                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-2004

USA v. Thomas
Precedential or Non-Precedential: Precedential

Docket No. 02-3840




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                       PRECEDENTIAL

                               Filed February 2, 2004

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 02-3840


        UNITED STATES OF AMERICA
                      v.
         VICTOR DARNELL THOMAS,
                             Appellant

On Appeal from the United States District Court
   for the Western District of Pennsylvania
            (D.C. No. 01-cr-00005J)
    District Judge: Hon. D. Brooks Smith

  Submitted Under Third Circuit LAR 34.1(a)
             January 12, 2004
 Before: SLOVITER, RENDELL and ALDISERT,
               Circuit Judges

           (Filed February 2, 2004)

               Shelley Stark
                Federal Public Defender
               Karen Sirianni Gerlach
                Assistant Federal Public Defender
                Counsel of Record
               Pittsburgh, PA 15222
                 Attorneys for Appellant
                              2


                      Mary Beth Buchanan
                       United States Attorney
                      Christine A. Sanner
                       Assistant United States Attorney
                      Bonnie R. Schlueter
                       Assistant United States Attorney
                      Pittsburgh, PA 15219
                        Attorneys for Appellee


                 OPINION OF THE COURT

SLOVITER, Circuit Judge.
   Victor Darnell Thomas appeals from the judgment of
conviction for possession with intent to distribute in excess
of five grams of cocaine base or crack in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and possession with
intent to distribute less than 500 grams of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He
raises two issues. First, he argues that the District Court
deprived him of his Sixth Amendment right to counsel
when it directed him to proceed pro se without conducting
an adequate colloquy after it found that Thomas had
waived and forfeited his right to counsel. Second, Thomas
argues that the District Court committed plain error by
failing to grant defense witness immunity sua sponte to two
witnesses who Thomas believed could offer exculpatory
evidence but who refused to testify based on the Fifth
Amendment.

                              I.
   Thomas was stopped by Pennsylvania State Troopers
following a confidential tip that he would be carrying illegal
drugs in his car console or glove compartment. When
Thomas refused to consent to a police search of the car, he
was permitted to leave but his car was impounded until the
police obtained a search warrant. After the police obtained
a search warrant, they found two bags of crack and powder
cocaine behind the glove box of Thomas’ car, which led to
his indictment.
                             3


  On June 4, 2001, William Difenderfer entered his
appearance for defendant. After representing Thomas in a
detention hearing, he moved to withdraw, citing non-
payment of his fees. Thomas opposed Difenderfer’s motion,
but “questioned” his “professionalism and Federal
experience.” App. at 54. The District Court granted
Difenderfer’s motion to withdraw.
   The District Court appointed Public Defender Marketa
Sims as Thomas’ second counsel on July 17, 2001. Sims
filed several motions on Thomas’ behalf, but moved to
withdraw in November because of a “breakdown of
communications” and because “she no longer ha[d] the
trust and confidence of her client.” App. at 69. At the
hearing on November 26, 2001, Thomas requested new
counsel, and the District Court granted Sims’ motion to
withdraw.
  The District Court next appointed Bruce Antkowiak as
Thomas’ third counsel. Following Antkowiak’s motion for a
continuance, the District Court re-scheduled Thomas’ trial
for March 18, 2002. On January 28, 2002, Antkowiak
moved to withdraw based on “a breakdown in
communications” with Thomas. App. at 80. The District
Court held a hearing on the motion on February 6, 2002.
At the hearing, Antkowiak described “one or more
acrimonious exchanges” that culminated in Thomas’
unwillingness “to speak and discuss matters critical to the
case.” App. at 89-90. Thomas testified that he couldn’t get
along with this counsel, but wasn’t “saying that [he
wouldn’t] get along with all [his] attorneys” and asked for
the appointment of another. App. at 94. The court
responded, “I want it clear to you there is no guarantee
you’re going to get another attorney.” App. at 94. It
explained that a “lawyer’s obligations do not stretch to
sharing with you every bit of his work product or her work
product.” App. at 99. Although the court granted the
motion to withdraw, it noted that the broken attorney-client
relationship was, in part, the product of the defendant’s
unreasonable expectations regarding the role of his attorney
and the defendant’s refusal to cooperate with counsel when
those expectations are not fulfilled.
                              4


  The District Court appointed Arthur McQuillen as
Thomas’ fourth counsel, but reiterated that a defendant
can, under certain circumstances, be deemed to have
waived his Sixth Amendment right based upon his conduct.
At a hearing conducted February 19, 2002, the District
Court repeatedly explained to Thomas the nature and
extent of his right to counsel, the attorney’s obligation to
accommodate all “reasonable requests” from Thomas, but
that unreasonable demands “may constitute what the law
considers misconduct by the Defendant client” and that
such misconduct “may constitute a waiver of [his] right to
counsel.” App. at 125-26. The Court reminded Thomas he
was not entitled to an attorney who would docilely take
orders from Thomas or share his precise view of the
appropriate case strategy.
  Thomas initially stated that he did not understand the
concept of waiver, despite the court’s first explanation. The
District   Court   again    undertook     to   explain    that
unreasonable demands upon counsel could lead to a waiver
of his right to counsel:
    Court: . . . if you have a case where there have been
    repetitive terminations of counsel and the Court can
    conclude that there is misconduct on the part of a
    client/defendant then that misconduct may be
    construed as a waiver of this 6th Amendment right to
    counsel with the implications being then that you
    would have to represent yourself?
    Thomas: Yes, Your Honor.
App. at 127-28. The District Court further explained that if
Thomas were found to have waived his right to counsel by
conduct, Thomas could be forced to proceed pro se at trial
and could face a range of penalties. The court underscored
the substantial difficulty Thomas might face in complying
with the Federal Rules of Procedure and conducting a
defense without legal training or knowledge. Following the
hearing, Thomas’ trial was continued until May 13, 2002 to
permit McQuillen time to prepare Thomas’ defense and
collaborate with the court-appointed investigator.
  On April 15, 2002, McQuillen moved to withdraw as
counsel for Thomas, citing Thomas’ alleged request that he
                             5


do so. At an April 17, 2002 hearing, Thomas denied
requesting that McQuillen withdraw, but did not object to
his withdrawal. McQuillen stated that after he informed
Thomas that the case file did not contain a list of potential
witnesses or an overview of the facts, Thomas refused to
furnish these materials. Thomas instead insisted that
McQuillen file a second motion to suppress after the court
already denied the first one, pursue an Interstate
Agreement on Detainers Act argument McQuillen found to
be baseless, and defend Thomas in state proceedings
beyond McQuillen’s appointment.
   On a April 9, 2002 visit to Thomas’ prison, Thomas tore
up a letter from McQuillen explaining the possible
sentencing guidelines that Thomas might face. McQuillen
and Thomas became angry with another and began yelling,
until Thomas said, “Let’s stop this before we get into a
physical confrontation.” App. at 163. In a subsequent
telephone conversation, Thomas requested that McQuillen
come to the prison, but McQuillen refused; Thomas
screamed, “Why don’t you withdraw from the case?” and
hung up. App. at 151. McQuillen then filed to withdraw as
Thomas’ counsel.
   On April 19, 2002, the District Court granted McQuillen’s
motion to withdraw and concluded that Thomas had
forfeited or, in the alternative, waived his Sixth Amendment
right to counsel by his continued misconduct. In its April
19, 2002 Memorandum Opinion, the District Court stated:
    When Thomas’ previous defense counsel, Attorney
    Antkowiak, filed his motion to withdraw, I believed that
    Thomas might be engaging in dilatory tactics to delay
    trial. For that reason, at the time I appointed Attorney
    McQuillen to represent Thomas, I held a hearing at
    which I warned Thomas that his refusal to cooperate
    with defense counsel would result in the waiver of his
    Sixth Amendment right. As I explained above, I
    unequivocally warned Thomas of the difficulties he
    would face if he proceeded pro se, the procedural
    requirements with which he would have to comply, the
    nature of the charges against him, and the possible
    range of punishments that could be imposed upon
    him. More importantly, I explained that he could not
                             6


    make unreasonable demands upon his defense
    counsel, and that if he continued to do so, or otherwise
    refused to cooperate reasonably with his court-
    appointed counsel, I would treat his conduct as an
    implied request to proceed pro se. Most importantly,
    Thomas told me at the hearing on February 19, 2002,
    that he understood the possibility that his Sixth
    Amendment right to counsel could be waived by his
    conduct. Thomas further reiterated his understanding
    of that possibility at the most recent hearing held on
    April 17, 2002. . . . Thomas acknowledg[ed] that “if
    there’s a conflict on my part, that this Court does not
    have to appoint me a further court-appointed counsel.”
    Furthermore, I sent a copy of my earlier opinion
    discussing the possibility of a waiver by conduct to
    Thomas at the Cambria County Prison. . . . [T]here can
    be no doubt that Thomas understood what was at
    stake when he decided whether or not to cooperate
    with his defense counsel in a reasonable manner.
App. at 16 (internal citations omitted). The court then noted
that Thomas engaged in the type of misconduct that the
court “warned him could constitute a waiver by conduct of
his Sixth Amendment right to counsel.” App. at 17. The
court interpreted Thomas’ actions as “as a request to
represent himself at trial, with full knowledge of the risks
and difficulties he will confront pro se.” App. at 18.
   On April 24, 2002, the court appointed Russell Heiple as
standby counsel for Thomas’ trial. Less than two months
after Heiple was appointed and a few weeks before Thomas’
trial was scheduled to begin, Thomas attempted to remove
him as standby counsel. The District Court denied Thomas’
motion.
  Prior to trial, Thomas attempted to subpoena James
Stager, the car dealer who sold Thomas his car, and his
assistant, Patty Kapustka. Both Stager and Kapustka
invoked the Fifth Amendment and refused to testify. During
closing arguments, however, Thomas accused them of
planting the drugs in his car. Thomas alleged that 1) Stager
had possession of the car four days prior to its seizure by
the police, 2) Stager planted the drugs during that time,
                             7


and 3) Kapustka removed Thomas’ wife’s name from the car
title.
  Thomas was convicted by a jury on both counts and was
sentenced to an imprisonment term of 210 months and a
$20,000 fine.

                             II.
   The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over Thomas’ argument that the
District Court violated his Sixth Amendment right to
counsel. United States v. Leggett, 162 F.3d 237, 249 (3d
Cir. 1998). We review the District Court’s failure to grant
two defense witnesses immunity sua sponte for plain error.
Fed. R. Crim. P. 52(b).
A. Sixth Amendment Right to Counsel: Forfeiture and
Waiver
  The Sixth Amendment provides, “In all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. The Sixth Amendment, however, is not absolute.
A defendant may lose his or her right to counsel through
forfeiture or waiver. Leggett, 162 F.3d at 249.
   As the District Court properly noted, forfeiture and
waiver are separate, distinct concepts. Waiver involves the
“intentional and voluntary relinquishment of a known
right.” United States v. Goldberg, 67 F.3d 1092, 1099 (3d
Cir. 1995). Waiver of the right to counsel must be knowing,
voluntary and intelligent. United States v. Salemo, 61 F.3d
214, 218 (3d Cir. 1995). It is clear from the Supreme
Court’s decision in Farretta v. California, 422 U.S. 806, 835
(1975), and this court’s decision in United States v. Welty,
674 F.2d 185, 188 (3d Cir. 1982), that the district court
must undertake an affirmative on-the-record colloquy to
explain to the defendant the possibility of waiver and give
the defendant “an awareness of the dangers and
disadvantages inherent in defending oneself.” Welty, 674
F.2d at 188. A “defendant’s waiver of counsel can be
deemed effective only where the district court judge has
                             8


made a searching inquiry sufficient to satisfy him that the
defendant’s waiver was understanding and voluntary.” Id.
at 189.
  Although waiver most commonly is effected by an
“affirmative, verbal request” to proceed pro se, waiver also
may be effected by conduct. Goldberg, 67 F.3d at 1099. If
the district court has warned the defendant that he will lose
his attorney if he engages in dilatory misconduct, “any
misconduct thereafter may be treated as an implied request
to proceed pro se and, thus, as a waiver of the right to
counsel.” Id. at 1100.
   By contrast, “forfeiture results in the loss of a right
regardless of the defendant’s knowledge thereof and
irrespective of whether the defendant intended to relinquish
the right.” Id. at 1100. A court may find that a defendant
has forfeited his or her right to counsel after having
engaged in “extremely dilatory conduct” or “extremely
serious misconduct.” Id. at 1101, 1102. Forfeiture can be
found “regardless of whether the defendant has been
warned about engaging in misconduct, and regardless of
whether the defendant has been advised of the risks of
proceeding pro se.” Id. at 1101. In United States v. McLeod,
53 F.3d 322 (11th Cir. 1995), the court found forfeiture
based on a defendant’s verbal abusiveness, threats to harm
an attorney, and attempts to make an attorney engage in
unethical activities. We have cited McLeod approvingly in
Leggett, 162 F.3d at 250, and Goldberg, 67 F.3d at 1100.
   With respect to forfeiture, Thomas argues that the
District Court erred in holding that he threatened his
attorney and engaged in “extremely serious misconduct.”
The District Court did not err in concluding that Thomas’
statement — that Thomas and McQuillen should stop
yelling at one another before they became involved in a
“physical confrontation” — constituted a threat. Moreover,
the District Court did not rely solely on Thomas’ threat in
finding forfeiture. Indeed, the District Court also
emphasized that Thomas had been verbally abusive to
McQuillen, tore up his correspondence, refused to
cooperate in producing a witness list, and hung up on him
during a telephone conversation. Further, Thomas
attempted to force McQuillen to file several meritless,
                             9


frivolous claims, such as ones regarding the Interstate
Detainers Act and suppression. Perhaps most critically,
Thomas engaged in this sort of misconduct not once, but in
relationships with four attorneys. The District Court
properly found that Thomas forfeited his right to counsel.
   The District Court also found, in the alternative, that
Thomas’ continued unreasonable demands and conduct
toward his counsel constituted a waiver of counsel.
Thomas’ challenge to the District Court’s waiver finding is
three-fold. First, Thomas emphasizes that he did not waive
his right to counsel because he “continually asserted a
desire for counsel.” Appellant’s Br. at 31. Thomas’
continued desire for counsel, however, is irrelevant. As this
court has stated previously, waiver by conduct nonetheless
may apply, “regardless of whether the defendant
affirmatively wishes to part with that right.” Goldberg, 67
F.3d at 1101 (describing waiver by conduct despite
defendants “vehement[ ] object[ions] to being forced to
proceed pro se”).
   Second, Thomas argues that the District Court’s colloquy
on the dangers of pro se representation was “ineffective”
because it was conducted “long before” the District Court
ordered Thomas to proceed pro se. Appellant’s Br. at 31-32.
Thomas’ suggestion that the District Court should have
timed the Farretta/Welty colloquy on the eve of counsel’s
motion to withdraw is a novel one unsupported by case law.
See Goldberg, 67 F.3d at 1100 (“Once a defendant has been
warned that he will lose his attorney if he engages in
dilatory tactics, any misconduct thereafter may be treated
as an implied request to proceed pro se and, thus, as a
waiver of the right to counsel.”) (citations omitted)
(emphasis added). The purpose of a Farretta/Welty colloquy
is to provide the defendant with notice that continued
misconduct may result in the waiver of one’s right to
counsel; thus, we focus on whether Thomas was warned of
the possible consequences, not whether the warning
immediately preceded the District Court’s order that the
defendant must proceed pro se. Moreover, the District
Court’s February 2002 warning colloquy was undertaken
on the heels of McQuillen’s appointment as counsel; thus,
the clear implication of the District Court’s warning was
                            10


that if Thomas continued to engage in misconduct with
McQuillen, his misconduct would be interpreted as a waiver
of counsel.
   Lastly, Thomas alleges that the colloquy was ineffective
because he did not understand its implications. Thomas’
assertion is not supported by the record evidence. The
District Court explained to Thomas, and Thomas
represented that he understood the nature of the charges
against him, the range of punishments that he might face,
and the possibility that continued misconduct could annul
his right to counsel. The District Court also explained that
self-representation “is very difficult and imposes numerous
obstacles,” such as conformance with the Federal Rules of
Criminal Procedure and Evidence and the detriment a non-
lawyer would face based on his “lack of knowledge of [ ]
substantive law” and his “dual role” as both attorney and
defendant. App. at 132-33. These admonitions track the
problematic aspects of proceeding pro se that we referred to
as examples of what a court should discuss with a potential
pro se defendant in Welty, 674 F.2d at 188, and that we
cited with approval thereafter in United States v. Stubbs,
281 F.3d 109, 118 (3d Cir. 2002). After the District Court
mentioned these potential difficulties, Thomas represented
that he understood. Nothing in the record suggests
otherwise and this court finds no reason to look behind
Thomas’ proffered understanding.
   Thomas     also   argues     that   the   colloquy   was
constitutionally insufficient because the District Court
failed to instruct him on defenses or mitigating
circumstances. Indeed, Welty states that “a defendant’s
waiver must be made with an apprehension of . . . possible
defenses to the charges and circumstances in mitigation
thereof, and all other facts essential to a broad
understanding of the whole matter.” 674 F.2d at 188-89
(quoting Von Moltke v. Gillies, 332 U.S. 708, 724 (1948)
(plurality opinion)). However, that language has been
interpreted as listing illustrative examples of factors that
courts might discuss, not a mandatory checklist of required
topics. As this court has explained:
    These examples of what a trial court should say were
    never intended to serve as a rote dialogue, in the
                             11


    absence of which, a defendant’s waiver of counsel
    would be per se invalid. While it is unquestionable that
    a colloquy between the defendant and trial judge is the
    preferred method of ascertaining that a waiver is
    voluntary, knowing and intelligent, we have explicitly
    declined to require a detailed list of advice such as that
    mandated for guilty plea proceedings conducted
    pursuant to Rule 11 of the Federal Rules of Criminal
    Procedure. Welty, 674 F.2d at 189. Rather, the proper
    measurement of the effectiveness of a defendant’s
    waiver of counsel is whether the district court judge
    has made “a searching inquiry sufficient to satisfy him
    that the defendant’s waiver was understanding and
    voluntary.” Id.
Gov’t of Virgin Islands v. James, 934 F.2d 468, 473-74 (3d
Cir. 1991); see also Gov’t of Virgin Islands v. Charles, 72
F.3d 401, 404 (3d Cir. 1995) (“There is no rote speech that
the court must recite.”); United States v. Salemo, 61 F.3d at
220 (“We have not previously, nor do we now, require a rote
dialogue” for a Welty/Farretta colloquy). Although in our
opinion in United States v. Peppers, 302 F.3d 120, 127-37
(3d Cir. 2002), we listed a series of questions that we
believe would provide a “useful framework” in order to
ascertain whether a defendant understands the risks of
proceeding pro se, we did not overrule our previous
discussion, nor did we mandate a certain “script,”
especially in situations where we were confident that the
defendant was cognizant of the potential problems he would
face. This is such a situation. We note, also, that our
opinion in Peppers was issued after the events that
occurred here, and the District Court’s discussion with
Thomas that included the points referred to in Welty and
Stubbs was in accordance with Third Circuit precedent.
  We have, however, held that the district court must
address the ranges of punishments to which the defendant
may be exposed at trial. See, e.g., United States v.
Moskovits, 86 F.3d 1303, 1308 (3d Cir. 1996). In this case,
the District Court did describe the potential sentences
Thomas faced, and Thomas does not argue to the contrary.
  After review of the record, we conclude that the District
Court properly held that Thomas understood the concept of
waiver by conduct and Thomas’ waiver was valid.
                              12


B.   Defense Witness Immunity
   Thomas alleges that his central theory of the case was
that Stager planted the drugs in his car and Kapustka
altered Thomas’ car title to reflect his name alone. Although
Thomas attempted to call James Stager and Patty Kapustka
as witnesses, they both invoked the Fifth Amendment.
Thomas testified that Stager was “curbstoning”: selling cars
to Thomas for low prices so that the cars could be
accounted for during monthly bank audits. Thomas
testified that his car was on Stager’s lot for a bank audit
the day before his car was stopped by the police and that
Stager planted the drugs during that period.
  Thomas alleges that without Stager and Kapustka’s
testimony he was unable to present his theory of defense.
Had the District Court informed him that they could have
been immunized, Thomas would have pursued this avenue
of inquiry.
   Courts have the inherent authority to immunize a
witness capable of providing exculpatory evidence, but “the
opportunities for judicial use of this immunity power must
be clearly limited.” Gov’t of Virgin Islands v. Smith, 615 F.2d
964, 972 (3d Cir. 1980). In order to obtain defense witness
immunity, several conditions apply: immunity must be
properly sought in district court; the defense witness must
be available to testify; the proffered testimony must be
clearly exculpatory and essential; and there must be no
strong governmental interests which countervail against a
grant of immunity. Id.
  Although Smith requires that the immunity must be
properly sought in district court, Thomas suggests that he
should be excused from this requirement because he would
have sought immunity had he known of it. Thomas claims
that the court plainly erred by failing to alert him of the
possibility of defense witness immunity.
  Thomas cites no case law suggesting that the district
court must raise the issue of defense witness immunity sua
sponte, whether for a pro se defendant or one represented
by counsel. The district court must remain a fact-finder
that should not assume the role of advocate by directing
the defendant to pursue particular lines of strategy or
                             13


defense. If Thomas believed that Stager and Kapustka’s
testimony was critical to his defense, he should have
consulted with the standby counsel appointed by the court.
Given Thomas’ failure to avail himself of the resources
offered by the court-appointed standby counsel, the District
Court did not err by failing to grant defense witness
immunity sua sponte.
   Moreover, even if Thomas had raised the issue in the
District Court, Thomas could not have met the test outlined
in Smith because the witnesses’ testimony would not have
been “clearly exculpatory.” As we stated in United States v.
Ammar, 714 F.2d 238, 251 n.8 (3d Cir. 1983), judicial
immunity is properly denied where the exculpatory nature
of the proffered testimony is “at best speculative.” Even if
Stager and Kapustka admitted to having been involved in
illegal “curbstoning,” at least two other witnesses offered
testimony that undercut Thomas’ theory that Stager
planted drugs in his car. Thomas’ girlfriend, Heather Barr,
testified that after Thomas’ car was impounded Thomas
told her that he already knew that drugs were in his car.
Also, Barr stated that Thomas attempted to remove the
drugs from his car in the police impoundment and fled to
State College in order to avert being arrested when the
police found the drugs. In addition, Glenda Ritchick,
Stager’s office manager and bookkeeper, testified that
Thomas’ car was not on Stager’s car lot during the
February 26, 2001 bank audit, a day before Thomas’
vehicle was seized by the police. Barr and Ritchick’s
testimony thus undermine Thomas’ defense of having no
knowledge that there were drugs in his car and believing
that Stager planted the drugs during the bank audit.
Because a credibility determination would have been
required in order to determine which parties were more
credible, Stager and Kapustka’s testimony would not have
been “clearly exculpatory,” as required under Smith. The
District Court did not clearly err in failing to grant defense
witness immunity to Stager and Kapustka.
  We will affirm the judgment of the District Court.
                            14




A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
