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Media Alerts - United States v. Ductan -- Fourth Circuit
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October 6, 2015
  United States v. Ductan -- Fourth Circuit
Headline: The Ductan Rule: Counsel, Whether You Want It or Not?

Issue Presented: Whether the district court violated the applicant's Sixth Amendment right to counsel when it (1) required him to proceed pro se after finding he forfeited his right to counsel, and (2) subsequently removed him from the courtroom and chose a jury in his absence.

Brief Summary: In April 2004, a confidential informant told the Charlotte Police ("CMPD") that Phillip Ductan had offered to sell him 100 pounds of marijuana. CMPD set up a controlled buy at a Cracker Barrel in Charlotte. On the day of the controlled buy, as CMPD officers approached the vehicle, Ductan threw his firearm on the ground and attempted to flee. In September 2004, a federal grand jury indicted Ductan on 3 counts: (1) conspiracy to possess with intent to distribute marijuana (in violation of 21 USC §846); (2) possession with intent to distribute marijuana and aiding and abetting the same (21 USC §§ 841 and 18 USC § 2); and (3) carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 USC § 924(c)(1)).

Ductan initially obtained private counsel to represent him on the charges, but counsel filed a motion to withdraw, citing Ductan's lack of cooperation and communication. At a hearing on counsel's motion, the magistrate judge asked Ductan whether he wished to hire a new attorney or instead wanted the court to appoint counsel. Ductan complained about the difficulties of finding counsel while incarcerated, but stated he didn't want to represent himself. When the magistrate judge pressed Ductan to choose whether to hire private counsel, have a court appointed counsel, or proceed pro se, Ductan began to make "nonsense statements," including "nonsense responses" to the judge when the judge asked Ductan if he was under the influence of drugs or alcohol. The judge explained to Ductan that "by making nonsensical statements [you're] found to have waived the right to counsel." The judge also directed the federal public defender to appoint standby counsel.

The case thereafter proceeded to trial. During voir dire, Ductan interrupted the court and kept making statements that made no sense. The magistrate judge had Ductan removed from the courtroom. Ductan was placed in a holding cell where he could watch and hear what was going on, but could not participate. Standby counsel was introduced to the jury, but not as counsel for Ductan. Standby counsel also did not move to strike jurors or otherwise participate in the jury selection process. After Ductan's conviction, the U.S. Court of Appeals for the Fourth Circuit heard the case on review.

Adopting the Ninth Circuit's reasoning in United States v. Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004), the court first found that when a district court determines a defendant has validly waived his right to counsel and fails to object to a district court's finding of forfeiture, the appellate court should review the case de novo. In its per curiam opinion, the Fourth Circuit, focused solely on whether the district court violated the applicant's Sixth Amendment right to counsel when it required him to proceed pro se after finding he forfeited his right to counsel. The court held that the magistrate judge erred in concluding that Ductan forfeited his right to counsel.

The Sixth Amendment guarantees to criminal defendants the "assistance of counsel for [their] defense." That right "cannot be waived by his conduct." Instead, for a defendant to assert his or her right to self-representation, the defendant must do so by knowingly, intelligently, and clearly and unequivocally forgoing counsel after "being made aware of the dangers and disadvantages of self-representation." In light of these rules, the Fourth Circuit instructed district courts to proceed with appointed counsel "absent an unmistakable expression by the defendant that so to proceed is contrary to his wishes."

Applying the test to Ductan, the court found that he had not clearly and unequivocally chosen to proceed as a pro se litigant and that even if he did, the district court did not warn him about the dangers and disadvantages of proceeding pro se.

In his concurring opinion, Judge Diaz wrote separately to discuss whether the district court violated the applicant's Sixth Amendment right to counsel when it subsequently removed him from the courtroom and chose a jury in his absence. While Judge Diaz determined that the magistrate judge was right in removing Ductan from the courtroom, he further determined the magistrate erred in not appointing counsel in Ductan's absence. Judge Diaz found such an appointment imperative considering the importance of voir dire. As Judge Diaz wrote, "if a pro se litigant is not in the courtroom, no critical stage of the trial may be conducted in his absence without the appointment of counsel." Agreeing with the majority that the right to counsel cannot be waived by misconduct, Judge Diaz found that a pro se litigant might lose his right to be present by misconduct, so long as the court appointed counsel in his absence. Judge Diaz found this to be lacking in Ductan's case because nothing on the record indicated that standby counsel was "representing Ductan."

To read the full opinion, click here.

Panel: Judges Motz, Shedd, and Diaz

Argument Date: 05/13/2015

Date of Issued Opinion: 09/2/2015

Docket Number: No. 14-4220

Decided: Vacated and remanded by published opinion

Case Alert Author: Eric Suarez, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Erin E. Comerford, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee

Author of Opinion: Per Curiam; Judge Diaz (concurrence)

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/07/2015 at 09:34 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/06/2015 04:50 PM     4th Circuit  

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