                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2009

USA v. Chamberlain
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1064




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"USA v. Chamberlain" (2009). 2009 Decisions. Paper 1372.
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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 07-1064


                            UNITED STATES OF AMERICA

                                             v.

                                SCOTT CHAMBERLAIN,
                                             Appellant


       APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS,
                  DIVISION OF ST. THOMAS/ST. JOHN
                     (D.C. Crim. No. 04-cr-00189-001)
                  District Judge: Honorable James T. Giles


                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 20, 2009


              Before: BARRY, HARDIMAN, and COWEN, Circuit Judges

                              (Opinion Filed: May 13, 2009)


                                         OPINION




BARRY, Circuit Judge

       Appellant Scott Chamberlain was convicted of attempted robbery of the United

States, in violation of 18 U.S.C. § 2114, and grand larceny, in violation of 14 V.I.C. §
1083(1). On appeal, Chamberlain alleges a variety of errors. Because we find that the

District Court did not ensure that Chamberlain’s decision to waive his right to counsel

and proceed pro se was knowing, intelligent, and voluntary, we will vacate the judgment

of conviction and remand for further proceedings.

                                    Factual Background

         On November 30, 2004, Chamberlain attempted to rob a post office and a jewelry

store in St. Thomas, Virgin Islands. As to the former, Chamberlain approached a postal

employee, handed her a plastic bag, demanded that she fill it with money, and brandished

a gun.1 He repeated his demand, but the employee, apparently in shock and afraid, did

not do as instructed. Chamberlain left the post office. The employee, and another

employee who witnessed the events, contacted the police and described the putative

robber as a white man wearing a white t-shirt and a blue bathing suit.

         Chamberlain next proceeded to a jewelry store where he pretended to examine an

expensive watch, and then fled the store with the watch. He was pursued and

apprehended by store employees, and soon detained by the police. An officer, noting the

similarity between Chamberlain’s appearance and the description of the man who

attempted to rob the post office, brought Chamberlain to the post office for the purpose of

identification. With Chamberlain handcuffed in the back of a police car, the two postal




   1
       The gun, it would later be discovered, was fake.

                                             -2-
    employees positively identified him as the putative robber.2

           Chamberlain was arrested and charged with attempted robbery and grand larceny.

    On May 19, 2006, approximately two weeks before his trial was set to begin, he filed a

    complaint about his then-current counsel with the Virgin Islands Bar Association and,

    shortly thereafter, filed a motion for new counsel with the District Court. On June 6,

    2006, the morning of trial, Chamberlain pressed his motion before the Court. The Court

    required him to choose between proceeding pro se or going forward with his then-current

    counsel. Chamberlain elected to represent himself, with counsel serving as stand-by

    counsel.3 The jury convicted him on both counts, and he was sentenced to concurrent

    terms of 66 months imprisonment. On appeal, he alleges a variety of errors.4 We have

    jurisdiction pursuant to 28 U.S.C. § 1291.




       2
         Chamberlain testified at trial to a different version of events: he claimed that he had
    no involvement whatsoever with the attempted robbery of the post office, and was the
    victim of erroneous eyewitness identification. With respect to the jewelry store incident,
    he claimed that he was simply taking the watch out of the store to show it to his employer,
    who had promised to purchase him a watch as a reward for a job well done.
       3
         At trial, stand-by counsel questioned Chamberlain during his testimony, gave the
    closing statement, and participated in the Rule 11 conference. Chamberlain conducted
    the rest of the trial himself.
       4
1        Chamberlain argues that his conviction should be vacated for the following reasons:
2   (1) insufficiency of the evidence; (2) error in the jury instructions; (3) the District Court’s
3   refusal to appoint an expert witness on the subject of the unreliability of eyewitness
4   identification; and (4) the District Court’s failure to ensure that he knowingly,
5   intelligently, and voluntarily waived his right to counsel.

                                                 -3-
                                        Discussion

       Chamberlain claims that the District Court failed to ensure that his waiver of the

right to counsel was knowing, intelligent, and voluntary. We have repeatedly discussed

the framework and requirements for the waiver of the right to counsel.

       The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the
       accused shall enjoy the right . . . to have Assistance of Counsel for his
       defense.’ The Supreme Court has construed this to mean that ‘the guiding
       hand of counsel’ must be made available in criminal trials to those that can
       not afford to hire an attorney on their own. It is now clear, however, that
       the Sixth Amendment also guarantees the right of self-representation.

United States v. Stubbs, 281 F.3d 109, 116 (3d Cir. 2002) (internal citations omitted); see

also Faretta v. California, 422 U.S. 806 (1975). “Our review of whether a defendant’s

waiver of counsel was knowing and intelligent is plenary as it involves only legal issues.”

Stubbs, 281 F.3d at 113 n.2.

       For a defendant to waive his right to counsel, he “must clearly and unequivocally

ask to proceed pro se.” Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir. 2000) (internal

citations omitted). If a defendant asks to proceed pro se, a district court must conduct a

searching inquiry into his understanding of the intricacies and disadvantages of pro se

representation.5 See, e.g., United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982) (“The


   5
     A defendant must establish “good cause” before a court would be required to appoint
new counsel. See Stubbs, 281 F.3d at 117 (noting that when a defendant “expresses a
desire to either substitute counsel or proceed pro se on the eve of trial . . . . [t]he court
must first determine if the accused can ‘show good cause [for dismissing counsel], such
as a conflict of interest, a complete breakdown in communication, or an irreconcilable
conflict with his attorney. . . . [I]f good cause does exist, counsel should be dismissed

                                            -4-
court . . . has the responsibility of ensuring that any choice of self-representation is made

knowingly and intelligently, with an awareness of the dangers and disadvantages inherent

in defending oneself.”). This inquiry, commonly known as a Faretta inquiry, is intended

to ensure that a defendant’s waiver of the right to counsel is knowing, intelligent, and

voluntary. See, e.g., Gov’t of the V.I. v. Charles, 72 F.3d 401, 404 (3d Cir. 1995).

       Because of the centrality of the right to counsel to our justice system, we “indulge

every reasonable presumption against a waiver of counsel.” Buhl, 233 F.3d at 790.

Additionally, a Faretta-type error is structural, and requires automatic reversal. See, e.g.,

United States v. Jones, 452 F.3d 223, 230 (3d Cir. 2006) (“When a waiver is deemed

ineffective (i.e., not knowing, intelligent, and voluntary), there is no harmless error

review, and the conviction must be vacated and the case remanded for a new trial.”).

       A waiver of the right to counsel “ought not [be] accept[ed] . . . absent a penetrating

and comprehensive examination of all the circumstances.” Stubbs, 281 F.3d at 118-19

(internal citations and quotations omitted). “Perfunctory questioning is not sufficient.”

Welty, 674 F.2d at 187. Indeed, “the defendant [must] be informed of all risks and

consequences associated with his decision for self-representation.” United States v.



‘even though it may necessitate continuing the trial’”) (quoting United States v. Welty,
674 F.2d 185 (3d Cir. 1982)).
       Because it is sufficiently clear to us that the Faretta inquiry here was deficient, see
infra, we will not engage in a post hoc analysis of whether the purported conflict between
Chamberlain and his then-current counsel was of such magnitude as to require new
counsel, or whether the District Court properly forced him to choose between current
counsel and proceeding pro se.

                                             -5-
Peppers, 302 F.3d 120, 135 (3d Cir. 2002) (emphasis in original). In Peppers, we went

so far as to publish a list of 14 questions, some with sub-parts, that provides a “useful

framework for the court to assure itself that a defendant’s decision to proceed pro se is

knowing and voluntary.” Id. at 136.

       We went even further in United States v. Jones, unambiguously holding that

“[a]lthough no scripted recital is required for [the Faretta] inquiry, we do require that all

of the subjects covered in the model questions set forth in Peppers be fully explored in the

inquiry, to the extent those subjects are relevant.” 452 F.3d at 234 (emphasis added). In

Jones, we analyzed the court’s colloquy in detail, noting that it failed to:

       (1) “inquire whether [defendant] understood the possible defenses
       available;”
       (2) “explain that [the court] could not give [defendant] any assistance;”
       (3) “discuss any of the potential problems that an incarcerated defendant
       might encounter in obtaining evidence and locating and questioning
       witnesses;”
       (4) “ask any follow-up questions to determine the extent of [defendant’s]
       understanding [about the Rules of Evidence and Criminal Procedure], and
       whether [defendant] knew that these rules prohibited him from simply
       telling the jury his story;”
       (5) “inform[] [defendant] that representing himself was inadvisable;”
       (6) “inform[] [defendant] of the magnitude of the sentence he could receive
       as a career offender under the Sentencing Guidelines.”

Id. at 232. In light of these deficiencies, we could not find that the waiver of counsel was

knowing, intelligent, and voluntary and, thus, vacated the judgment of conviction.

       The colloquy that took place here is even more deficient than the one found

lacking in Jones. After a discussion of Chamberlain’s complaints about counsel, the


                                             -6-
following exchange occurred:

       Defendant: Well, you offered [for me to represent myself], and I’ve
       accepted.
       Court: Your attorney is trained. You’re there to assist in your
       representation, if you wish him to do this.
       Defendant: Yes.
       Court: I will not assist you if you choose to represent yourself.
       Defendant: Yes, I understand that, Your Honor.
       Court: Do you choose to represent yourself?
       Defendant: Yes, I do. And I choose to also have [counsel] assist me.

(App. 15-16.) Chamberlain then recited another litany of complaints against counsel. At

this point, the District Court terminated the colloquy, and proceeded to trial:

       Defendant: . . . So I had no choice but to file a grievance complaint against
       him and also to ask this Court to be an honorable Court and, under the
       circumstances, please give me a new attorney.
       And now, you know, here I am.
       Court: Here you are.
       Defendant: And I thank you for listening to me, and in making the offer you
       have here. I wish you would reconsider - -
       Court: 1:05.
       Defendant: - - to give me a lawyer - -
       Court: 1:05.
       Defendant: Thank you, Your Honor.
       [Defense Counsel]: Your Honor, before you adjourn, if I may, just for
       clarity on the record, all of this is against advice of counsel.
       Court: He is making his own decision. I’m sure he’s thought about it. 1:05.

(Id. at 16-17.)

       Thus, the District Court informed Chamberlain only that counsel was trained and

that the Court would not assist him at trial. None of the other requisite subjects was even




                                            -7-
mentioned, let alone addressed in the manner envisioned by Peppers and Jones.6

Accordingly, we will vacate the judgment of conviction.

                                       Conclusion

       The judgment of conviction will be vacated and this matter will be remanded for

further proceedings. Given this disposition, we need not reach the numerous other issues

raised on appeal. See supra note 4 and accompanying text.7




   6
     The District Court failed to: (1) ask Chamberlain if he knew and understood the
defenses available to him; (2) discuss the problems Chamberlain could have in obtaining
evidence while incarcerated; (3) discuss, at all, Chamberlain’s awareness of and
knowledge about the Federal Rules of Evidence and Criminal Procedure; (4) recommend
that Chamberlain not proceed pro se; (5) inform Chamberlain of the charges against him;
(6) inform Chamberlain of the potential sentence he faced; (7) inquire into Chamberlain’s
background in law and knowledge of legal issues; (8) inform Chamberlain of the
existence and effect of the Sentencing Guidelines; and (9) inform Chamberlain that he
could not, except when testifying, simply tell the jury information and have it considered
as evidence. Cf. Peppers, 302 F.3d at 136.
   7
     We note, however, that were a new trial to be ordered, the District Court, on motion,
should carefully consider whether Chamberlain is entitled to have the assistance of an
expert witness as to reliability of eyewitness identifications generally and the problems
associated with cross-racial identifications and “show-up” procedures specifically. See,
e.g., United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006); United States v. Stevens,
935 F.2d 1380 (3d Cir. 1991); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985).

                                           -8-
