NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0729n.06

Filed: November 25, 2008

No. 07-3345

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WARREN LEE BACK,

Defendant-Appellant.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

C O U R T FO R THE

SOUTHERN DISTRICT OF

OHIO

O P I N I O N

BEFORE: NORRIS, ROGERS, and KETHLEDGE, Circuit Judges.

ALAN E. NORRIS, Circuit Judge. This single-issue appeal concerns the decision of the

district court permitting defendant Warren Lee Back to represent himself at trial. The jury returned

a guilty verdict on all eighteen counts of a superseding indictment. On appeal, defendant contends

that the district court should have sua sponte ordered a psychiatric or psychological examination,

which would have revealed that he was incompetent to choose self-representation due to mental

illness. For the reasons outlined in this opinion, we hold that the district court conducted the proper

inquiry before allowing defendant to represent himself.

I.

On November 11, 2005, a grand jury returned a two-count indictment charging defendant

with bank robbery, 18 U.S.C. §§ 2113(a) & (d), and carrying a firearm in relation to a crime of

violence, 18 U.S.C. § 924(c)(1). Defendant filed his motion seeking self-representation on October
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10, 2006, less than a month before the return of a superseding indictment, which included sixteen

additional counts. In his motion, defendant maintained that he understood the risks of his request,

having had “significant exposure to the Criminal Justice System.” He also noted that he had a GED,

some college, understood the “severity” of the charges, and routinely visited the law library. 

The district court held a hearing on October 20. Defendant told the court, “I’m aware of

certain appealable rights that I give up based upon errors that I may make or any standby counsel

may make.” He acknowledged when questioned that he knew the charges involved mandatory

minimum sentences. Although the district court cautioned defendant that self-representation was

a “perilous undertaking,” he stood firm. For his part, appointed counsel told the court that he had

been impressed by his client’s “knowledge and his skills.” The district court granted the motion after

offering further cautions but without inquiring into defendant’s competency. The court assigned

appointed counsel to stay on as standby counsel.

On December 1, 2006, the district court held a pretrial hearing. At this point, defendant had

been re-arraigned on the superseding indictment. The trial began on December 11. It ended in a

mistrial after the jury was permitted to hear a taped conversation that included information about

defendant’s criminal record.

The second trial lasted a week. In the course of his self-representation, defendant filed

written motions, lodged numerous objections, and, after his conviction, prepared a sentencing

memorandum. 

The probation officer who prepared the pre-sentence report noted that defendant had a history

of mental illness, including bipolar disorder for which he had received medication. He had also
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attempted suicide during prior incarcerations. At sentencing, the district court observed that

defendant might need psychological assessment and care while incarcerated. 

The district court sentenced defendant to a total of 2,782 months of imprisonment, imposed

an $1,800 assessment, and ordered defendant to pay restitution of $128,109. 

II.

The United States Supreme Court has made clear that an accused, if “competent,” has the

constitutional right to self-representation. However, a defendant must make that choice knowingly

and intelligently, which the Court explained in these terms:

When an accused manages his own defense, he relinquishes, as a purely

factual matter, many of the traditional benefits associated with the right to counsel.

For this reason, in order to represent himself, the accused must knowingly and

intelligently forgo those relinquished benefits. Although a defendant need not himself

have the skill and experience of a lawyer in order competently and intelligently to

choose self-representation, he should be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that he knows

what he is doing and his choice is made with eyes open.

Here, weeks before trial, [defendant] clearly and unequivocally declared to

the trial judge that he wanted to represent himself and did not want counsel. The

record affirmatively shows that [defendant] was literate, competent, and

understanding, and that he was voluntarilyexercising his informed free will. The trial

judge had warned [defendant] that he thought it was a mistake not to accept the

assistance of counsel, and that [defendant] would be required to follow all the ground

rules of trial procedure. We need make no assessment of how well or poorly

[defendant] had mastered the intricacies of the hearsay rule and the California code

provisions that govern challenges of potential jurors on voir dire. For his technical

legal knowledge, as such, was not relevant to an assessment of his knowing exercise

of the right to defend himself.

Faretta v. California, 422 U.S. 806, 835-36 (1975) (citations and punctuation omitted). 
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United States v. Back

 In Dusky v. United States, 362 U.S. 402 (1960), the Court held “that the standard for competence to stand trial 1

is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding’ and had ‘a rational as well as factual understanding of the proceedings against him.’” Godinez v.

Moran, 509 U.S. 389, 396 (1993). (quoting Dusky)

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Defendant faults the district court for not ordering a competency hearing before granting the

motion for self-representation. Even if that mistake could be excused, he maintains that his conduct

during his first trial acted as a red flag to the judge and should have resulted in an order for

psychological testing after the mistrial. As support for his position, defendant points out that he

shifted back and forth between the first and third person when talking about himself and acted in a

“grandiose” manner consistent with psychotic paranoia. As he puts it in his brief to this court, “A

decision [to represent oneself] by a defendant facing life in prison on 18 counts plus enhancements

itself should be a reason to at least doubt his competency, at least to the degree that a competency

evaluation by a psychiatrist and/or psychologists should be conducted.” 

The Supreme court’s recent holding in Indiana v. Edwards, 128 S.Ct. 2379 (2008), indicates

that a defendant who proceeds pro se may need to meet a higher standard of competency than merely

that needed to stand trial. However, the record in this case does not give us reason to find that 1

defendant fell within the potential gray area between competency to stand trial and competency to

self-represent. Defendant’s competency to stand trial was never in question, and nothing in the

Court’s recent opinion suggests that a disparity between these two competency standards creates an

obligation that the trial court inquire into the defendant’s competency to proceed pro se in every case

in which a defendant wishes to do so.
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The district court possesses the statutory authority to order a competency hearing at any time

prior to sentencing “if there is reasonable cause to believe that the defendant may presently be

suffering from a mental disease or defect rendering him mentally incompetent to the extent that he

is unable to understand the nature and consequences of the proceedings against him or to assist

properly in his defense.” 18 U.S.C. § 4241(a). Prior to such a hearing, the court may order a

psychiatric or psychological examination of defendant. 18 U.S.C. § 4241(b). However, defendant

fails to point to anything in the record that would indicate that “there [was] reasonable cause” for the

district court to suspect that he was mentally incompetent other than the general assertion that he

acted in a “grandiose” manner during the first trial. As recounted above, the district court posed

questions similar to those cited with approval in Faretta before granting defendant the right to

represent himself:

Defendant is aware of and understands the nature and seriousness of the charges

against him, as well as the potential range of the sentence he may face if he is

convicted of those charges. Defendant is fully competent to make the decision to

represent himself. He has obviously invested significant time in legal research and

he exhibited a clear understanding of the statutes he is accused of violating, as well

as familiarity with the United States Sentencing Guidelines and the advisory nature

of those Guidelines. Defendant also understands that his decision to represent himself

will limit the bases upon which he may be able to pursue an appeal from any

conviction and any sentence that may be imposed after trial.

Clearly, the district court was aware of the inquiry required when a defendant seeks to represent

himself and there is nothing in the record to suggest either that the court failed to conduct such an

inquiry or that the decision it reached constituted error.

We would be remiss if we did not address defendant’s contention that seeking to proceed pro

se, especially when confronted with serious charges, inherently raises the question of competency.
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As the Supreme Court has made clear, while a criminal defendant who proceeds pro se may, like any

other pro se litigant, have a fool for a client, that does not mean that he or she is presumptively

incompetent:

We do not mean to suggest, of course, that a court is required to make a competency

determination in every case in which a defendant seeksto plead guilty or to waive his

right to counsel. As in any criminal case, a competency determination is necessary

only when a court has reason to doubt the defendant’s competence.

Godinez, 509 U.S. at 401 n.13. In this case, even after the indictment was superseded with an

additional sixteen counts, the district court had no reason to question defendant’s competence. At

the hearing on the original motion, defendant was told of the government’s intent to seek additional

charges but elected to proceed regardless. Also, before his second trial began, defendant

acknowledged that he realized that he was facing 210 years of incarceration. While defendant’s

decision may have been ill-advised, the district court did enough to ascertain that defendant was

capable of understanding the consequences of his course of action. 

Finally, defendant takes issue with restrictions placed upon standby counsel by the district

court. Specifically, he contends that standby counsel should have been permitted to sit at counsel

table with him. Our review of the record indicates that defendant had ample opportunity to consult

with standby counsel. Moreover, the district court indicated to defendant that he could have standby

counsel join him but only in the role of full-fledged counsel. This court has previously held that a

trial court has discretion not to allow a “hybrid” representation where appointed counsel performs

some of the functions of trial counsel while the defendant performs others. United States v. Mosely,
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810 F.2d 93, 97-98 (6th Cir. 1987). In short, the district court acted well within its discretion in

orchestrating the conduct of the trial.

III.

The judgment is affirmed.