United States of America v. Michael Alden, No. 07-1709.

Defendant-Appellant Michael Alden was convicted of conspiring to manufacture, to possess with the intent to distribute and to distribute in excess of 500 grams of methamphetamine. Alden appeals various rulings made by the district court, as well as his sentence. For the following reasons, we affirm.

Alden was represented by the Federal Public Defenders Office for his arraignment, that same day, the district court individually appointed Alden an attorney (Attorney #1). On October 4, 2004, Alden filed a pro se motion for appointment of new counsel.

Attorney #1 explained that he had been trying to work with Alden to get the information needed to file certain motions, but Alden had refused to communicate with him. Alden persisted in his demand for new counsel, and the district court advised Alden: I'm going to let [Attorney #1] withdraw if he wants to and I'll get another attorney. I'll tell you this. I don't know who it will be. I'll appoint another attorney, and if that doesn't work out, you're on your own."

Alden was appointed his second counsel (Attorney #2). A few months after appointment, however, Attorney #2 filed a motion to be appointed standby counsel and tallow Alden to proceed pro se, since Alden insisted on continuing to file pro se motions despite Attorney #2's representation. Shortly thereafter, Alden filed another pro se motion of ineffective assistance of counsel in which he complained that Attorney #2 was not filing motions that he felt should be filed.

On September 8, 2005, the district court conducted a hearing on Attorney #2's motion and Alden's pro se motions. Attorney #2 explained that he filed motions which he believed were consistent with his ethical obligations and that he had explained to Alden the dangers associated with filing pro se motions and representing himself. The district court told Alden: "You want to represent yourself or do you want [Attorney #2] to do it?  If you represent yourself I'll have him to serve as standby counselÉYou have adequate counsel and I'm going on the record with that…I can't give you anybody else that's more competent than he is to represent you."

Alden refused to answer the district court's question and said, "I don't want him to represent me, and I don't want to represent myself. The district court advised Alden that he could hire private counsel at his own expense, but Alden maintained that he could not afford private counsel. The district court then ruled: "You made a decision that based on what you say you don't want [Attorney #2] to represent you. You want to represent yourself.

For the next thirteen months, Alden represented himself (with Attorney #2 as standby counsel), filing numerous motions with the district court. In August 2006, Attorney #2 filed a motion to withdraw as standby counsel. The district court granted Attorney #2's motion to withdraw and appointed Attorney #3 to serve as standby counsel to Alden.

The district court held a hearing and appointed Attorney #3 to be Alden's full counsel. However, Alden maintained that he was not adequately represented because Attorney #3 was not adequately representing Alden. When the district court explicitly asked Alden if he wanted Attorney #3 to represent him, Alden responded affirmatively. Trial was scheduled to commence on November 14, 2006.

On November 7, 2006 Attorney #3 requested a continuance, but Alden refused to agree to a continuance and said he would waive the automatic thirty-day continuance to which he was entitled under the Speedy Trial Act. Alden said that he would rather represent himself on November 14, 2006 than have any delay to allow Attorney #3 to properly prepare for trial. Despite the district court's admonitions, Alden told the court that he wanted to represent himself, and the court appointed Attorney #3 standby counsel.

After a three-day trial, a jury found Alden guilty of the drug trafficking conspiracy as charged.

SELF-REPRESENTATION

Alden argues that his Sixth Amendment right to counsel was violated when the district court twice found that Alden had waived his right to counsel and elected to proceed pro se.

Although Alden has a right to the assistance of counsel under the Sixth Amendment, he does not have the right to counsel of his choice. United States v. Oreye, 263 F.3d669, 671(7th Cir. 2001). A district court is not required to appoint a new lawyer each time the defendant requests one. See id. (holding that the district court judge was fully within his rights to refuse to appoint a defendant a third attorney when he has no legitimate basis for being dissatisfied with his second appointed counsel). 

[A] defendant can waive his right to counsel through conduct as well as words. Id. at 670 (citing United States v. Irorere, 228 F.3d 816, 827-28 (7thCir. 2000)). A defendant waiving his right to counsel must do so knowingly and intelligently. United States v. Todd, 424 F.3d 525 530 (7th Cir. 2005).  [S]o long as the district court has given a defendant sufficient opportunity to retain the assistance of appointed counsel, defendant's actions which have the effect of depriving himself of appointed counsel will establish a knowing and intentional choice. Irorere,228  F.3d at 828. What is said to the defendant in warning him of the dangers of waiving counsel is unimportant, so long as it is established that the defendant made a knowing and informed waiver of counsel. Todd, 424 F.3d at 531.

Four factors are considered in determining whether a waiver was knowing and intelligent: (1) whether and to what extent the district court conducted a formal hearing into the defendant's decision to represent himself;(2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation; (3) the defendant's background and experience; and (4) the context of the defendant's decision to waive his right to counsel. Todd 424 F.3d at 530. Because competent individuals have a constitutional right to self-representation, a district court can not force a defendant to proceed with unwanted counsel. Faretta v. California, 422 U.S.806, 820-21 (1975).

On September 8, 2005, after Alden expressed his dissatisfaction and inability to work with Attorney #2, the district court held a hearing and gave Alden an ultimatum: accept Attorney #2's services, hire private counsel,or proceed pro se. Alden claims that this ultimatum effectively coerced Alden into representing himself. We disagree.

This is the same ultimatum the district court gave the defendant in Oreye. See Oreye, 263F.3d at 670; see also Irorere, 228 F.3d at 827-28 (explaining that after refusing to work with four appointed attorneys, defendant's conduct constituted a decision to represent himself).

The district court also adequately warned Alden of the risks involved in proceeding pro se and advised him against doing so. The record also shows that both Attorney #1 and Attorney #2 advised Alden of the dangers associated with proceeding pro se, such that Alden was well-aware of the dangers and disadvantages involved in self-representation. Alden's conduct required the district court to make the determination that he had effectively waived his right to counsel and wished to proceed pro se, and the district court in no way erred in doing so.

Alden also claims his waiver of his rights to counsel on November 7, 2006 was not knowing and intelligent, thus the district court erred by accepting it. Again, we disagree

At the hearing, Alden made it very clear that he wanted to proceed pro se rather than allow a thirty-day continuance to delay his trial so that his attorney could adequately prepare.  Nothing suggests that Alden's decision was anything but knowing and intelligent (insofar as any decision to represent oneself in a criminal case can deemed intelligent). In light of Alden's clear desire to represent himself and his constitutional right to do so, the district court's decision to accept Alden's waiver of counsel was proper

We AFFIRM Alden's conviction and sentence.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com.

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