                                                        FILED
                                            United States Court of Appeals
                 UNITED STATES COURT OF APPEALS     Tenth Circuit

                        FOR THE TENTH CIRCUIT                  December 20, 2018
                        _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                  No. 18-3032
                                          (D.C. No. 5:12-CR-40014-DDC-1)
STEVEN E. COUCH, JR.,                                 (D. Kan.)

       Defendant - Appellant.
                      ________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BACHARACH, BALDOCK, and PHILLIPS, Circuit Judges.
                 _________________________________

      This appeal grew out of Mr. Steven Couch’s request for hybrid

representation: He wanted to represent himself, but he also wanted to share

the representation with an attorney. Hybrid representation isn’t a

constitutional right, but it can be allowed in the district court’s discretion.

      The court didn’t allow hybrid representation for Mr. Couch. If the

court was simply exercising its discretion, there would have been no error.

But if the district court had mistakenly thought that it lacked discretion,

there would have been an error. So we must interpret the record to decide


*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But this order and judgment may be cited as otherwise appropriate. See
Fed. R. App. P. 32.1(a); Tenth Cir. R. 32.1(A).
whether the district court had denied hybrid representation based on its

discretion or a legal mistake about the availability of discretion. The

record is ambiguous, which requires us to infer that the court recognized

its discretion. We therefore affirm.

1.    The district court disallows hybrid representation.

      The underlying dispute arose in Mr. Steven E. Couch Jr.’s hearing on

the government’s petition to revoke supervised release. Mr. Couch was

represented by counsel, but he asked the court to allow pro se briefing and

oral argument. The district court pointed out that Mr. Couch had no

constitutional right to hybrid representation, rejected his request, and

required him to choose between representing himself and acting through

counsel.

      Mr. Couch refused to choose between the two, so the court directed

Mr. Couch to proceed through his counsel. The court later revoked Mr.

Couch’s supervised release, leading to this appeal.

2.    District courts abuse their discretion if they rely on a mistaken
      belief that hybrid representation is never allowed.

      The Supreme Court has recognized a constitutional right to self-

representation, but not to simultaneous self-representation and

representation by counsel (known as hybrid representation). See McKaskle

v. Wiggins, 465 U.S. 168, 183 (1984) (no constitutional right to hybrid

representation); Faretta v. California, 422 U.S. 806, 819 (1975)


                                       2
(constitutional right to self-representation). 1 District courts have discretion

over whether to allow hybrid representation. United States v. Treff, 924

F.2d 975, 979 n.6 (10th Cir. 1991).

      The district court disallowed hybrid representation, and we review

that ruling for an abuse of discretion. United States v. Hale, 762 F.3d

1214, 1219–20 (10th Cir. 2014). When reviewing for an abuse of

discretion, we presume that “[t]rial judges . . . know the law and [how] to

apply it in making their decisions.” Walton v. Arizona, 497 U.S. 639, 653

(1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609

(2002). But a district court abuses its discretion when basing the decision

on an erroneous legal conclusion. Kansas v. United States, 249 F.3d 1213,

1227 (10th Cir. 2001). So the court would have abused its discretion if it

had mistakenly thought that it couldn’t allow hybrid representation.

3.    When the record is ambiguous, we infer that the court understood
      that it had discretion.

      If a court makes a potentially erroneous statement, we can consider

the broader context to determine whether the statement reflects a correct

understanding of the law. United States v. Franke, 1995 WL 298137, at

*5–6 (10th Cir. May 16, 1995) (unpublished). But even when we consider

context, the record sometimes remains ambiguous. When ambiguity

remains, we ordinarily infer that the district court correctly understood the

1
      Mr. Couch contends that the Supreme Court should reconsider this
question. See Appellant’s Opening Br. at 22–23.
                                       3
law. United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005).

For example, when a district court enjoys discretion over sentencing, we

generally infer that the court recognizes this discretion when the record is

ambiguous. See, e.g., United States v. Fortier, 180 F.3d 1217, 1231 (10th

Cir. 1999) (“[W]e treat ambiguous statements made by district judges as

though the judge was aware of his or her legal authority to depart but

chose instead, in an exercise of discretion, not to depart.”).

4.    The record is ambiguous as to whether the district court
      recognized its discretion to allow hybrid representation.

      The court disallowed Mr. Couch hybrid representation, and the

record is ambiguous as to whether the court recognized its discretion or

misunderstood the law.

      The hearing began with the court inviting Mr. Couch to address legal

representation. With this invitation, Mr. Couch asked for an opportunity to

file and argue his own pro se motions along with those filed by his

attorneys. Mr. Couch admitted that previous judges had been reluctant to

permit hybrid representation. The court replied:

      THE COURT: Well, here’s-- the thing. You’re right, that under
      the Constitution, you have a right to represent yourself in this
      hearing. Here’s-- there are a couple of impediments. One is
      that, typically, in this setting we don’t do sort of halfway. You
      either represent yourself or you're represented by counsel. We
      don’t do kind of hybrid arrangements like that, because it
      creates more problems than I can solve.

R., vol. I at 116 (emphasis added).


                                       4
      This reply suggests that the district court understood its discretion.

“The term ‘discretion’ denotes the absence of a hard and fast rule.”

Langnes v. Green, 282 U.S. 531, 541 (1931). And the district court’s

language contains three indications that there was no hard-and-fast rule.

      First, the court used the word “typically,” which suggests that hybrid

representation is occasionally granted. R., vol. I at 116; see SR Int’l

Business Ins. Co. v. World Trade Center Props., LLC, 467 F.3d 107, 128

(2d Cir. 2006) (stating that a jury instruction on what insurance coverage

terms “typically” governed did not preclude the applicability of contrary

coverage terms); see also Conkright v. Frommert, 559 U.S. 506, 530 (2010)

(Breyer, J., dissenting) (arguing that “the word ‘ordinarily’ confirms” the

existence of situations in which courts will do the opposite); Fisher v.

State, 367 Md. 218, 238, 786 A.2d 706, 718 (Md. 2001) (same).

      Second, the court explained that hybrid representation “creates more

problems than [it] can solve.” R., vol. I at 116. This statement suggests

that the district court understood its discretion and had already decided to

disallow hybrid representation because of the problems that could arise.

Cf. United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993)

(“The district court’s use of the phrase ‘not going to’ indicates that it was

aware it had the ability to exercise its discretion but chose not to.”).

      Third, the court stated: “[I]f you make a knowing waiver of your

right to counsel, you do have a right to represent yourself. Let me explain

                                       5
what you do not have a right to do, and that is a little bit of column A and

a little bit of column B.” R., vol. I at 122. This statement was correct,

suggesting that the court understood that it had discretion. See United

States v. Franke, 1995 WL 298137 at *5 (10th Cir. May 16, 1995)

(unpublished) (holding that when a court articulates the correct

constitutional standard on hybrid representation, “it [is] clear that the

judge correctly understood the governing law and did exercise discretion”).

      Mr. Couch points to the court’s repeated use of absolute language,

suggesting that it reflected a binary choice between self-representation and

representation by counsel, leaving no room for hybrid representation:

      1.    “You either represent yourself or you’re represented by
            counsel. We don’t do kind of hybrid arrangements like that
            . . . .” R., vol. I at 116.

      2.    “So, Mr. Couch, I’m back to you because this is an either/or
            circumstance.” Id. at 119.

      3.    “[Y]ou either represent yourself in this proceeding or you’re
            represented by counsel. Those really are the choices. And it’s
            one of them or the other of them. It’s not a mixture.” Id. at
            119–20.

      4.    “Mr. Couch, with all respect for you, I-- we cannot proceed, I
            cannot allow this to go forward this morning, with a mixture of
            the two.” Id. at 123.

      5.    “I-- I have offered you the choice. And so the choice is: Do you
            want to represent yourself or do you want to represent-- be
            represented by counsel? The key word in that sentence is ‘or.’”
            Id.




                                       6
      In isolation, these statements could suggest a belief that hybrid

representation was foreclosed by law. But the court had already said that it

wouldn’t allow hybrid representation, so Mr. Couch’s choice was an

either/or situation. When the court said that the defendant “cannot”

proceed with hybrid representation, this statement could have meant either

that the court wouldn’t allow hybrid representation or that it couldn’t.

Compare Cannot, O XFORD E NGLISH D ICTIONARY (3rd ed. 2017) (“An

inability to do a thing; an impossibility; (also) a statement that something

cannot be done.”), with Can, O XFORD E NGLISH D ICTIONARY (3rd. ed. 2017)

(“Expressing permission or sanction: be allowed to, be given permission

to . . . . Frequently in requests.”). So these statements are ambiguous as to

whether the district court was exercising discretion or mistakenly thought

that hybrid representation couldn’t be permitted.

      Mr. Couch contrasts this case to United States v. Franke, 1995 WL

298137 (10th Cir. May 16, 1995) (unpublished), where we considered a

district court’s single statement and found no abuse of discretion. In

Franke, the district court stated: “There is no such thing [as hybrid

representation].” Id. at *5, 11. Yet we held that the record elsewhere

showed that the court had understood the law, and we declined to “read[]

too much into the single remark.” Id. at *5. True, the district court here

made more than one absolute statement. But the court’s multiple

statements made the same point, and the court had to repeat itself because

                                      7
Mr. Couch repeatedly refused to elect between self-representation and

representation by an attorney. R., vol. I at 119–23.

      Mr. Couch also argues that the prosecutor had misstated the law in

his argument and that the misstatement led the court astray:

      Judge, it should come as no surprise that Mr. Couch tries this
      every time that he comes before the court. He did this in front
      of Judge Robinson. It was, of course, denied.

      . . .

      His hybrid representation was denied. He was ultimately
      allowed to represent himself. At some point then, he took on
      counsel after he decided he didn’t want to represent himself. So
      it’s not uncommon for Mr. Couch to continue this process. He
      gets into a situation where only his motions can be the ones
      that are filed. So it’s-- it comes down to either he gets to
      represent himself or he’s going to have to file them through
      Mr. Johnson. He cannot come in here and drop these motions
      on the government and expect us to be able to respond today.
      That-- that just cannot happen.

      So he-- at this point, I guess the only thing this court has to
      decide today is: Is he going to represent himself or not?

      . . .

      We’re here to determine whether or not his motion about his
      competency should be-- should be questioned. But it sounds
      now that we’re back to square one like we always are with Mr.
      Couch. Who’s going to represent him? And he can’t have
      hybrid representation. It’s either Mr. Johnson or himself. And
      that’s-- it can't be any more clear than that.

R., vol. I at 117–19 (emphasis added). The same ambiguities apply here,

but prosecutors are not decisionmakers and the court had asked the

prosecutor for his legal position. R., vol. I at 117. It’s possible that the


                                       8
prosecutor’s statement (that Mr. Couch “can’t have hybrid representation”)

constituted a misleading statement of the law. R., vol. I at 119 (emphasis

added). But even if the statement had been misleading, it followed the

court’s announcement that it wouldn’t allow hybrid representation.

Compare R., vol. I at 116, with R., vol. I at 119. So the prosecutor’s

possible misstatement of the law does not bear on what the district court

had meant in its earlier statements.

5.    Conclusion

      The district court accurately stated the pertinent law, and the record

is ambiguous as to whether the court recognized its discretion to permit

hybrid presentation. Given this ambiguity, we infer that the district court

recognized its discretion. We therefore affirm.

                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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