Thursday, May 01, 2008

Summary Denial of Unequivocal Request to Proceed Pro Se is Error & Requires Remand for Faretta Hearing

United States v. Cano, No. 06-10940 (5th Cir. Mar. 10, 2008) (Higginbotham, Davis, Smith)

A familiar factual scenario: traffic stop, cocaine, federal charges. After Cano's attorney filed a motion to suppress the cocaine, Cano filed a motion of his own seeking to act as lead counsel, with his retained attorney serving as co-counsel. The district court denied the motion for hybrid representation because Cano lacked access to a law library. After a jury convicted Cano of the cocaine charges, and before sentencing, Cano filed a pro se notice of appeal (which the court of appeals dismissed as premature). Cano then filed a motion asking for a judgment of acquittal, and "to proceed pro se at sentencing and on appeal." The district court summarily denied the motion.

Cano raised two issues on appeal. First, he challenged the denial of his suppression motion:
Cano concedes that the initial stop of the vehicle was legal but urges that the officers had no justification to detain him beyond that initial stop. On appeal, he argues that that illegal detention rendered his consent to search involuntary. At the suppression hearing, however, he did not challenge the effectiveness of his consent, but its scope. Those are separate arguments, so the issue is waived, and the judgment of conviction stands.
The opinion also mentions that "[a]t the hearing, Cano framed his suppression argument as follows: 'We are not disputing the lawfulness of the stop. We are not disputing the fact that Mr. Cano, in fact, gave the officers consent initial to search the vehicle. The issue before the Court is whether or not these officers went beyond the scope of his consent.'" So this holding shouldn't be taken to mean that a defendant has to raise consent issues as an initial matter. After all, once a defendant shows that he was subjected to a warrantless search or seizure, the Government bears the burden of establishing that the search or seizure (or both) were permitted by one of the countless exceptions to the Fourth Amendment's warrant requirement. So if the Government wants to rely on consent, it has to bring up the issue and show that the consent was valid and that the search didn't exceed the scope of the consent. But once that happens, a defendant can't concede the voluntariness of the consent in the district court and then argue on appeal that the consent was involuntary. That's really all the court is saying here.

Second, Cano argued that the district court erred by denying his motion to proceed pro se at sentencing. The court of appeals agreed.

Faretta extends to sentencing hearings, and "assertion of the right proceeds in two steps. First, the defendant must unequivocally inform the court of the desire to represent himself. Second, the court must hold a Faretta hearing to determine whether the defendant is 'knowingly and intelligently' forgoing his right to appointed counsel and whether, by post-invocation action, he has waived the request."

Cano met the first requirement. Although the district court properly denied Cano's first motion, because there's no constitutional right to hybrid representation, Cano's second motion clearly and unequivocally expressed his desire to represent himself at sentencing. Leading to "an issue of first impression in our circuit[:]" "whether, in light of the new request, the district court was obligated to hold a hearing on Cano's motion."

The court answered the question "yes," because 1) that's the answer suggested by "the general tenor of our jurisprudence," 2) the factors that a district court must consider at a Faretta hearing "indicate that the district court must conduct a meaningful investigation into a defendant’s constitutionally protected request to represent himself; summary dismissal is insufficient[,]" and 3) "'Where a fundamental constitutional right, such as the right to counsel, is concerned, courts indulge every reasonable presumption against waiver.'"

So Cano gets a new sentencing after a Faretta hearing.

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