                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 12 2010

                                                                       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. 09-50217

              Plaintiff-Appellee,                     D.C. No. 08-CR-1196-TJW

      v.

 JAMES FRANCES MURPHY,
                                                      MEMORANDUM *
              Defendant-Appellant.




                    Appeal from the United States District Court
                       for the Southern District of California
                    Thomas J. Whelan, District Judge, presiding

                      Argued and Submitted, August 2, 2010
                              Pasadena, California

Before:      KOZINSKI, Chief Judge, REINHARDT, Circuit Judge, and
             WHYTE,** District Judge.




  *
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
  **
      The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
      A district judge “may designate a magistrate judge to hear and determine any

pretrial matter pending before the court,” except for matters that are dispositive of

a claim or defense of a party. 28 U.S.C. § 636(b)(1)(A). A motion to determine

competence to represent oneself is not dispositive of a claim or defense of a party,

and the magistrate judge therefore had the authority to decide the issue of

Murphy’s self-representation. See United States v. Schultz, 565 F.3d 1353, 1357

(11th Cir. 2009) (“[M]agistrate judges have the authority to decide motions for

self-representation.”); United States v. Modena, 302 F.3d 626, 630-31 (6th Cir.

2002) (upholding a magistrate judge’s statutory authority to determine whether a

defendant has effectively waived counsel).

      The magistrate judge determined that the defendant was competent to stand

trial and to represent himself. Unlike in United States v. Ferguson, 560 F.3d 1060,

1068-70 (9th Cir. 2009), the magistrate judge in this case had the benefit of the

decision in Indiana v. Edwards, 554 U.S. 164 (2008), at the time she held a

competency hearing. There is no evidence that the magistrate judge incorrectly

believed that Murphy had an absolute right to self-representation. To the contrary,

the fact that the magistrate judge ordered an examination of defendant to determine

both his competence to stand trial and his competence to conduct his own defense




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indicates that she understood, considered, and correctly applied Edwards. See

United States v. Thompson, 587 F.3d 1165, 1172-73 (9th Cir. 2009).

      The record reflects a clear and unequivocal request by Murphy to proceed

without counsel and shows that Murphy did not request the assistance of advisory

or standby counsel. See United States v. Johnson, No. 08-10147, slip op. 9565,

9582 (9th Cir. July 6, 2010).

      The magistrate judge did not err in finding that Murphy understood the

maximum penalty he faced on each count. There is no requirement that the

defendant be advised when seeking self-representation that the maximum term on

each count could run consecutively or concurrently. Cf. United States v.

Kikuyama, 109 F.3d 536, 537-38 (9th Cir. 1997) (no requirement to advise during

guilty plea colloquy that court has discretion to run sentences consecutively or

concurrently).

      Finally, viewing the evidence in the light most favorable to the prosecution,

sufficient evidence supports defendant’s conviction on count nine. A rational trier-

of-fact could have found that Murphy took a substantial step towards violating 18

U.S.C. § 1036(a)(4) by claiming diplomatic status at the checkpoint. See Jackson

v. Virginia, 443 U.S. 307, 313 (1979).

      AFFIRMED.



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