Summary
equating a closed account with a nonexistent account for purposes of § 4A1.2, Application Note 13
Summary of this case from U.S. v. MatosOpinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Jan. 13, 1999.
Appeal from the United States District Court for the District of Hawaii David A. Ezra, District Judge, Presiding.
Before WIGGINS, TASHIMA and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
George Parker appeals his convictions for conspiracy under 18 U.S . C. § 371, witness tampering under 18 U.S.C. § 1512(b)(3), and money laundering under 18 U.S.C. § 1956(a)(1)(B)(I). He contends (1) that he did not knowingly not granting him a new trial based on juror misconduct. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo whether a defendant knowingly, voluntarily, and intelligently waived his right to counsel. United States v. Springer, 51 F.3d 861, 864 (9th Cir.1995). Parker, an experienced criminal attorney, explicitly waived his right to counsel prior to beginning hybrid self-representation, that is, simultaneous self-representation and representation by counsel. Whenever a defendant chooses hybrid representation and assumes some of the lawyer's "core functions," the Constitution requires a voluntary waiver. United States v. Turnbull, 888 F.2d 636, 638 (9th Cir.1989) (quoting United States v. Kimmel, 672 F.2d 720, 721 (9th Cir.1982)). To ensure a knowing and intelligent waiver of a defendant's right to counsel, "[h]e should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open." ' Faretta v. California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
Parker knew from his experience as a criminal lawyer the dangers of self-representation. However, the district judge provided additional warning:
THE COURT: You are aware of the potential pitfalls and problems of self-representation and that you accept those and wish to proceed in this way and that you've carefully thought it out and understand that it isn't going to be an issue on which you are going to be very successful on appeal. You know, if you get convicted, you're not going to be in a position to come back later and say: Gee, the judge shouldn't have let me enter into this hybrid representation arrangement, even though I wanted it. You understand all of that, Mr. Parker?
MR. PARKER: Yes, judge, I do.
After Parker heard the charges and possible penalties, the judge again asked, "[G]iven all that, do you still wish to go on with this hybrid representation?" Parker answered, "Absolutely." Even were a knowing and intelligent waiver not clear from the judge's colloquy and Parker's response, a valid waiver nonetheless existed as "the background and experience of the defendant in legal matters was apparent from the record." United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982).
Parker also argues that the district court erred by not granting him a new trial based on a juror's failure to disclose racial animus during voir dire. We review the court's denial of Parker's motion for a new trial for an abuse of discretion. United States v. Peterson, 140 F.3d 819, 821 (9th Cir.1998). To succeed on his motion, Parker had to "demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).
After holding evidentiary hearings, the district judge concluded that Parker "has not produced one shred of evidence, beyond the unsupported allegations of one juror, to demonstrate that a juror made a material misrepresentation during voir dire." The judge found that the allegations against the juror were "not believable" and "ambiguous at best." Furthermore, he found the evidence refuting the allegations to be "completely credible and believable." Such credibility findings are reviewable only for clear error. See United States v. Matta-Ballesteros, 71 F.3d 754, 766 (9th Cir.1995). We find neither clear error in the judge's findings nor an abuse of discretion in his denial of Parker's motion for a new trial.
AFFIRMED.