Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Ninth Circuit: Asking Single Objectionable Question Insufficient to Justify Termination of Defendant’s Right to Pro Se Representation

Todd C. Engel chose to represent himself at a jury trial on charges of obstruction of justice and interstate travel in aid of extortion stemming from his role in an armed standoff between agents from the Bureau of Land Management (“BLM”) and militia members supporting Cliven Bundy.

On the 21st day of trial, Engel asked a Government witness: “Isn’t it true that Dan Love’s under criminal investigation for - ” at which point the Government objected and moved to strike. The district court instructed the jury to disregard Engel’s question. Engel announced, “No further questions” and took his seat at the defense table with standby counsel John George.

Dan Love was a BLM agent under investigation for conduct unrelated to the incidents for which Engel was being tried. For that reason, the court had earlier issued an order denying a defense motion seeking to compel Love as a witness because his testimony was irrelevant.

After Engel’s question, the court excused the jury, whereupon the Government moved for revocation of Engel’s pro se status as a sanction. Engel calmly apologized for the question and asked that he be permitted to continue representing himself.

The court sided with the Government, stating that Engel’s “intentional” decision to ask the question “indicated that he’s not going ... to follow my court order.” The judge revoked Engel’s right to represent himself and appointed standby counsel George to represent Engel. After George cross-examined several Government witnesses, the district court allowed Engel to conduct closing arguments. The jury convicted Engel, and he appealed. One issue on appeal was that the district court erred when it terminated his right to self-representation.

The Ninth Circuit observed “[t]he Sixth Amendment grants a criminal defendant ‘personally the right to make his defense.’” Faretta v. California, 422 U.S. 806 (1975). This right guarantees a defendant actual control over the case he chooses to present to the jury and exists to affirm the accused individual’s dignity and autonomy. McKasskle v. Wiggins, 465 U.S. 168 (1984).

But the right to self-representation is not absolute. United States v. Johnson, 610 F.3d 1138 (9th Cir. 2010). If a defendant deliberately engages in serious and obstructionist misconduct, a district court may terminate self-representation. Faretta. Examples of conduct supporting termination of the right include a defendant’s heated dialogues with the judge and his raising a clenched fist at the judge, Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978); the defendant’s threatening of a juror to an extent requiring dismissal of the juror and disclosing to the jury information the judge had specifically ordered the defendant not to disclose, United States v. Mack, 362 F.3d 597 (9th Cir. 2004); and refusing to obey orders or rulings from the bench, United States v. Flewitt, 874 F.2d 669 (9th Cir. 1989).

However, self-representation may not be terminated where the defendant “file[s] numerous nonsensical pleadings, [is] uncooperative at times, [insists] on wearing prison garb in front of the jury,” and confusingly tells the jury he “want[s] the jury ‘to enter a guilty plea’” during opening statements. Johnson. Failing to properly prepare for trial will not justify termination of the right. Flewitt. Nor will being unfamiliar with the rules of evidence or the specifics of criminal procedure. United States v. Lopez-Osuna, 242 F.3d 1191 (9th Cir. 2000).

In the instant case, Engel’s tame conduct did not approach anything to justify termination of the right. After the Government objected, Engel ceased questioning the witness and took his seat. When the Government moved for sanctions, he calmly responded and apologized for the question. And it wasn’t clear that Engels had actually disobeyed any order of the district court. The order referenced by the judge had merely denied Love’s presence at trial – it did not order that Engel was prohibited from questioning another witness about Love’s conduct. At most, Engel’s conduct demonstrated he was unfamiliar with the intricacies of the rules of evidence and court procedure. Consequently, Engel’s asking of the question was insufficient reason to justify termination of his right to self-representation.

His Sixth Amendment right to represent himself was denied when George cross-examined Government witnesses in lieu of Engel. The right to self-representation extends to all critical stages of a criminal prosecution. United States v. Rice, 776 F.3d 1021 (9th Cir. 2015). Cross-examination of the prosecution’s witnesses is a critical stage. United States v. Yamashiro, 788 F.3d 1231 (9th Cir. 2015). Denial of the right to self-representation is a structural error requiring reversal. Rice.

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

United States v. Engel

 

 

Prison Profiteers - Side
Advertise here
CLN Subscribe Now Ad 450x600