United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant's appeal (DE 62)
of decision by United States Magistrate Judge James E. Gates
(DE 59) to deny his motion to proceed pro se (DE
52). For reasons that follow, defendant's motion to
proceed pro se is denied.
is the subject of indictment returned August 8, 2018,
followed by superseding indictment filed March 6, 2019,
wherein he is charged with numerous sex offenses. These
include: two counts of sex trafficking a minor by force,
fraud, or coercion, in violation of 18 U.S.C. §§
1591(a)(1)-(2); two counts of sex trafficking of a minor, in
violation of 18 U.S.C. §§ 1591(a)(1) & (b)(2);
one count of using a minor child to engage in sexually
explicit conduct for the purpose of creating child
pornography, in violation of 18 U.S.C. §§ 2251(a),
(e); one count interstate transportation of a minor with
intent to engage in criminal sexual activity, in violation of
18 U.S.C. § 2423(a); three counts of interstate
transportation for prostitution by coercion and enticement,
in violation of 18 U.S.C. § 2422(a); two counts of
interstate transportation for prostitution, in violation of
18 U.S.C. § 2421(a); and one count of use of internet to
promote an unlawful business enterprise, namely, prostitution
and aiding and abetting same, in violation of 18 U.S.C.
§§ 2 & 1952(a)(3).
the subject of a forensic examination provided to this court
January 15, 2019, recently was found competent to proceed. He
is scheduled to be arraigned April 3, 2019. The clerk
calculates time for trial pursuant to the Speedy Trial Act of
1974, 18 U.S.C. § 3161, et seq. will expire May
relevant here, on March 1, 2019, defendant filed motion to
proceed pro se, referred to the magistrate judge for
decision. Hearing was held March 7, 2019. The record reflects
multiple attempts by the court to question defendant as to
whether he knowingly and voluntarily waived his right to
counsel. Defendant refused to answer most questions. He was
generally uncooperative and inclined to the making of what
the magistrate judge characterized as "repeated
extraneous statements," evidencing no "meaningful
understanding of the hazards and disadvantages of
representing himself (DE 59). His motion was denied.
March 15, 2019, defendant filed notice of appeal of this
decision to the United States Court of Appeals for the Fourth
Circuit. Thereafter the motion was referred by the Fourth
Circuit's clerk of court to this court, in accord with
Rule (d) of the Federal Rules of Appellate procedure,
providing in pertinent part that "[i]f a notice of
appeal in either a civil or a criminal case is mistakenly
filed in the court of appeals, the clerk of that court must
note on the notice the date when it was received and send it
to the district clerk."
court takes up this matter upon de novo review. A
defendant in a criminal prosecution has a Sixth Amendment
right to waive appointed counsel and proceed pro se.
Faretta v. California, 422 U.S. 806(1975).
Defendant's "assertion of the right of
self-representation must be (1) clear and unequivocal; (2)
knowing, intelligent and voluntary; and (3) timely."
United States v. Frazier-El., 204 F.3d 553, 558
(4th Cir. 2000) A court should make certain
defendant has the ability to "grasp, understand, and
decide." United States v. Gallop, 838 F.2d 105,
110 (4th Cir. 1988) Whether a defendant effectively waived
his right to counsel is a question of law and subject to
de novo review, based upon an examination of the
record as a whole. United States v. Singleton, 107
F.3d 1091, 1097 n.3 (4th Cir. 1997).
difficulty of the pro se defendant's task, which
includes "organization of his defense, making motions,
arguing points of law, participating in voir dire,
questioning witnesses, and addressing the court and
jury," McKaskle v. Wiggins, 465 U.S. 168, 174
(1984), is immense. Indeed, the difficulty is so great the
Supreme Court has stated, "[o]ur experience has taught
us that pro se defense is usually a bad defense. . .
.'" Martinez v. Court of Appeal of California.
Fourth Appellate District 528 U.S. 152, 161 (2000)
(internal citations omitted).
Fourth Circuit has emphasized that trial courts can rely on
the record as a whole when evaluating the sufficiency of
waiver, and that no formal inquiry is required.
Gallop, 838 F.2d 105, 110. However, here the
magistrate judge attempted a thorough, formal inquiry
including discussion with the defendant in open court about
the dangers and disadvantages of proceeding as his own
counsel. He attempted to develop on the record
defendant's educational background and general
capabilities. The ability of the defendant to grasp and
understand could not be determined from his responses, which
thwarted any logical discourse. Defendant evidenced no
understanding that he will be required to follow all of the
rules of evidence, criminal procedure, and the orders and
directions of the court, even if he disagrees with them.
trial court has had opportunity to observe defendant's
behavior, too, at pre-trial hearing, during which his conduct
mimicked that displayed before the magistrate judge. It
appears from the examiner's report filed January 17,
2019, such obstructive behavior is representative, too, of
his conduct while being evaluated for competency. The
examiner noted that "direct questioning regarding his
understanding of court proceedings and the charges against
him was impossible." Report, p. 7 (DE 43).
the court concludes that defendant has not knowingly and
voluntarily waived his right to counsel. See United
States v. Bernard, 708 F.3d 583, 588 (4th Cir.2013)
("[A] person may waive the right to counsel and proceed
at trial pro se only if the waiver is (1) clear and
unequivocal, (2) knowing, intelligent, and voluntary, and (3)
timely."); United States v. Ductan, 800 F.3d
642, 650 (4th Cir. 2015) (holding waiver of counsel cannot be
accomplished by conduct or implication). Moreover, where
defendant persisted March 7, 2019, n the same obstructive
behavior which has characterized his many court appearances
to date, defendant has waived his right to represent himself.
See United States v. Dougherty, 473 F.2d 1113, 1125
(D.C. Cir. 1972) ([Deliberate .. . obstructive behavior may
constitute waiver of [defendant's] pro se
these reasons, defendant will proceed through his court
appointed counsel. Arraignment will proceed as scheduled Apr,
l 3, 2019. Upon any not guilty plea, at conference
immediately following arraignment, pursuant to Rule 17.1 of
the Federal Rules of Criminal Procedure, the court will