer continuance.
Second, as to self representation, the Court held, if the record as a whole establishes that the defendant had sufficient information about the charges, penalties, and risks and disadvantages of proceeding pro se, and sufficient opportunity to be represented by counsel, a “defendant’s actions which have the effect of depriving himself of appointed counsel will establish a knowing and intentional choice.”
"In this case, the district court did not err in concluding that Turner waived his right to counsel through his conduct. The record supports the district court’s conclusion that Turner was engaging in dilatory tactics, rather than attempting to exercise his right to counsel in good faith. To recap, Turner asserted his right to represent himself four times and subsequently asserted his right to counsel, but only counsel of his choice. After the court denied his request to represent himself on July 30, 2012, Turner moved again to represent himself on August 12, but then changed his mind and stated on August 27 that he would try to retain an attorney. Turner moved to represent himself again on October 18, 2012 and confirmed his desire to represent himself at an April 17, 2013 status conference. A July 16, 2013 trial date was set. At a status conference on May 6, Turner asked for a 30-day continuance to attempt to retain counsel. At a hearing on June 10, Turner stated he was continuing his efforts to retain counsel. He repeated this same refrain on June 25 and on July 10. On July 19, he vacillated as to whether he would accept appointed counsel, but ultimately asked the court to appoint counsel. On July 22, Turner stated he wanted to retain counsel and refused to accept Harley as appointed counsel.
As this recital makes clear, Turner “manipulated the proceedings” by vacillating between asserting his right to self representation and his right to counsel. Sutcliffe, 505 F.3d at 955. The district court concluded as much, telling Turner on July 10 that it was “unfair to the court system and unfair to the government to engage in the pattern which I’ll charitably call dalliance, shuttling between being represented by yourself and by counsel.” The district court did not abuse its discretion in concluding that Turner was taking these steps for purposes of delay."Third, “[t]he purpose of the Criminal Justice Act [is] to put indigent defendants as nearly as possible in the same position as nonindigent defendants.” Therefore, it is an abuse of discretion to deny a request for an expert where “(1) ‘reasonably competent counsel would have required the assistance of the requested expert for a paying client,’ and (2) the defendant ‘was prejudiced by lack of expert assistance.’” Prejudice “cannot be merely speculative; it must be demonstrated by clear and convincing evidence.”
Under these principles, the Court concluded, the district court did not abuse its discretion in denying Turner’s request for an expert to perform a mental evaluation in support of a motion for a new trial.
