United States v. McNeal (Phinehas)
663 F. App'x 732
10th Cir.2016Background
- Phinehas McNeal was arrested after police found firearms and ammunition following a shoplifting arrest; he was indicted under 18 U.S.C. § 922(g)(1).
- Defense counsel moved to withdraw days before trial; the district court denied that motion as untimely.
- On the morning of trial McNeal indicated he wanted to proceed pro se; after a Faretta-style colloquy the court warned him of the risks, McNeal conferred off the record with counsel, and then chose to have counsel represent him that day.
- A jury acquitted McNeal of the gun count but convicted him on two ammunition counts; after trial he proceeded pro se for pretrial motions, which were denied.
- At sentencing the court gave McNeal two opportunities for allocution; McNeal claimed he obtained ammunition for his mother and asked for leniency. The court noted inconsistencies and other aggravating/mitigating factors and imposed concurrent 120-month sentences within the Guidelines range.
- McNeal appealed, arguing (1) the court coerced him into waiving self-representation and denied a continuance, and (2) the court penalized him for exercising his right to allocute.
Issues
| Issue | Plaintiff's Argument (McNeal) | Defendant's Argument (Gov't/District Ct.) | Held |
|---|---|---|---|
| Whether the district court violated McNeal's Faretta right by emphasizing risks of self-representation and thus coercing waiver | Court overstressed dangers and advantages of counsel, coercing McNeal to withdraw his pro se request and denying effective self-representation | Court conducted an adequate colloquy, informed McNeal of risks, and McNeal voluntarily chose counsel after advisement | Waiver: no violation — colloquy adequate and waiver valid |
| Whether refusal to grant a continuance denied McNeal the ability to proceed pro se | Court's unwillingness to continue trial left McNeal no realistic choice but counsel, impairing self-representation | No record of a formal continuance request; court may deny continuances in its discretion | No reversible error — no denied continuance shown; discretion not abused |
| Whether the court complied with Rule 32(i)(4)(A)(ii) by allowing allocution | Court effectively punished McNeal for speaking by using his allocution against him | Court complied with Rule 32 by personally inviting allocution twice and allowed unfettered comment; sentencing may consider facts presented | No error — allocution opportunity was meaningful and its contents permissibly considered |
| Whether using allocution statements to justify sentence violates privilege or unfairly penalizes defendant | Using defendant’s statements to enhance sentence chills allocution and penalizes exercise of right to speak | No Fifth Amendment violation; statements at allocution can be considered in sentencing; hope-of-leniency rule applies | No plain error — sentencing consideration of allocution statements permissible |
Key Cases Cited
- United States v. Akers, 215 F.3d 1089 (10th Cir. 2000) (recognizing right to waive counsel and proceed pro se)
- Faretta v. California, 422 U.S. 806 (U.S. 1975) (constitutional right to self-representation)
- Munkus v. Furlong, 170 F.3d 980 (10th Cir. 1999) (defendant may waive right to self-representation even after asserting it)
- United States v. Bennett, 539 F.2d 45 (10th Cir. 1976) (vacillating positions can constitute forfeiture of self-representation)
- United States v. Tucker, 451 F.3d 1176 (10th Cir. 2006) (requirements to invoke Faretta explained)
- United States v. Mackovich, 209 F.3d 1227 (10th Cir. 2000) (standard of review for Faretta claims)
- United States v. Allen, 895 F.2d 1577 (10th Cir. 1990) (trial judge must ensure defendant understands consequences of self-representation)
- United States v. Padilla, 819 F.2d 952 (10th Cir. 1987) (trial judge must show defendant appreciated hazards of self-representation)
- United States v. Turner, 287 F.3d 980 (10th Cir. 2002) (approving advisements that stress importance of counsel)
- United States v. Hughes, 191 F.3d 1317 (10th Cir. 1999) (broad discretion on continuances)
- United States v. Mendoza-Lopez, 669 F.3d 1148 (10th Cir. 2012) (plain-error standard for unpreserved sentencing objections)
- Harvey v. Shillinger, 76 F.3d 1528 (10th Cir. 1996) (no Fifth Amendment bar to defendant testifying at sentencing in hope of leniency)