United States v. Floyd Balough
820 F.2d 1485
9th Cir.
1987
Check Treatment

*2 NELSON, Bеfore HALL and KOZINSKI, Judges. Circuit NELSON, Judge: Circuit Balough appeals his on Floyd conviction robbery by use of a two counts of bank dangerous weapon in violation of 18 U.S.C. 2113(a)(d)(1982). Balough contends § intelligently he did not right waive his deny- district court abused its discretion ing guilty plea. his his motion to withdraw Balough agree Because we his sixth waive counsel, right amendment wе reverse remand for reconsideration of Ba- plea. lough’s guilty motion to withdraw his

I. BACKGROUND Floyd Balough was indicted on three robbery by danger- counts of bank use of a weapon ous in violation of 18 U.S.C. 2113(a)(d) (1982). Following pretrial § evidence, suppress Balough motion to pleaded guilty on 1984 to two of government agreed the counts drop Throughout the third count. these Balough proceedings, represented by appointed counsel. counsel, represented by appointed

While Balough filed motions to withdraw his plea appear pro Sep- and to se. On guilty 24, 1984, both motions were heard tember granting court. Before by the district se, lough’s motion to the district queried court establish Balough unequivocally record that intended counsel, right his and that he he had an absolute understood stages counsel at all Alto, Cal., Phillip Chemey, H. Palo for proceedings required would be defendant-appellant. case, including the rest his to handle Pallemon, sentencing, granted himself the court Asperger, Robert James R. Cal., granted The district court then Angeles, motion.1 plaintiff-appellee. Los not able to be here until about 3:00 colloquy 1. The entire at the on Ba- was, lough’s as follows: o’clock. Well, ready I am Now, MR. BALOUGH: your Balough, THE COURT: Mr. attor- now, Price, your Honor. ney, Mr. that he notified the court proceed pro self-representation, motion se and before his decision to argument heard on his motion to withdraw waive counsel will be and intelli guilty plea. gent. (9th Cir.1983), hearing Balough’s arguments After questioning attorney, his former the dis- (1984); Harris, pleaded trict court found that had guilty freely voluntarily and had re- order to waive the *3 ceived of in effective assistance intelligently, and a criminal de entering plea. Accordingly, the district fendant “should be made aware of the dan court denied motion to withdraw gers and self-representa of guilty plea. Balough subsequently ap- tion, so that the record will establish that peared pro sentencing hearing, se at his ‘he knows what and his choice ” and was sentenced to concurrent fourteen- eyes open.’ is made with prison year terms federal on each of the Bird, 989, (9th Cir.1980) 621 F.2d 991 robbery timely ap- two counts. 835, 422 U.S. at 95 S.Ct. pealed, appeal ap- and counsel for his was 2525, 2541); Aponte, United States v. 591 pointed by ‍‌‌​​​​​​‌​‌‌‌‌‌​​‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​‌​‌​​‌​‌​‌‌‌‍this court. 1247, (9th Cir.1978). F.2d 1249 According ly, we have held that waiver of counsel “[a]

II. DISCUSSION intelligent be and unless A сriminal appreciates defendant has an abso the accused conse quences mishandling lute under the sixth amendment to be these core func represented by represent counsel or him lawyer’s superior to tions and the ability to self, if he so chooses. Faretta perform them.” Califor nia, 806, 807, m2 422 Cir.1982); 95 S.Ct. 721 see Unit F.2d Gillings, States v. ed States v. 45 L.Ed.2d 562 568 F.2d 1308- Harris, (9th Cir.) (district If court “must assure himself, represent a defendant chooses to itself that the defendant understands the however, his charges decision must be made know and manner which an attor is, ingly intelligently; assistance.”), ney a criminal be defendant must be aware of the nature of possible penal Throughout inquiry, this we must

ties, understood, foсus on what the defendant you ready proceed your THE COURT: Are MR. BALOUGH:I understand Hon- hear the motion to se? or. motion, yes, MR. I’ll BALOUGH: hear that your THE COURT: —if the Court denies mo- your Honor. your plea? tion to withdraw THE COURT: You have filed a motion to Yes, MR. BALOUGH: do. appear pro you may represent se so that also, you THE COURT: And understand do argue your own motion tо withdraw not, you that if—of course the Court has your guilty plea. previously appointed Mr. Price to MR. BALOUGH: That is correct. you, you’re fully you aware that are you THE COURT: Is that what wish to do? stages entitled to be at all Yes, MR. BALOUGH: I do. proceedings by counsel? you THE COURT: You do realize that have Yes, MR. BALOUGH: I understand that. the absolute Nevertheless, you COURT: THE chоose at this proceedings? counsel for these time to take over at this time the conduct of Pertaining MR. BALOUGH: to the motion your point this case own from this for- withdraw? ward; right? is that Pertaining THE COURT: to the motion to correct, your MR. BALOUGH: That’s Honor. guilty plea. withdraw the grants Yes, you permis- THE COURT: The Court MR. BALOUGH: I understand that. se, appear pro any sion to prоceedings. will now THE COURT: Or other Yes, filed, you MR. BALOUGH: I understand that. the motion which have hear you you

THE COURT: Do understand that if plea guilty, which is to withdraw the granted permission are you which heretofore entered on you required will be handle the 17th, 1984. sentencing yourself— (“It where, or on what the court said understood.is an unusual case absent such rather than is, 325; Kim cоlloquy, knowing intelligent Harr a waiv- mel, F.2d at 722. found.”); Aponte, er of counsel will (“It the rare case will be preferred procedure ensure that a adequate ... which an waiver will be made waiver found on the record in the absence court to discuss each of is for the district specific inquiry by judge.”). Ac- trial the defendant in the three elements with 1005; cordingly, rarely open court. we have found a Harris, specific waiver absent in- Aponte, 991; F.2d at quiry into the elements Harris, 1250. In F.2d at unless case involved “an unusual fact emphasized that background situation which the and ex- grant not a district court should a de- perience of the defendant in matters request representa- fendant’s apparent from the record.” counsel and serve as tion of his own 683 F.2d at 324. *4 counsel, discussing with the de- without

fendant, court, open in whether the waiv- bar, In the case at made, er was specifically discuss the three ele understanding charges, with an Balough ments at with the on his penalties, dangers the and the Therefore, se. we self-representatiоn. This is the inquire into the record as a whole to preferable procedure and should be fol- Balough determine whether nonetheless district in lowed courts case. sufficiently understood the nature of the Nonetheless, we have also held that possible penalties, the exception may whereby a limited exist disadvantages of self- district court’s failure to discuss each of representation, to waive his to coun open the elements in court will not necessi intelligently. sel tate automatic reversal when the record as taking The record indicates before a whole reveals a guilty plea the Harris, 324; Kimmel, waiver. 683 F.2d at carefully distriсt court discussed with Ba- 991; 621 F.2d at lough the nature of the two counts of bank States, Cooley v. United robbery against him pos- and the maximum (9th Cir.1974), penalties 2113(a)(d) sible under 18 U.S.C. § L.Ed.2d 824 point record, however, At no in the Gillings, see also United States v. ap- ‍‌‌​​​​​​‌​‌‌‌‌‌​​‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​‌​‌​​‌​‌​‌‌‌‍does it that the district court (waiver F.2d at 1309 of counsel effective prised Balough self-representation thаt because of defendant’s extensive discussion presented any dangers disadvantages. or district with court and consultation with Balough’s hearing counsel, At attorney). Absent a district court’s discus Balough district court advised that he elements, sion of the three we look to will had a to counsel and would be re- circumstances, particular “the facts and quired to handle the rest of his case him- case, surrounding including the back proceed counsel; self if allowed to without ground, experience and conduct of the ac sentencing hearing, Balough was cused” to determine whether the waiver merely asked whether he wished to contin- intelligent despite wаs stage, ue without counsel. At each crucial specific inquiry absence of a on the record. Balough was allowed to on his own Kimmel, Cooley, being warned that he would without be at a 1252). disadvantage doing so or advised how held, Our consistently cases have how- trained counsel could assist him. ever, that exception this “limitеd [is] Nothing in applied the record indicates that Ba- rare cases.” see also legal Rylander, 714 F.2d at 1005 lough any training, specialized arguing articulate- motions and researched education,2 background which or unusual true, this is possessed he behalf. Even apparent ly on his own might make it disadvan- understanding Balough understood to show thаt irrelevant sufficient govern- tages disadvantages self-rep- dangers and ment, however, argues that because sought to time he waive resentation at the up until by counsel lough was assisted “The manner which right to counsel. counsel, and his motion to waive hearing on his defense cannot conducts a defendant convictions, fеlony previous had numerous of mind at the time establish his state opportunity to observe ample he had self-representation.” Aponte, opted for acquired representation advantages of (citing Cooley, 591 F.2d at 1250 process. legal experience with extensive 1252). held that a well-educated we In issue this case The troublesome by advisory defendant, assisted who was sufficiently understood whether case, had throughout his who been self-rep- and had times before several prosecuted waive his resentation to one himself in at least even intelligently. the ab- knowingly and to understand case, deemed could not be specific inquiry by the district sence of a dangers and sufficiently the record, or additional facts to court on the additional self-representation absent adequately ap- show that indicating he had been facts such as sufficient prised by another source or had a self-representa- the risks of informed about experience mat- background and previously. point tion at some self-repre- the risks of ters to understand at 722. sentation, simply have no assurance *5 by case, Balough not assisted In this that he did. appear- during his advisory counsel3 urges us to consider government The ances, does not indicate and the record previous error. Our cases this harmless or hаs himself before has specifically remanded without ad have dangers and dis- of the apprised been ever dressing applicability of the harmless As we advantages of See a doctrine. 714 F.2d at mere fact that error noted 1005; 326; repeatedly ex- defendant has been criminal 721-23; Bird, has even legal process and posed to the cannot, Crowhurst, 389, without v. represented himself before 596 F.2d more, finding of a support Cir.1979); to a Aponte, 591 F.2d (9th suffice at 391 intelligent waiver. Id. With- and split ques on the 1250. Other circuits are has assurance that the defendant out some the harmless error doctrine tion whether disadvan- apprised of the been applies a defendаnt has been denied when say tages self-representation, of Compare United right to counsel. his right his has waived that such a defendant 185, (3d Welty, 674 F.2d v. 194 n. 6 States Faretta, 422 open.” eyes counsel “with to Cir.1982) (harmless inap error doctrine is Bird, 835, 621 95 at U.S. at S.Ct. context), with Richardson propriate this F.2d at 991. Lucas, (5th Cir.1984) 753, v. 757 doctrine), (applying harmless error argues thаt government The also 109, 112 Gipson, v. States well, well- United filing lough represented himself (retired porate president); nonlegal 621 F.2d at 991 field Even advanced education in professor). sophisticated experience in other or extensive adequate an under- areas cannot suffice to show self-representa- advisory disаdvantages of standing of had the assistance 3. Had throughout proceedings, intelligent professional well the rest of the man counsel tion. "An to show competent yet no under- would also not have sufficed have this alone be in his field legal procedures.” waiver unless adviso- standing Har- law or ris, adequate- ry apprised (physiсian 683 self-representation. See Har- self-representa- ly understand 325; Kimmel, ris, (cor- tion); Rylander, 714 F.2d at 1005 see also 1490 Cir.1982) (same), litany allowing 459 to ‍‌‌​​​​​​‌​‌‌‌‌‌​​‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​‌​‌​​‌​‌​‌‌‌‍before a defendant exer- 1218, 1216, self-representation 75 L.Ed.2d 455 cise his

U.S. 103 S.Ct. creates (1983). procedural already unwarranted snares busy unduly district courts and burdens the deci Supreme Court’s recent very rights guaranteed by Faretta v. Cali- —Clark, -, 106 sion in U.S. Rose v. 806, 2525, 422 fornia, U.S. S.Ct. (1986), 3101, S.Ct. L.Ed.2d makes it L.Ed.2d 562 approach clear Third Circuit’s is that the District courts aware are well of their Rose, recognized the Court correct. duty under to make sure Faretta that a error doctrine does not the harmless defendant who wants to himself apply in all Id. at 3106. The contexts. “ ‘knows what he is аnd his choice is presupposes Court the doctrine noted that ” eyes open.’ made with 422 U.S. that a defendant counsel. 835, at 95 S.Ct. at 2541 Adams v. Id.; States, see also United Glasser McCann, States ex rel. 317 U.S. 60, 76, 457, 467, 62 S.Ct. 86 L.Ed. 680 63 S.Ct. 87 L.Ed. 268 (1942)(“The right to have the assistance (1942)). District deal with criminal counsel is too fundamental and absolute day. defendants are in the indulge allow courts in nice calculations position best whether evaluate the de- arising prejudice as to the amount of from fendant’s decision is made denial.”). its intelligently: They can consider the level of case, Balough In this was denied his understanding demonstrated the defend- both the on the ant, background prior experience guilty pleа withdraw legal system, with the the deliberation with hearing. sentencing Mempa Rhay, See which he made the decision pur- without counsel and his seriousness of (1967) (defendant L.Ed.2d 336 has a pose. ought give judge’s We a district every stage to counsel at of a criminal greater determination rely deference and proceeding rights may where substantial far less on rote recitation mechanical affected). Therefore, error harmless formulas.2 analysis inappropriate. Rose, requiring am also concerned judge at 3106. engage defendant in a verbal minuet *6 above, therefore, For the reasons we re- may, many cases, unduly inhibit the de- verse and remand reconsideration from exercising rights fendant under guilty motion to withdraw his sight must Faretta. We not lose plea. fact given to defend is “[t]he REVERSED and REMANDED. directly accused; to the for it is he who consequences the suffers if the defense KOZINSKI, Judge, Circuit with whom 819-20, fails.” Judge Circuit CYNTHIA HOLCOMB inquiry 2533-34. S.Ct. at What is to be concurring: joins, HALL degree the made and it which should be I join opinion the сourt’s it because cor- pressed is a matter best left to the district rectly applies the law of this judge. circuit Criminal may defendants construe fear, however, case before us.1 re- a detailed enumeration of the quiring judge pitfalls proceeding district recite a formal without counsel as a 1. Our cases hold that district we can court case" where affirm the district court's discuss with the defendant on the grant record repre- a criminal defendant’s motion to nature of the penalties Rylander, sent himself. Nothing in the 2. record—other than the failure Cir.1983), cert. proper litany question to recite into —calls States judge’s the learned district conclusiоn that Ba- Ab F.2d lough exercised his specifically including sent a formal discussion rights Faretta. under elements, each of these unusual three "it is [the] they warning ultimately choose to defendants rests experi- with the anyway, the court will dis- preside themselves enced men and women who our , against proceedings posed them. Criminal district courts. We should let them do and, intimidating inherently despite the jobs. are their judges, of district defend- careful efforts perceive by litany

ants well a formal district court as ‍‌‌​​​​​​‌​‌‌‌‌‌​​‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​‌​‌​​‌​‌​‌‌‌‍a veiled threat. We judges dispense

should allow district part litany they

with all or whenever good

see reason for so.

Appellate judges inventing are fond of formulas, tests and rules constrain trial Arline Jean MARTINELLI & Jack participate litiga- courts. Unablе to in trial Martinelli, Plaintiffs/Appellants, directly, they gaze upon suspi- tion it with height, cion from a distance—a some would insist. The realities of the courtroom—the BEAUMONT, Acosta, CITY OF John judge dozens of details that a district Tony Augustyn, David C. Van absorb, assimilate and able consider—es- Buren, Defendants/Appellees. cape appellatе scrutiny simply because the No. 85-6358. reporter capture only spo- the words of Appeals, Court ken, they not the inflection with which are Ninth Circuit. (or thereof) delivered or the look absence may accompany Consigned them. Argued and Submitted Dec. 1986. watching the courtroom’s dramas flicker Decided wall, appellаte like shadows on a cave clarity by forcing are wont to seek exaggerated, stylized the actors to take

steps images sufficiently that leave distinc-

tive to be examined and reviewed on a cold

record. procedural is, choreography

This faith view, my fundamentally Appel- flawed. contingencies;

late courts cannot foresee all

they every reduce conceivable formula, anticipate

factor to a neat nor judge might factual nuance a district there,

grasp by being hear, speak able to procedural

and observe. Nor can incanta- *7 fulfill lofty aspirations appellate

tions A colloquy have for them. conduct- fashion,

ed in a rote and like a mechanical warning given

Miranda in a disinterested

tone, may reassuring look on ‍‌‌​​​​​​‌​‌‌‌‌‌​​‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​‌​‌​​‌​‌​‌‌‌‍the record protect rights do

but will little to And, costs;

accused. ritual its it is

inflexible nature and as often de- designed

feat the ends it is as advance

serve them.

Appellate judges should be aware guide

their limitations. and re-

view, they but cannot run the show. The safeguarding rights

task of of criminal