                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               MAR 27 2003
                                       TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                  No. 02-4072
                                                      (D. Ct. No. 2:00-CR-197K)
 WAYNE FRANK BARBUTO,                                          (D. Utah)

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, HOLLOWAY, and KELLY, Circuit Judges.



      Defendant-Appellant Wayne Frank Barbuto was convicted of two counts of

possession of firearms and ammunition by a restricted person, 18 U.S.C. § 922(g), and

one count of dealing in firearms without a license, 18 U.S.C. § 922(a)(1). Mr. Barbuto

filed a timely notice of appeal on April 23, 2002. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and AFFIRM.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                      I. Background

       In April of 2000, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) began

investigating Mr. Barbuto, based on reports that he had illegally sold firearms. At a gun

show, ATF agents purchased a 50-caliber firearm from Mr. Barbuto. Subsequently, the

ATF agents contacted Mr. Barbuto and arranged to purchase two more 50-caliber

firearms. Following these transactions, the ATF agents arrested Mr. Barbuto and

executed a search warrant for his home. The search uncovered equipment used in the

manufacture of firearms.

       Following his arrest, the government charged Mr. Barbuto with one count of

possession of a firearm by a restricted person, one count of possession of ammunition by

a restricted person, and one count of dealing in or manufacturing firearms without a

license.1

       The district court initially appointed Mark Moffat to represent Mr. Barbuto, but

Mr. Moffat later filed a motion to withdraw, based on Mr. Barbuto’s desire to represent

himself. The district court granted Mr. Barbuto’s request, but assigned Mr. Moffat as

standby counsel. Several months later, Mr. Moffat filed a motion to withdraw as standby

counsel, based on a conflict that had developed between him and Mr. Barbuto. The

district court granted the motion, and then appointed Richard MacDougall as standby



       1
         Mr. Barbuto did not have a license to manufacture or deal firearms, and he had a
prior felony conviction in 1967.

                                           -2-
counsel.

      After numerous continuances, the district court set the trial date for December 17,

2001. On the day of trial, the following colloquy occurred between the district court and

Mr. Barbuto:

      Mr. Barbuto: For and on the record, I am not the defendant. I am here by
      special visitation. I am the secured party in this matter. I have an interest in
      the debtor. My name is spelled upper-case W, lower-case A, lower-case Y,
      lower-case N, lower-case E, upper-case B, lower-case A, lower-case R,
      lower-case B, lower-case U, lower-case T, lower-case O. My name is
      property. If there is any use of my name, I need to be paid. I do not consent
      to my all-capital-letter name being used for commercial gain without my
      consent, which is herewith denied.

      Court: Thank you, Mr. Barbuto. For the record, you are the criminal
      defendant in this case, and your name will be used as necessary throughout
      this trial as it is in every trial in which a person is involved. Now, are you
      going to represent yourself, or not?

      Mr. Barbuto: Are we doing business here?

      Court: We are. We are doing business in the sense that we are going to
      proceed with the trial. We are certainly not doing business for commercial
      gain by the use of your name. Now, my question is, are you going to
      represent yourself and proceed with this trial or not?

      Mr. Barbuto: I am myself.

      Court: Are you going to represent yourself in this trial?

      Mr. Barbuto: I am myself. I am not the defendant.

      Court: You are the defendant. Are you going to represent yourself?

      Mr. Barbuto: I have a security interest in the defendant which I can prove
      from the UCC 1 file. Would you like to see a copy?


                                           -3-
      Court: Actually, I’ve seen a copy of it. All right, Mr. Barbuto, you’re
      obviously not going [to] follow the rules of this Court. I terminate the right
      to represent yourself. Mr. MacDougall will represent you, and we’ll
      proceed with the trial.

             Does the government have any comment on that? And the Court has
      the right to terminate the defendant’s right to represent himself when he
      won’t comply with the rules of court. He won’t sit at counsel table, and
      he’s apparently not going to proceed.

             Mr. MacDougall?

      Mr. MacDougall: Your Honor, I will do my best, but I will indicate for the
      last month I haven’t had any contact with Mr. Barbuto.

      Court: I understand.

      Mr. MacDougall: And I have really not been able to put this case together
      for trial, but I will simply labor along the best I can.[2]

                                      **********

                               (Conference at the Bench.)

      Court: Mr. Barbuto, are you ready to take your seat at the table and
      represent yourself in this matter?

      Mr. Barbuto: As a secured party, I have no business testifying.

      Court: So you’re not going to participate? Is that what you are telling me?

      Mr. Barbuto: I am not going to testify, as I am the secured party.

      Court: As a criminal defendant, you have the right to testify or not testify.
      My question is, are you going to come up here and help pick a jury and
      make an option (sic) statement? Are you going to cross examine witnesses?


      2
       Mr. MacDougall made similar comments during the district court’s December 13,
2001 hearing.

                                           -4-
Mr. Barbuto: Are you going to order me to do that?

Court: No. Actually, to be honest with you, I’d prefer that Mr. McDougall
represent you rather than you represent yourself, but you have the right to
represent yourself, but you have got to go ahead and do it if you’re going to
exercise that right. If you don’t represent yourself and exercise the right
and do what people do who represent clients like you, you forfeit the right
to represent yourself.

       Are you going to represent yourself or not? If you’re going to
represent yourself, or not, you’re going to follow the rules of trial as I’ve
been telling you for six months. What are you going to do?

Mr. Barbuto: I have no business testifying here. Do you have a claim
against me?

Court: The United States has brought a criminal action against you, as you
know.

Mr. Barbuto: Does anyone in this courtroom have a claim against me?

Court: The United States has brought a criminal action against you, as you
well know, by an Indictment by a Grand Jury, as you well know.

Mr. Barbuto: May I cross examine the United States on the stand?

Court: You bet you can. When you’re representing yourself, you can cross
examine the witnesses that the United States presents against you to make
its case.

Mr. Barbuto: I do not represent myself, I am myself.

Court: You’ve just lost the right to represent yourself. Whether this trial
goes forward now or later, you’re not going to represents (sic) yourself.

                          (Conference at the bench.)

Court: Let’s go ahead. Bring the jury panel in.

       The Court finds that the defendant has been completely

                                      -5-
       uncooperative, and as is the Court’s prerogative, the Court terminates the
       defendant’s right to represent himself under well-established law.
       Therefore, defendant will be represented in this matter by Mr. Richard
       MacDougall who is standby counsel.

After the district court decided to have Mr. MacDougall represent Mr. Barbuto, the case

proceeded to trial.

       Following trial, a jury found Mr. Barbuto guilty on two counts of possession of

firearms and ammunition by a restricted person, 18 U.S.C. § 922(g), and one count of

dealing in firearms without a license, 18 U.S.C. § 922(a)(1). This appeal followed.

                                        II. Discussion

       On appeal, Mr. Barbuto raises two arguments. First, he argues that the district

court violated his Sixth Amendment right to represent himself at trial. Second, Mr.

Barbuto argues that the district court erred in appointing Mr. MacDougall to represent

him without granting a continuance of the trial. We consider each contention in turn.

       A.     Whether the District Court Violated Mr. Barbuto’s Sixth Amendment Right

              to Represent Himself at Trial.

       In considering Mr. Barbuto’s claim under the Sixth Amendment, we review the

district court’s findings of historical fact for clear error, while we review the ultimate

determination of whether a constitutional violation occurred de novo. See United States

v. Mackovich, 209 F.3d 1227, 1236 (10th Cir. 2000).

       “A criminal defendant has a constitutional and a statutory right to self-

representation.” Id. To invoke the right, a criminal defendant must (1) “‘clearly and

                                             -6-
unequivocally’ assert his intention to represent himself,” (2) “make this assertion in a

timely fashion,” and (3) “‘knowingly and intelligently’ relinquish the benefits of

representation by counsel.” Id. (citations omitted). Further, the right to self-

representation is not absolute. United States v. Akers, 215 F.3d 1089, 1097 (10th Cir.

2000). In certain instances, “a court may terminate the right to self-representation, or the

defendant may waive it, even after he has unequivocally asserted it.” Munkus v. Furlong,

170 F.3d 980, 984 (10th Cir. 1999) (citation omitted).

       In this case, the trial court initially granted Mr. Barbuto’s request to proceed pro

se. However, by refusing to respond to the district court’s inquiries regarding his

intention to continue representing himself, Mr. Barbuto forfeited his Sixth Amendment

right to self-representation. As in United States v. Bennett, “[t]he record does not show

that the defendant took a clear and unequivocal position on self-representation, and the

ruling of the trial court was justified.” 539 F.2d 45, 51 (10th Cir. 1976). In addition, as

the government points out, it is difficult to see how the district court could have

proceeded without receiving a response from Mr. Barbuto regarding his decision on

whether to continue representing himself.3 See United States v. Brock, 159 F.3d 1077,

1081 (7th Cir. 1998) (“[Defendant’s] steadfast refusal to answer the court’s questions



       3
          In other words, we do not simply deal with a defendant’s failure to respond to a
question from the court. Rather, the question at issue — whether defendant intended to
proceed pro se — was one that the district court had a duty to address prior to proceeding
to trial.

                                            -7-
made it extremely difficult for the court to resolve threshold issues, such as whether the

defendant would be represented by counsel.”); United States v. Reddeck, 22 F.3d 1504,

1510 (10th Cir. 1994) (“We have repeatedly shown concern with the use of the right to

waive counsel as a ‘cat and mouse’ game with the courts.”). Mr. Barbuto’s non-

responsiveness implicated not only his Sixth Amendment right to self-representation, but

also his Sixth Amendment right to assistance of counsel. Cf. United States v. Mackovich,

209 F.3d 1227, 1237 (10th Cir. 2000) (“In ambiguous situations created by a defendant’s

vacillation or manipulation, we must ascribe a ‘constitutional primacy’ to the right to

counsel because this right serves both the individual and collective good, as opposed to

only the individual interests served by protecting the right of self-representation.”)

(internal quotations, quotation marks, and citations omitted).

       Based on the above, we affirm the district court’s decision revoking Mr. Barbuto’s

right to self-representation.

       B.     Whether the District Court Erred in Appointing Counsel to Represent Mr.

              Barbuto Without Granting a Continuance of the Trial.

       “We review denial of a motion to continue for abuse of discretion, assigning error

only if the district court’s decision was ‘arbitrary or unreasonable and materially

prejudiced the [defendant].’” United States v. McKneely, 69 F.3d 1067, 1076-77 (10th

Cir. 1995) (quoting United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990)).




                                            -8-
       In this case, defense counsel did not request a continuance.4 Thus, the issue we

must consider is whether the district court’s failure to sua sponte grant a continuance on

the day trial was set to begin amounted to an abuse of discretion. The answer is plainly

no.

       In determining whether the denial was “arbitrary or unreasonable,” we must

examine a number of factors, including:

       [1] the diligence of the party requesting the continuance; [2] the likelihood
       that the continuance, if granted, would accomplish the purpose underlying
       the party’s expressed need for the continuance; [3] the inconvenience to the
       opposing party, its witnesses, and the court resulting from the continuance;
       [4] the need asserted for the continuance and the harm that appellant might
       suffer as a result of the district court’s denial of the continuance.

Rivera, 900 F.2d at 1475.

       Here, in addition to defense counsel’s failure to request a continuance, all the

Rivera factors militate in favor of rejecting Mr. Barbuto’s claim. First, the record

demonstrates that Mr. Barbuto’s actions were the antithesis of diligent. Second, based on

Mr. Barbuto’s continued refusal to speak to Mr. MacDougall, it is highly unlikely that any

continuance would have materially improved Mr. MacDougall’s preparation for trial.

Third, given that trial was set to begin on the day Mr. Barbuto suggests that the district

court should have granted a continuance, coupled with the district court’s prior three-



       4
         To the extent Mr. Barbuto may assert that his counsel improperly failed to seek a
continuance, this claim is not before us. Mr. Barbuto raised no Sixth Amendment
ineffective assistance claims, and we express no opinion on any such claim.

                                            -9-
month postponement of trial, a further continuance would have resulted in extreme

prejudice to the government, its witnesses, and the court. Finally, Mr. Barbuto points to

no evidence of actual (as opposed to the potential for) prejudice.

       For all these reasons, we reject Mr. Barbuto’s argument challenging the district

court’s failure to sua sponte grant a continuance on the day of trial.

                                      III. Conclusion

       In light of the preceding, we AFFIRM.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Chief Circuit Judge




                                            - 10 -
