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United States v. Turner

United States Court of Appeals, Ninth Circuit

July 27, 2018

United States of America, Plaintiff-Appellee,
v.
Jonathan Glen Turner, AKA J.T., AKA Jon Turner, AKA Jon G. Turner, AKA Jonathan G. Turner, Defendant-Appellant.

          Argued and Submitted November 17, 2017 Pasadena, California

          Appeal from the United States District Court for the Central District of California D.C. No. 8:09-cr-00210-JVS-1 James V. Selna, District Judge, Presiding

          Katherine Kimball Windsor (argued), Law Office of Katherine Kimball Windsor, Pasadena, California, for Defendant-Appellant.

          George E. Pence (argued), Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Sandra R. Brown, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

          Before: Milan D. Smith, Jr. [*] and Sandra S. Ikuta, Circuit Judges, and Robert W. Gettleman, [**] District Judge.

         SUMMARY[***]

         Criminal Law

         The panel affirmed convictions for two separate fraud schemes pursuant to trials in 2009 and 2012.

         The panel held that the defendant's Sixth Amendment right to counsel was not violated in the 2009 case when the district court partially rejected the eighth request for a continuance, after continuing the trial for over two and half years.

         Because the district court reasonably concluded that the defendant had repeatedly alternated between invoking his right to self-representation and his right to counsel in order to manipulate proceedings and cause delay, the panel rejected the defendant's claim that the district court violated his Sixth Amendment right to counsel in the 2012 case by requiring him to represent himself.

         The panel held that the district court did not abuse its discretion in determining that the defendant was not entitled in either trial to CJA funds to hire a psychiatrist to conduct a mental evaluation, and that the district court did not err in failing to hold a sua sponte competency hearing in the 2012 trial. Because a reasonable court would not doubt the defendant's competency, the panel held that the district court did not err in denying the defendant's motion for mistrial and in its decision not to terminate the defendant's self-representation.

          OPINION

          IKUTA, Circuit Judge.

         Jonathan Turner appeals his convictions for two separate fraud schemes pursuant to trials in 2009 and 2012. We conclude that Turner's Sixth Amendment right to counsel was not violated in the 2009 case when the court partially rejected the eighth request for a continuance, after continuing the trial for over two and half years. Because the court reasonably concluded that Turner had repeatedly alternated between invoking his right to self-representation and his right to counsel in order to manipulate proceedings and cause delay, we also reject Turner's claim that the district court violated his Sixth Amendment right to counsel in the 2012 case by requiring him to represent himself. Finally, we reject Turner's claims that the district court erred in not authorizing funds to hire a psychiatrist to conduct a mental evaluation, in not sua sponte conducting a competency hearing, and in not declaring a mistrial during the 2012 trial. Accordingly, we affirm.

         I

         This appeal arises from two criminal convictions for separate fraud schemes. The two cases will be referred to as the "2009 case" and the "2012 case," corresponding to when indictments in the cases were issued. As a result of Turner's behavior, both cases had circuitous routes to trial, marked by the defendant's requests for multiple continuances, his complaints about and changes to his counsel interspersed with requests to represent himself and periods of proceeding pro se, and his frequent, changing complaints regarding a panoply of medical symptoms and treatments. In order to provide the context for Turner's claims, we set out a lengthy, chronological history of Turner's interaction with the court, indicating which incidents relate to the 2009 case, the 2012 case, or both.

         2009 case. On October 14, 2009, a federal grand jury indicted Turner, charging him with two counts of mail fraud in violation of 18 U.S.C § 1341 and two counts of wire fraud in violation of 18 U.S.C. § 1343. The indictment alleged that between January 2005 and June 2006, Turner defrauded investors by telling them that he was in the business of importing goods from Asia and reselling the goods to purchasers in the United States. He told victims that he would use their investment to pay for the purchase or manufacture of goods, and then use the profit from reselling the goods to repay them at a specified rate of return. These were falsehoods. In fact, Turner used the victims' money to enrich himself and to make payments of interest and principal to other victims so as to continue his Ponzi-like scheme.

         At his December 14, 2009 arraignment, Turner was represented by Anne Hwang, a deputy federal public defender. The case was assigned to Judge Guilford, sitting in the Santa Ana Division of the Central District of California. Jesse Gessin, another deputy federal public defender, replaced Hwang as Turner's counsel in March 2010. The parties stipulated to two continuances, which continued the proposed trial date from February 9, 2010 to May 31, 2011.

         On May 5, 2011, Gessin notified the court that he had learned that Turner had retained Las Vegas counsel, Michael Cristalli, who would substitute in as counsel if given six to nine months to prepare. The court agreed to continue the trial until November 29, 2011. In November 2011, the parties stipulated to a further continuance to February 28, 2012, which the court granted. On January 3, 2012, Cristalli moved to withdraw as Turner's counsel, citing a "complete breakdown in communication." After the court granted this motion, Turner requested a fifth continuance to seek new counsel. The court granted his request and set a trial date for May 15, 2012.

         On March 19, 2012, Turner appeared in court without counsel. He claimed that the government had seized his bank accounts and so he was unable to hire counsel of his choice, and filed a motion to require the government to apologize. The government denied seizing or closing his accounts.[1] The court offered to appoint a representative of the public defender's office, but Turner declined because he believed his "case [was] too complex." Instead, Turner decided to proceed pro se. The court conducted a colloquy with Turner pursuant to Faretta v. California, 422 U.S. 806 (1975), informing him of the disadvantages of representing himself and an estimate of potential penalties. The court found that Turner had knowingly and voluntarily waived the right to counsel, and permitted him to represent himself. Nevertheless, the court appointed Gessin to serve as standby counsel.

         On April 16, 2012, Turner moved pro se for a sixth continuance, and asked the court that a trial date be set for sometime after September 10, 2012. The government objected to a further continuance, given that the case was almost three years old. In a hearing on April 23, 2012, the court considered Turner's and the government's arguments and stated that "[i]t is now appearing to me that the defendant is purposefully delaying this case." Nevertheless, it granted a continuance, over the government's objection, to July 31, 2012.

         2012 case. On April 18, 2012, while the 2009 case was pending, a federal grand jury indicted Turner for three counts of wire fraud under 18 U.S.C. § 1343 and a sentencing enhancement for committing offenses while on pretrial release under 18 U.S.C. § 3147. According to the indictment, Eric Homa, a chiropractor, invented a device called the "Gorilla Back," which was designed to provide lower back support. In 2011, Turner formed a company with Homa's wife, Amber Homa, for the purpose of manufacturing and selling the Gorilla Back. Turner and the Homas agreed to split the manufacturing costs. Thereafter, Turner created fraudulent purchase orders and tricked the Homas into investing their savings, as well as money borrowed from other victims, to pay the manufacturing costs to fulfill these phony orders. Turner deposited these funds into his own bank account and used them for his personal benefit.

         At the arraignment hearing on May 9, 2012, the court appointed Dean Steward (a private attorney who accepts assignments to represent indigent defendants pursuant to the Criminal Justice Act (CJA)), to represent Turner in the 2012 case. This case was also assigned to Judge Guilford. The court set the 2012 trial for August 21, 2012.

         2009 case. On June 4, 2012, Turner asked the court to appoint Steward as his counsel in the 2009 case as well. The court granted this request, and relieved Gessin of his duties as standby counsel. The court continued the 2009 trial a seventh time to September 25, 2012.

         2012 case. At a hearing on July 30, 2012, Turner stated that he had no difficulties with Steward in the 2009 case but he was concerned about the attorney's "limitations," namely that Steward had to "get approval from the court to do certain things." Turner therefore asked to represent himself in the 2012 case but nevertheless stated he wished Steward to continue to represent him in the 2009 case.

         2009 and 2012 cases. After a closed hearing outside the presence of the government, the court denied Turner's motion to proceed pro se in the 2012 case. The court ruled that Steward would remain Turner's counsel in both the 2009 and 2012 case. The court retained the September 25, 2012 trial date for the 2009 case, and continued the trial date for the 2012 case to December 11, 2012.

         On August 12, 2012, Turner filed another motion to represent himself in both the 2009 case and the 2012 case.

         On August 22, 2012, contrary to his August 12 motion, Turner moved to replace Steward with a new attorney, Houman Fakhimi, in the 2009 case. At an August 27, 2012 hearing, Fakhimi stated he would not be ready to try the case on September 25, 2012, the date set for trial, because he needed to gather "bits and pieces of information," including interviewing two potential witnesses and reviewing some additional documents about contracts with the victims of the scheme. Fakhimi asked to continue the trial until late November or December. The government attorney, who was pregnant and had a due date in mid-November, stated she could agree only to a two week continuance, until October 9. After listening to both sides' concerns, the court ruled that Turner had the option of remaining with Steward and the September 25 trial date, or substituting Fakhimi and continuing the trial until October 9.

         After discussions with Turner, Fakhimi proposed the following approach-he would withdraw his substitution request and would review the documents in the case. If he believed he would be ready for trial by October 9, he would resubmit his substitution request by August 31. If not, Steward would continue as Turner's counsel in the 2009 case and proceed to trial on September 25. Turner conferred with Fakhimi, and asked the court to confirm his understanding of the plan: "So if Mr. Steward is on, it would be the 25th; and if my counsel would come on, it would be October 9?" The court responded, "Correct. Is that OK with you?" Turner stated "Yes."

         At the same hearing (but outside the presence of the government attorney) the district court considered Turner's August 12 request to represent himself in the 2012 case. The court asked Turner six times whether he wanted to represent himself, and Turner gave equivocal responses to each question. Finally, in response to the court's seventh reiteration of the question, Turner stated "No, Your Honor," but also stated he would try to retain a replacement for Steward.

         2009 case. On August 27, 2012, the court filed an order confirming the plan discussed at the hearing. Fakhimi did not resubmit a request to substitute as Turner's counsel, so the trial remained scheduled for September 25.

         On September 13, 2012, less than two weeks before trial, Turner filed a request to dismiss Steward and represent himself in the 2009 case "to assure that all elements, facts, and disclosures are made." In a hearing on September 17, Turner claimed that "there has been a complete breakdown of communication with Mr. Steward," that Steward made statements about jury selection that Turner construed to be "racist remarks," that Steward was not adequately communicating with Turner's family, and that Steward had given him "three different answers of why he was appointed to [Turner's] case." After listening to Turner's concerns, the court recounted the long history of Turner's vacillation between proceeding pro se and with counsel. In sum, the court had granted eight continuances, Turner had been represented by four different counsel and had sought a fifth, and Turner had asked to proceed pro se three times, but had changed his mind after the first two. The court stated that Turner had "lost credibility with this court" and that it believed Turner was "doing this for purposes of delay." The court then denied Turner's request to represent himself. In explaining its reasons, the court stated the request was not timely, particularly in light of the many continuances the court had previously given him, Turner's most recent statement that he would proceed with Steward and the government's reliance on that statement to subpoena and prepare witnesses, and the pendency of the trial in just a few days.

         The trial in the 2009 case proceeded as scheduled, with Steward acting as counsel. Throughout the trial, Turner repeatedly attempted to bring motions before the court independent of his counsel. The court denied these motions, and told Turner to bring such motions through Steward.

         After the government rested, Turner filed a motion for a mistrial and to proceed pro se due to Steward's alleged conflict of interest. The motion alleged, among other things, that "attorney Steward . . . was intentionally appointed to be the defendant's counsel so that the defendant would not have adequate counsel or an adequate defense." The court expressed its frustration with Turner's submission of this motion, stating:

A great deal of time has been spent in this trial trying to line Mr. Turner up with suitable counsel for him. I have made a finding, a conclusion, frankly, that much of these efforts have been in bad faith by the defendant . . . there are elements of bad faith in the defendant's repeated motions, requests, hearings, et cetera, concerning counsel, going way back to the first efforts by the defendant in that regard.

         But because Turner presented a motion concerning inadequate representation due to his attorney's conflict of interest, the court concluded that it had to schedule a hearing to listen to Turner's concerns directly. At the hearing, Turner explained that Steward had a relationship with a person who was seeking information about the FBI's intimidation of a government witness; as a result, Steward was preventing Turner from presenting certain parts of his defense. The district court denied the motion and found that Turner's statements were "further examples of [his] efforts to unfairly delay, confuse and plant error into these proceedings." The court also found that Turner's assertions were not factually accurate and that Steward had provided excellent representation. In a subsequent written order, the court confirmed its finding that Turner's request "was made in bad faith for the purposes of delay." The court also found that Turner "has engaged in other bad conduct, such as falsely claiming that he had medical problems."[2]

         A jury returned guilty verdicts on all counts on October 5, 2012.

         Steward subsequently filed a motion asking to be relieved in the 2009 case. The court granted this motion.

         2012 case. On October 18, 2012, Turner moved to represent himself in the 2012 case. The court conducted a Faretta colloquy. During the colloquy, the prosecutor mistakenly stated that Turner had been charged with mail and wire fraud, although the 2012 indictment included only wire fraud, and also erroneously stated that the maximum penalty for each count was 30 years' imprisonment when the correct statutory maximum was 20 years. The prosecutor failed to state the statutory maximum for a violation of 18 U.S.C. § 3147, which was also charged in the indictment. At the end of the colloquy, the court found that the Turner had knowingly and voluntarily waived the right to counsel, and permitted Turner to represent himself in the 2012 case. On November 19, 2012, the 2012 trial was continued to April 8, 2013.

         2009 case. On October 30, 2012, the court appointed a new CJA panel attorney, Robison Harley, to represent Turner at sentencing in the 2009 case. On January 2, 2013, Harley moved for CJA funds under 18 U.S.C. § 3006A(e)(1) for a psychiatric evaluation in order to assist in sentencing preparation and a new trial motion in the 2009 case. Harley's application stated that although Turner "is quite intelligent," he does show "certain mental, emotional, and mood disorders which might support a diminished capacity defense to the [sic] mental state charges." Harley noted that prior counsel had indicated that Turner's communications were "becoming more bizarre and irrational," and that Turner had "a long and well-documented history of ADD [attention deficit disorder] and ADHD [attention deficit hyperactivity disorder]."

         On January 22, 2013, the district court denied the request, finding that the defense had failed to carry its burden to "adequately show such an evaluation is necessary." The court stated that the descriptions of "'certain mental, emotional, and mood disorders' and 'bizarre and irrational' communications" were vague, and even if there had been evidence that Turner was currently suffering from a mental impairment, this would not show that Turner suffered from a mental impairment at the time the alleged crimes occurred. The court further held that Harley had failed to explain how a mental evaluation would be necessary for bringing motion for a new trial or sentencing preparation under the applicable legal standards. The court found that Turner "demonstrated a history of either hypochondria or purposeful attempts to manipulate the system through excessive claims of physical (though not mental) maladies that were disproved by credible health professionals."

         2012 case. On April 4, 2013, the court held a status conference in both the 2009 and 2012 case. With respect to the 2012 case, Turner complained about a range of issues relating to "[d]iscovery, [c]onstitutional violations of due process, access to the courts . . . . and the right to own counsel being blocked." He also confirmed a report from prison officials to the district court that he wiped his feces on the wall of his cell in the Santa Ana City Jail because he was "not being fed."[3] Turner moved to continue trial in the 2012 case. The court granted the motion, and trial was continued to July 16, 2013.

         2009 and 2012 cases. On April 15, 2013, Judge Guilford recused himself from sentencing in the 2009 case and from presiding over the 2012 case after learning that one of Turner's victims in the 2012 case had been the judge's next-door neighbor. Both cases were reassigned to Judge Selna, who also sat in the Santa Ana Division of the Central District of California. The court held its first status conference on both cases on April 17, 2013, and asked Turner if he wanted to continue to represent himself, to which Turner stated, "yes sir." Turner also asked to be moved to the Metropolitan Detention Center (MDC), because in the West Valley Detention Center where he was housed, he was having difficulties making copies and issuing subpoenas, ensuring that his mail was being sent out by the prison, obtaining food (because "there [we]re pieces of razor blade" and metal in the food provided by the prison), and obtaining his medication. The court recommended the marshals move him to MDC. Turner was transferred to the MDC on April 18, 2013.

         2012 case. At a status conference on May 6, 2013, Judge Selna revisited the question whether Turner wanted to represent himself in the 2012 case. In response to the court's question, Turner stated "I would request if I could get 30 days to consult with an attorney to see if I can have them come on my case as my own counsel." The court granted Turner's request for 30 days to attempt to retain counsel and scheduled a new status conference on June 10, but warned Turner that if he did not retain new counsel, the trial would remain scheduled for July 16.

         At the status conference on June 10, Turner stated he had interviewed a number of attorneys, had narrowed his list to three, and was within a week or two of retaining a new attorney. The court set another conference on June 25, but reiterated that the July 16 trial date remained firm.

         At the hearing on June 25, Turner claimed he had a back injury that required him to use a wheelchair, and refused to be transported to court. He therefore appeared telephonically. Turner told the court that he had not secured an attorney but was only waiting to give power of attorney to someone who could hire the attorney on Turner's behalf. The court set a July 8 status conference and reminded Turner that the trial was on July 16.

         On July 1, Turner filed a motion to stay the 2012 case indefinitely. He alleged he was physically mistreated while housed at the Orange County Jail before his transfer to the MDC. He also alleged he suffered from numerous medical issues including a lower groin hernia, a herniated disc and degenerated disc, severe back pain and numbness through his lower body, and a nodule on his thyroid. He stated he needed two biopsies and further testing for cancer. Turner claimed that his constitutional rights relating to due process, access to the courts, and access to counsel of choice had been violated. He also claimed that all the prior issues were compounded by "family issues" and "mental anguish and stress." The government opposed the motion, arguing, among other things, that the defendant had not provided any evidence supporting his medical claims.

         The court scheduled a July 8 hearing on these issues. After Turner again refused to be transported to the court, the court asked MDC medical staff to conduct a physical examination of Turner and advise the court regarding his medical condition and his transportation needs. According to MDC's report, Dr. Toh, a doctor at MDC, examined Turner and determined that Turner had spondylosis of the back, but could move both of his legs, had no hand or ...


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