[00:00:15] Speaker 04:
Good morning, Your Honors.

[00:00:17] Speaker 04:
May it please the Court.

[00:00:19] Speaker 04:
My name is Andrew Stewart, and I represent Mr. Wright on appeal.

[00:00:24] Speaker 04:
And in this case, I think that our argument really boils down to whether or not the

[00:00:32] Speaker 04:
inquiry conducted by the lower court and its basis for not appointing new counsel to Mr. Wright were sufficient.

[00:00:42] Speaker 04:
And while the government points out in its brief that there were a number of issues I guess that led to Mr. Wright's dissatisfaction with Mr. Cooper,

[00:00:51] Speaker 04:
specifically the competency evaluation that caused some delay, protective order that prohibited from looking at certain documents, and these plea offers that he was receiving as opposed to, I guess, perhaps trial preparation or strategy that he'd hoped

[00:01:06] Speaker 04:
to engage in with counsel.

[00:01:08] Speaker 04:
More importantly, I think it's this acknowledgement by counsel that the relationship between he and his client had broken down to a point where it was going to affect his ability to represent his client.

[00:01:22] Speaker 04:
And this is where we come up with this term.

[00:01:25] Speaker 04:
And what was the basis for that breakdown, according to?

[00:01:29] Speaker 04:
Well, I think that there are two perspectives, obviously, but one of Mr. Wright and one of Mr. Cooper.

[00:01:38] Speaker 04:
I think that on the one hand, Mr. Cooper wanted certain releases signed so that he could pursue what I gleaned from the record as being maybe a competency defense.

[00:01:49] Speaker 03:
Was that unreasonable of him?

[00:01:52] Speaker 04:
I don't think it was unreasonable.

[00:01:54] Speaker 04:
What I think was perhaps problematic was the tone of their conversations, as was revealed by some of the statements Mr. Wright made during various colloquies with the court.

[00:02:08] Speaker 03:
And is there law out there that says we look to the tone of the conversations between appointed counsel?

[00:02:15] Speaker 04:
I don't think that they're, not specifically to the tone, but I think that there is case law.

[00:02:21] Speaker 03:
The cases talk about a total breakdown of communication, complete inability.

[00:02:27] Speaker 04:
And I think that the insight that's most important is that of Mr. Cooper when he says that whatever the cause of the breakdown in communication is, I don't think it's

[00:02:38] Speaker 04:
really that important that you have the attorney telling the court based on that breakdown of communication.

[00:02:43] Speaker 03:
But if you have a breakdown that's based on the recalcitrance of the client, it's not going to be solved by a third court-appointed lawyer.

[00:02:53] Speaker 03:
Wasn't that the judgment of the district court here?

[00:02:55] Speaker 04:
Certainly.

[00:02:56] Speaker 04:
If it is only the fact that a defendant is difficult, if that is the only reason, I would say that's a

[00:03:04] Speaker 03:
And that's, in fact, the judgment of the district court here, right?

[00:03:10] Speaker 03:
The problem lay with Mr. Wright.

[00:03:12] Speaker 03:
So what's our standard for reviewing that determination by the district court?

[00:03:16] Speaker 03:
That the problem here lay with Mr. Wright.

[00:03:21] Speaker 03:
How are we supposed to look at that?

[00:03:23] Speaker 04:
So if it's just a question of appointing new counsel, I just want to make sure that I'm expressing this.

[00:03:31] Speaker 04:
The government and I both agreed that it would have been abuse of discretion.

[00:03:36] Speaker 03:
That's a very forgiving standard for district courts, right?

[00:03:39] Speaker 04:
Absolutely, Your Honor, absolutely.

[00:03:41] Speaker 04:
And that's why I think that the important description of the relationship is that of Mr. Cooper when he tells the court that it has broken down beyond a point of just friction between an attorney and their client, but it's gotten to a point where now it's affecting his ability to represent his client.

[00:04:03] Speaker 03:
Even if there is a disagreement over what the district court then has a decision to make, right?

[00:04:11] Speaker 03:
Allow Mr. Wright to go pro se or appoint yet another counsel.

[00:04:17] Speaker 03:
And you're asking us to say it was an abuse of discretion for him to say, I'm not going to appoint a third

[00:04:26] Speaker 03:
Council, because I fear that we're just going to go in the same pattern that's been established here with a difficult client.

[00:04:34] Speaker 03:
That was his judgment, and your argument has to be based on everything that was in front of the district court judge.

[00:04:41] Speaker 03:
That when he made that decision, I'm not going to appoint another council.

[00:04:46] Speaker 03:
That was an abuse of discretion.

[00:04:48] Speaker 04:
Right.

[00:04:48] Speaker 04:
And I think that the problem in the way that the district court dealt with it was telling Mr. Wright, I'm not going to appoint new counsel to you before really getting into what the cause of his concerns were.

[00:05:03] Speaker 00:
So, so Mr. Maybe you're going there.

[00:05:07] Speaker 00:
I don't want to interrupt you.

[00:05:09] Speaker 04:
I'm happy to answer any questions.

[00:05:11] Speaker 00:
When I read the transcript, what struck me was

[00:05:16] Speaker 00:
how mistrustful Mr. Wright was, that he kept saying that he thought that Mr. Cooper was working with the prosecution, that he didn't understand why he couldn't have access to the grand jury materials, that he didn't understand why after asking for four to six weeks to prepare the case, Mr. Cooper came back to him in a week,

[00:05:42] Speaker 00:
with the plea offer, and he seemed to me to be laboring under the misapprehension that his counsel was not showing a duty of loyalty and zealous representation to him.

[00:05:58] Speaker 00:
Is that something that the law requires the district judge to clear up or not?

[00:06:09] Speaker 04:
Certainly, if the court has the ability to clear up a misapprehension, then it does have a responsibility to attempt to do so.

[00:06:20] Speaker 04:
And we see that in some of the cases that both the government and I cite where, and now I'm blanking, of course, but in those cases,

[00:06:33] Speaker 04:
I think one of them was there was a public defender who was, there was a perception that this public defender somehow wasn't going to be able to effectively represent this client because of a news article and then a subsequent attorney takes over.

[00:06:53] Speaker 04:
But the court engages in a colloquy with the defendant and is explaining, well, this is why you don't have to worry.

[00:07:00] Speaker 04:
So in certain, in circumstances like that, yes, I think the court does have an obligation to try and clear up those misgivings.

[00:07:09] Speaker 04:
In this case, I think that there are a number of issues that sort of contribute to the communication breakdown between Mr. Cooper and Mr. Wright.

[00:07:18] Speaker 01:
And so... Well, isn't, aren't those issues

[00:07:23] Speaker 01:
that trying to get a plea bargain was working for the other side, and his apparent failure to understand that the attorney's job in this case, the attorney would have been practicing malpractice if he had not been trying to get a plea bargain on this.

[00:07:45] Speaker 01:
I've tried about a hundred bank robberies, and that's not much of a hyperbole.

[00:07:50] Speaker 01:
And I never saw one, I think, where the evidence had been any better than this one, unless they caught the guy in the bank.

[00:07:57] Speaker 01:
But he seems to think that the attorney is not working for him if he's not able to do something in the way of an affirmative defense.

[00:08:06] Speaker 01:
And that if he's trying to plead bargain, he's working for the other side.

[00:08:08] Speaker 01:
Is there any hope of getting any horror within the defendant that starts with that composition?

[00:08:14] Speaker 01:
Well, Your Honor, as it relates... To use abuse of discretion, to not disabuse a defendant of something that's that fundamental to your thinking.

[00:08:22] Speaker 04:
Generally speaking, I...

[00:08:24] Speaker 04:
I think that it is possible for counsel to be appointed to a defendant, regardless of how difficult they are, and that there exists counsel that can take into consideration some of the bugaboos or... The law doesn't require that the best counsel be appointed.

[00:08:43] Speaker 01:
Well, I understand that.

[00:09:01] Speaker 04:
I think that that goes back to the way that the court postured the choice for Mr. Wright.

[00:09:12] Speaker 04:
His choice was, I'm not going to give you other counsels, so you can use this counsel that you are not happy with, and has also told the court

[00:09:21] Speaker 04:
that the degree of communication is broken down to the point where the attorney doesn't think that they're capable of mounting a defense.

[00:09:31] Speaker 04:
And so Mr. Wright was left with a choice between this counsel that doesn't think he can communicate with his client and mount a defense, or he can proceed pro se.

[00:09:47] Speaker 03:
Unless my colleagues have further questions, we'll stop you here.

[00:09:52] Speaker 03:
Thank you very much.

[00:09:59] Speaker 02:
Good morning.

[00:10:00] Speaker 02:
Good morning and may it please the Court, Onward Graves will be at the United States.

[00:10:05] Speaker 02:
This Court should affirm the decision of the District Court for two main reasons.

[00:10:08] Speaker 02:
First, the trial court did not abuse its discretion in deciding that appellant was not entitled to substitute counsel.

[00:10:14] Speaker 02:
And second, the ferretta colloquy that was used by the District Court was sufficient to show that appellant's decision was voluntary.

[00:10:21] Speaker 00:
Mr. Graves, can you point me to what you think are the best passages in the record that address Mr. Wright's evident misapprehension about his counsel's loyalty?

[00:10:38] Speaker 00:
When I read it, I thought the district court did a very good job in explaining to Mr. Wright the hazards of proceeding pro se.

[00:10:46] Speaker 00:
He really went into the details of what

[00:10:50] Speaker 00:
what that entails and why that's a very bad idea in his view.

[00:10:56] Speaker 00:
It was harder for me to see where he addressed Mr. Wright's repeated expressions of mistrust and saying, this guy

[00:11:05] Speaker 00:
obviously is working with the prosecution, and I didn't see, but I think there may be places you could help me find where the district judge explained that.

[00:11:15] Speaker 00:
It's hard for people who are not lawyers to appreciate that a government paid defense attorney is

[00:11:24] Speaker 02:
I completely understand.

[00:11:26] Speaker 02:
So in the record, I'd point to A-439 to 41, 457, 459, and 479 as places in the record where Judge Contreras addressed the appellant's concerns.

[00:11:37] Speaker 02:
And specifically, his concerns were one, that he was presented plea offers.

[00:11:42] Speaker 02:
Another was that grain jury material, protective order was signed for grain jury material.

[00:11:46] Speaker 02:
With regards to that point, the trial court informed the appellant that that's fairly normal and routine, that defense attorneys enter into those types of agreements in order to get grand jury material before trial.

[00:11:57] Speaker 02:
Appellant complained of releases that Mr. Cooper wanted signed to talk to his doctors, and the trial court explained, well, that is important if you're looking to present a diminished capacity defense.

[00:12:07] Speaker 02:
So in all of those instances, the trial court did take time to explain to appellant why Mr. Cooper may have been doing what he was doing.

[00:12:14] Speaker 02:
And so to answer your question, those would be where I would point.

[00:12:19] Speaker 03:
So I'm concerned about, I mean, Mr. Wright told the court that he was not on his antipsychotic

[00:12:26] Speaker 03:
That's a serious thing.

[00:12:29] Speaker 03:
I don't know a great deal about psychiatry, but presumably someone could suffer from delusions if they're not on their antipsychotic medication.

[00:12:38] Speaker 03:
Did the district court spend enough time paying attention to that?

[00:12:42] Speaker 03:
It was alerted to that fact.

[00:12:43] Speaker 02:
Well, there were two instances.

[00:12:45] Speaker 02:
First, when Mr. Cooper first began his representation, he sought a competency hearing.

[00:12:50] Speaker 02:
And so the trial court, I'm sorry, district court, sent an appellant to the Superior Court to their mental health section to be assessed.

[00:12:57] Speaker 02:
After that, the mental health section of the Superior Court said that he was competent.

[00:13:01] Speaker 02:
At that point, both the appellant and Mr. Cooper objected.

[00:13:05] Speaker 02:
And so the trial court sent him over to the Bureau of Prisons for further competency evaluation, where he again came back as competent.

[00:13:12] Speaker 02:
Throughout the course of the trial and throughout the colloquy, the forensic colloquy, he was asked about medications.

[00:13:17] Speaker 02:
And at a point during trial, or I'm sorry, right before trial, appellant stated to the trial court that he is on his medication, that he feels fine, and he understands what's going on.

[00:13:26] Speaker 02:
So the trial court did, in fact, address that situation.

[00:13:30] Speaker 03:
referring specifically to the anti-psychotic medication, what is it called?

[00:13:35] Speaker 03:
Risperdal.

[00:13:36] Speaker 03:
And I thought the record showed that he told the district court judge that he was not on his Risperdal at that time.

[00:13:45] Speaker 03:
He felt fine, but he was not on it.

[00:13:48] Speaker 03:
And my question is, is that enough for the district court judge to take his word for how he's doing when we're dealing with an anti-psychotic

[00:13:59] Speaker 02:
I won't say that there was, throughout the course of that time, and the trial court did not inquire further of that, I will attest.

[00:14:05] Speaker 02:
However, Mr. Cooper was stand-by counsel, did not raise anything regarding to appellant's mental health or competency.

[00:14:11] Speaker 02:
Throughout the course of the trial, we see him making objections, objections that weren't in fact sustained by the trial court on many instances.

[00:14:17] Speaker 02:
I mean, nothing about his performance at trial led anyone to believe that he was suffering from any mental health defects.

[00:14:22] Speaker 02:
And the trial court made the explicit finding when government's counsel asked him to do further colloquy of appellant related to United States versus McKinney.

[00:14:32] Speaker 02:
The trial court went through that colloquy and found that he does not suffer from the same mental health conditions that you see in McKinney.

[00:14:38] Speaker 02:
In this trial court, this court stated in McKinney that the district court must first make that finding before mental health becomes a significant factor in assessing his competence to stay in trial alone.

[00:14:47] Speaker 02:
So the government does believe that the trial court did do enough in those instances.

[00:14:51] Speaker 02:
So addressing another point that was made by appellant, Leggett is instructive with regards to whether or not the attorney's representation of whether or not there's difficulty in representing his client, how much weight should be afforded by the court.

[00:15:05] Speaker 02:
And Leggett, the attorney in that case, stated that it acknowledged that it was difficult to focus on what's going on when he was being second-guessed on everything.

[00:15:12] Speaker 02:
which is essentially what Mr. Cooper was relaying to Judge Contreras.

[00:15:16] Speaker 02:
And what this court said in Leggett is that just as friction between a trial counsel and the court does not create a conflict of interest, so too the expected and usual rifts that develop between disappointed defendants and their counsel cannot be characterized as conflicts of interest.

[00:15:30] Speaker 02:
And so here, Appellant has not met his burden of showing that in fact there is good cause for substitute counsel.

[00:15:37] Speaker 02:
Moving on to the second point, which is where the Ferretta colloquy was sufficient to show that an appellant's decision was in fact voluntary.

[00:15:43] Speaker 02:
I will no further record an appellant, I don't disagree, is knowing in intelligence that those factors of Ferretta aren't being challenged by an appellant.

[00:15:52] Speaker 02:
So addressing strictly with the voluntary prong of that,

[00:15:56] Speaker 02:
At first, he was asked during a colloquium on January 10th about his age, education, drug use.

[00:16:02] Speaker 02:
He gave answers to all of those questions.

[00:16:05] Speaker 02:
He then conveyed why he wished to proceed pro se, and I addressed that in my discussion with her honor.

[00:16:10] Speaker 02:
And the court went through, dispelled those notions.

[00:16:13] Speaker 02:
And the appellant decided to again proceed to go pro se.

[00:16:18] Speaker 02:
When asked if Mr. Grubb would be ready for trial, his only complaint was that he presented plea offers to me.

[00:16:22] Speaker 02:
He could not state a reason for why he did not think he would be ready for trial.

[00:16:26] Speaker 02:
The court confirmed they had to write to counsel and then lastly he gave one last warning stating that you should not do this on your own.

[00:16:32] Speaker 02:
But yet, appellant decided that he wished to proceed pro se, which is something that he had tried to state on the record ever since he was represented by the Federal Public Defender Service, which is that he wanted to proceed pro se, something that has always been something he's voiced.

[00:16:44] Speaker 02:
And so, Judge Contreras followed the right that he has, but he's not afraid to give him the ability to proceed pro se.

[00:16:53] Speaker 00:
Do we have a different standard in this circuit of competency to stand trial and competency to represent oneself?

[00:17:03] Speaker 02:
So the Indiana case out of Supreme Court was addressed by this court in the United States versus McKinney.

[00:17:08] Speaker 02:
There is a separate standard, but again, that's a discretionary standard.

[00:17:11] Speaker 02:
And this court stated in McKinney that a district court's discretion to limit a defendant's right to self-representation is triggered only if the court first determines that the defendant suffers from severe mental illness to the point where he is not competent to conduct trial proceedings by himself.

[00:17:26] Speaker 02:
And here the trial court made an explicit finding that appellant does not reach the McKinney standard.

[00:17:32] Speaker 01:
And it was after there had been two psychiatric evaluations, both the Superior Court and the Bureau of Prison.

[00:17:36] Speaker 02:
That's exactly correct.

[00:17:37] Speaker 02:
Yes, Your Honor.

[00:17:39] Speaker 02:
So seeing if there are no further questions, the government would ask this court to affirm the decision of the district court.

[00:17:44] Speaker 02:
Thank you.

[00:17:48] Speaker 03:
Does Mr. Stewart have time on the phone?

[00:17:52] Speaker 03:
We'll give you a minute if you need it.

[00:17:57] Speaker 03:
That's fine, Your Honor.

[00:17:58] Speaker 03:
I don't have any additional.

[00:17:59] Speaker 03:
Okay, okay, great.

[00:17:59] Speaker 03:
Mr. Stewart, you were appointed by the court to represent Mr. Wright, the defendant.

[00:18:03] Speaker 03:
In this case, we thank you for your assistance.

[00:18:06] Speaker 03:
Thank you, Your Honor.