U.S. v. DUCTAN, NO. 14-4220
Decided: September 2, 2015
In this case about the Sixth Amendment right to counsel, the Fourth Circuit held that Ductan neither forfeited nor waived his right to counsel. Based on these findings, the Fourth Circuit vacated Ductan’s conviction on drug charges, and remanded the case for a new trial.
In April, 2004, a tip from a confidential informant to police that Ductan offered to sell him 100 pounds of marijuana led to a controlled buy. During the controlled buy, Ductan arrived with two other men, showed the informant marijuana, and threw a firearm to the ground when police closed in on him. Ductan was charged with state charges for trafficking in marijuana and carrying a concealed firearm, but the charges were dismissed.
In September, 2004, Ductan and his co-conspirators were indicted by a federal grand jury for conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana and aiding and abetting the same, and carrying a firearm during and in relation to a drug trafficking crime. In his first appearance before the federal magistrate, Ductan said that he had retained an attorney, Brant, but Brant moved to withdraw, saying that Ductan was uncooperative, would not sign a discovery waiver, and failed to communicate with him. At the hearing on Brant’s motion, Ductan told the magistrate that he did not consent to appointment of a new lawyer, but did not want to represent himself. The magistrate explained that Ductan could represent himself, have counsel appointed, or hire new counsel. At that point, Ductan began making “nonsense statements.” As the hearing continued, Ductan said more nonsensical things, and the judge asked whether Ductan was under the influence of drugs or alcohol. The magistrate said that he would not appoint new counsel, because Ductan could be said to have waived his right by making nonsense statements. The magistrate told the Federal Defender to appoint standby counsel, and granted Brant’s motion to withdraw.
One month later, standby counsel, Lee, moved to withdraw because Ductan did not want his representation, and would not sign a discovery agreement. At a hearing on the motion, Ductan said he felt Lee had spent too little time with him to represent him. The judge explained that Lee was serving only in a standby capacity because Ductan had waived his right to appointed counsel at the earlier hearing, and was thus representing himself. Ductan said he did not wish to have Lee represent him, and was looking for a private attorney. The magistrate judge denied Lee’s motion to withdraw, told Ductan he was proceeding pro se unless he hired an attorney or worked with Lee, and explained the dangers of pro se representation to Ductan.
At a hearing the day before jury selection, Ductan made a nonsense comment, said he was looking for a private attorney, and said he could not represent himself. At jury selection, Ductan said he was not prepared to move forward, and made several nonsense comments during the venire. The magistrate told him to stop interrupting. When Ductan continued to interrupt, the magistrate held him in contempt, and placed him in a holding cell outside the courtroom where he could observe, but not participate in, jury selection. Lee remained in the courtroom for jury selection, introduced himself to prospective jurors, and attended a bench conference, but did not strike jurors, or otherwise participate in jury selection. Once the jury was empaneled, the magistrate brought Ductan back to the courtroom, invited him to participate in the trial, and told him he would purge the contempt citation if he followed court rules. Ductan said he did not want to represent himself, did not want Lee’s representation, and would like to find private counsel. The magistrate said that Ductan seemed to be choosing to proceed pro se because the court was ready to begin. Ductan disagreed with that characterization, and said he did not want this type of representation. The district court proceeded with the trial, telling Ductan that he was proceeding pro se, but could have Lee’s assistance. Following a normal trial, the jury found Ductan guilty on all three counts. Per his request, Ductan was represented by an appointed attorney at sentencing. He was sentenced to a total of 84 months imprisonment. Ductan appealed on the basis that his Sixth Amendment right to counsel was violated when the magistrate incorrectly found that he forfeited or waived his right to counsel, and when the magistrate deprived him representation during jury selection by removing him from the courtroom without counsel representing him in the courtoom.
The Fourth Circuit held that the magistrate erred in finding that Ductan forfeited or waived his right to counsel. Under Fourth Circuit precedent, the right to counsel can only be relinquished through waiver, and the waiver must be knowing, intelligent, clear, and unequivocal. The Court found that Ductan’s behavior did not meet that standard, and even if he had clearly and unequivocally waived his right to counsel, the magistrate judge did not complete the Faretta inquiry, so no valid waived occurred. Finding this error sufficient as a violation of Ductan’s right to counsel, the Fourth Circuit vacated Ductan’s conviction and remanded for a new trial.
Judge Davis wrote a separate concurring opinion explaining how the error during jury selection was an independent ground for vacating Ductan’s conviction. He argued that representation during jury selection is critical. If a disruptive pro se defendant must be removed from the courtroom, the proper procedure is thus for the court to revoke the right to self-representation, and appoint an attorney. Here, Lee was not representing Ductan. Thus, the magistrate erred in not providing Ductan representation during jury selection, and thereby violated Ductan’s right to counsel.
Katherine H. Flynn