                                                                           FILED
                           NOT FOR PUBLICATION                               JUN 11 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30221

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00328-JCC-1

  v.
                                                 MEMORANDUM *
RONALD L BREKKE,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                        Argued and Submitted June 4, 2013
                               Seattle, Washington

Before: McKEOWN and IKUTA, Circuit Judges, and CARNEY, District Judge.**

       Defendant Ronald Brekke appeals his conviction and sentence for one count

of conspiracy to commit theft of public money in violation of 18 U.S.C. § 371, and

three counts of wire fraud in violation of 18 U.S.C. § 1343. We affirm his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Cormac J. Carney, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
conviction, but vacate the conditions of supervised release requiring him to abstain

from consuming alcohol and to avoid places where controlled substances are

illegally used or sold.

      The district court did not err in concluding that Brekke had not

unequivocally waived his right to counsel and in declining to hold a second Faretta

hearing. Throughout the pre-trial proceedings, Brekke made repeated,

contradictory statements about whether he wished to have the assistance of

counsel. These statements did not amount to an “explicit choice between

exercising the right to counsel and the right to self-representation” and were not

sufficient to allow a district court to be “reasonably certain” that Brekke

affirmatively waived his right to counsel. United States v. Arlt, 41 F.3d 516, 519

(9th Cir. 1994). Because Brekke did not make an “unequivocal request to proceed

pro se,” he was not entitled to a Faretta hearing. United States v. Farias, 618 F.3d

1049, 1051–52 (9th Cir. 2010). Nor did Brekke have a right to hybrid

representation. United States v. Olano, 62 F.3d 1180, 1193 (9th Cir. 1995).

      The district court did not abuse its discretion in denying Brekke’s motion to

substitute counsel. The court conducted a full ex parte hearing in September 2011

during which both parties aired their grievances with one another. This inquiry

“provide[d] a sufficient basis” for the court to reach an “informed decision” about


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the nature of the conflict between the parties, United States v. Adelzo-Gonzales,

268 F.3d 772, 777 (9th Cir. 2001), and to conclude that the relationship was

workable. The district court likewise did not err in failing to hold a second ex

parte hearing in February 2011, because by then it had a lengthy record of motions

and hearing transcripts on the issue of Brekke’s representation. A district court

need not conduct a hearing where the record already provides the basis for an

informed judgment. United States v. Smith, 282 F.3d 758, 764 (9th Cir. 2002).

The district court made a reasonable assessment of the nature of the conflict

between client and counsel, and its determination that the relationship remained

workable was not an abuse of discretion, particularly since the conflict was largely

the product of Brekke’s own unreasonableness and manufactured discontent. See

United States v. Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir. 2009).

      The district court did not plainly err in admitting certified contemporaneous

recordings of the date and time Brekke crossed into and out of the United States.

These certified border-crossing records, are “routine, objective cataloging of an

unambiguous factual matter,” United States v. Berry, 683 F.3d 1015, 1022 (9th Cir.

2012) (internal quotation marks omitted), that are not created in anticipation of

litigation, and therefore do not raise Confrontation Clause concerns. United States

v. Orzoco-Acosta, 607 F.3d 1156, 1163 (9th Cir. 2010).


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      The district court’s instructions to the jury during the forfeiture phase of the

trial did not violate Brekke’s due process rights. The comments did not distort or

add to the evidence presented at trial, United States v. Coutchavlis, 260 F.3d 1149,

1156 (9th Cir. 2001), nor did they create an appearance of partiality or advocacy on

behalf of one of the parties. United States v. Mostella, 802 F.2d 358, 361 (9th Cir.

1986). Even if the district court had erred in indicating that the forfeiture hearing

was “straightforward” and “shouldn’t take very long,” any error did not affect

Brekke’s substantial rights in light of the overwhelming evidence regarding the

illicit source of the funds in his PayPal account. United States v. Ameline, 409

F.3d 1073, 1078 (9th Cir. 2005) (en banc).

      The district court did plainly err, however, in imposing conditions of

supervised release requiring Brekke to abstain from the consumption of alcohol

and requiring him to avoid places where controlled substances are illegally used or

sold. Neither condition bears a reasonable relationship to Brekke’s characteristics,

the nature of his offense, or “to the risk that [Brekke] would return to his criminal

behavior,” United States v. Napulou, 593 F.3d 1041, 1045 (9th Cir. 2010), and the

record does not indicate any “individualized consideration” supporting their

imposition. United States v. Betts, 511 F.3d 872, 878 (9th Cir. 2007). Brekke’s

failure to cooperate with the probation office, without more, does not meet the


                                           4
government’s burden of proving by a preponderance of the evidence that a

particular condition of supervised release is necessary. Id. at 881 (citing United

States v. Weber, 451 F.3d 552, 558–59 (9th Cir. 2006)). Accordingly, we vacate

those conditions.

      AFFIRMED IN PART; VACATED IN PART.




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