United States v. Phillip Ductan, 2015 U.S. App. LEXIS 15585

Background

In 2004 a confidential informant arranged a controlled buy; police arrested Phillip Ductan after he displayed marijuana and tossed a firearm while attempting to flee; state charges were later dismissed, and a federal indictment followed.
Ductan retained counsel Charles Brant, who moved to withdraw due to lack of cooperation; at the magistrate hearing Ductan rejected appointed counsel, said he did not want to represent himself, but made incoherent statements.
The magistrate granted counsel’s withdrawal and concluded Ductan had “forfeited” his right to counsel based on his conduct, appointing standby counsel Randy Lee.
Lee sought to withdraw; the magistrate denied withdrawal and reiterated that Ductan had waived/forfeited appointed counsel; Ductan continued to assert he wanted private counsel and could not represent himself.
At trial Ductan represented himself with Lee as standby; he was removed for contempt during voir dire, the court continued jury selection in his absence with standby counsel not participating, and the jury was empaneled; Ductan was convicted on drug and §924(c) counts.
On appeal the Fourth Circuit held the magistrate erred in finding forfeiture (and that no valid waiver occurred); because the error was structural, conviction was vacated and case remanded for a new trial.

Issues

Issue	Ductan’s Argument	Government’s Argument	Held
Whether a defendant can forfeit the Sixth Amendment right to counsel by misconduct	Forfeiture is improper; Ductan never clearly and unequivocally waived counsel and repeatedly said he wanted private counsel	Conduct can imply waiver/forfeiture; refusal to proceed with appointed counsel supports implied waiver	Forfeiture is not recognized here; the magistrate erred in finding forfeiture and no valid waiver appears on this record
Whether Ductan validly waived counsel by electing self-representation	He never clearly and unequivocally elected self-representation; he said “No” when asked if he wanted to represent himself and repeatedly sought private counsel	Pointed to precedents allowing implied waiver when defendant refuses counsel and delays proceedings	Waiver must be clear and unequivocal and knowing; Ductan did not meet that standard and Faretta inquiry was incomplete, so no valid waiver
Whether the magistrate’s failure to complete Faretta inquiry defeated any waiver	Ductan: magistrate could not determine a knowing, intelligent waiver because Ductan’s responses were incoherent; thus counsel should have been appointed	Govt: magistrate’s limited inquiry and information were sufficient to find waiver/forfeiture	Court: magistrate acknowledged no knowing and intelligent waiver; incomplete Faretta inquiry supports that counsel should have remained appointed
Whether conducting jury selection with Ductan absent (after removal) without appointing counsel violated the Sixth Amendment (concurring view)	Removal without appointing replacement counsel left him unrepresented at a critical stage, violating right to counsel	Standby counsel’s presence sufficed; Ductan had been disruptive and had declined counsel	Concurring judge: plain error — jury selection is a critical stage and proceeding without appointed counsel while defendant was involuntarily absent was reversible error

Key Cases Cited

Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel fundamental in criminal prosecutions)
Faretta v. California, 422 U.S. 806 (1975) (defendant has right to self-representation but must knowingly and intelligently waive counsel)
Gonzalez-Lopez v. United States, 548 U.S. 140 (2006) (denial of counsel is a structural error not subject to harmless-error analysis)
Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995) (counsel is default; self-representation waiver must be clear and unequivocal)
Frazier-El v. Tucker, 204 F.3d 553 (4th Cir. 2000) (court may insist on appointed counsel when defendant vacillates or raises frivolous objections)
Bernard v. United States, 708 F.3d 583 (4th Cir. 2013) (discusses review standards when counsel fails to preserve waiver objection)
Gomez v. United States, 490 U.S. 858 (1989) (jury selection is a critical stage entitling defendant to counsel)
Cronic v. United States, 466 U.S. 648 (1984) (complete denial of counsel at a critical stage may constitute a breakdown of the adversarial process)
Illinois v. Allen, 397 U.S. 337 (1970) (disruptive defendant may be removed from courtroom but removal carries constitutional concerns)