Thursday, December 13, 2007
Court: Waiver of Right to Counsel Was Not Conditional
By STEVEN M. ELLIS, Staff Writer
A defendantís waiver of his right to counsel is not conditional upon receiving a specific degree of assistance from standby counsel if the court accepting the waiver and assigning counsel promises no such assistance, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Upholding Steven Morelandís convictions on mail and wire fraud, money laundering, and conspiracy charges for his participation in a fraudulent pyramid scheme, the court rejected Morelandís assertion that his Sixth Amendment right to counsel had been violated because he had relied on specific assurances from U.S. District Judge Barbara Jacobs Rothstein of the Western District of Washington regarding the level of participation he could expect from standby counsel she appointed.
Writing for the court that, ď[a]t no point did the district court lead Moreland to believe that he would receive substantial assistance with his case from standby counsel,Ē Senior Judge Procter Hug Jr. rejected Morelandís argument and concluded that he had knowingly and intelligently waived his right to counsel.
Moreland was convicted for his role in an enormous pyramid scheme that swindled approximately 2,500 people, mostly seniors, out of more than $73 million from November of 1997 until May of 2000. Although some returns were paid to early investors, Moreland and his associates pocketed or squandered the rest, prosecutors said.
At his initial appearance in the district court, Moreland indicated his desire to represent himself. After a hearing, the magistrate permitted Moreland to do so, but appointed attorney Ralph Hurvitz to assist him as standby counsel.
Rothstein conducted a second hearing in June of 2001, and concluded Morelandís waiver was knowing and intelligent after engaging in a lengthy discussion with him regarding the charges and the disadvantages of self-representation and urging him not to represent himself. She permitted Moreland to continue with Hurvitz as standby counsel, but did not promise any specific degree of assistance, noting explicitly that Hurvitzís role was undefined.
Moreland began complaining about Hurvitz almost immediately after the hearing, accusing him of refusing to familiarize himself with the case, review the evidence, assist with discovery, or offer any assistance beyond filing motions. When Moreland requested that the district court replace Hurvitz, Rothstein told him that he had left her with the understanding in the last hearing that he expected ďlittle more from Hurvitz than fulfillment of basic administrative responsibilities.Ē
She also explained that Moreland was requesting more participation from Hurvitz than courts had anticipated when they created the standby counsel role, and that his wish to represent himself prohibited Hurvitz from contributing to the case beyond a basic level for fear of encroaching on Morelandís rights.
Despite his expressed disappointment with Hurvitzís performance, Moreland continued to insist on representing himself until April 23, 2002, when he filed a motion requesting the appointment of counsel.
The district court appointed Hurvitz because of his familiarity with the case. However, although Hurvitz requested a continuance, Moreland opposed the request and Rothstein set trial for two weeks later.
Moreland was convicted and sentenced to 292 months in prison. On remand to the district court after Moreland appealed his sentence, Rothstein reduced the sentence to 216 months in prison and imposed $36,031,772.84 in restitution.
Moreland argued on appeal that his Sixth Amendment right to counsel had been violated because his waiver was not voluntary, notwithstanding Hurvitzís eventual appointment as counsel. He claimed that the waiver had been conditioned on assurances from the district court regarding the level of assistance Moreland could expect to receive from standby counsel, and argued that these assurances were not satisfied because standby counsel did not provide as much assistance as he expected.
Hug disagreed. ďThe record undermines Morelandís assertion that his waiver was conditioned on specific assurances from the district court regarding the level of participation he could expect from standby counsel,Ē he said.
Hug noted that the district courtís lack of specificity in explaining the role of standby counsel meant that it had not made any assurances upon which Moreland could reasonably have conditioned his waiver. He also concluded that Moreland had ample opportunity to waive his right to self-representation and request the district court to appoint full counsel if he did not believe that standby counsel was living up to his expectations.
ď[T]he district court clearly informed Moreland well in advance of trial what he could and could not expect from standby counsel,Ē he wrote. ďIf Morelandís waiver of his right to counsel was truly conditioned on his expectation that Hurvitz would play a larger role in his defense, he could have withdrawn his waiver and asked the district court to appoint full counsel at that time.Ē
In a separate part of the opinion Hug also opined that determination of Morelandís other ineffective assistance of counsel arguments was premature, and rejected Morelandís arguments that he had been prejudiced by prosecutorial misconduct. Hug also concluded that the government had introduced sufficient evidence to support Morelandís convictions, and that Morelandís sentence† was proper.
A spokesperson for the U.S. attorney said the office was pleased with the decision, but had no further comment.
Morelandís attorney, Jordan Gross of Seattle, said that her client was disappointed, but had raised serious claims that left habeas review open as another avenue. She declined to speculate whether he would pursue that option.
Hug was joined in his opinion by Judges M. Margaret McKeown and William Fletcher.
The case is United States v. Moreland, 05-30541.
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