IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

JOHN M. WASSON, 

Defendant. 

BILLY J. WILLIAMS 

United States Attorney 

HANNAH HORSLEY 

Assistant United States Attorney 

1000 S.W. Third, Suite 600 

Portland, OR 97204 

(503) 727-1087 

Attorneys for Plaintiff 

LISA C. HAY 

Federal Public Defender 

MICHELLE M. SWEET 

Assistant Federal Defender 

101 S.W. Main Street 

Suite 1700 

Portland, OR 9720 

Attorneys for Defendant 

1 - OPINION AND ORDER 

2:15-CR-00054-BR 

OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 1 of 13
BROWN, Judge. 

This matter comes before the Court on Defendant John M. 

Wasson's Appeal (#5) of the Judgment entered in this matter by 

Magistrate Judge Patricia Sullivan on February 12, 2015. 

For the reasons that follow, the Court VACATES the Judgment 

and directs the parties to confer concerning further proceedings. 

BACKGROUND 

In June 2014 the United States Forest Service cited 

Defendant John Wasson for Maintaining a Structure Without a 

Special Use Authorization in violation of 36 C.F.R. § 261.lO(a); 

Interfering with a Forest Officer Who Was Engaged in the 

Performance of Official Duties in violation of 36 C.F.R. 

§ 261.3(a); and Improving, Maintaining, Occupying or Using a 

Residence Without a Special Use Authorization or Operations Plan 

in violation of 36 C.F.R. § 216.lO(b). 

On July 16, 2014, Wasson was arraigned on these charges 

before Magistrate Judge Patricia Sullivan. At the arraignment 

Magistrate Judge Sullivan engaged in the following colloquy with 

Wasson: 

THE COURT: Have a seat, Mr. Wasson. You have 

previously been in court. 

THE DEFENDANT: Yes. 

THE COURT: 

2 - OPINION AND ORDER 

And you were in court while I read 

the rights on --

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 2 of 13
THE DEFENDANT: 

THE COURT: 

THE DEFENDANT: 

THE COURT: 

THE DEFENDANT: 

THE COURT: 

Yes, ma'am. 

These are new offenses. 

Yes. 

Yeah. You understand that. These 

are tickets that have been issued 

this year, as opposed to the --

Yes, Your Honor. 

-- other tickets that you have 

already litigated. So I'm going to 

ask you right now: How do you 

plead? 

THE DEFENDANT: Not guilty. 

July 16, 2014, Arraignment Tr. at 2. The record, however, does 

not reflect the Magistrate Judge's reading of rights to Wasson on 

July 16, 2014, and, therefore, the manner in which Wasson was 

advised of his rights on July 16, 2014, is not clear. The record 

does reflect the Magistrate Judge noted at the arraignment that 

Wasson had filed a Motion to Dismiss the charges, and she set 

September 17, 2014, as the date for a hearing on that Motion and 

for trial. 

When Wasson appeared before the Magistrate Judge on 

September 17, 2014, several other defendants also were appearing 

for Central Violations Bureau (CVB) violations. The Magistrate 

Judge provided the following advice of rights to the group of CVB 

defendants, including Wasson: 

JUDGE SULLIVAN: 

3 - OPINION AND ORDER 

Okay. 

fine. 

people 

All right. That's 

Your citations, the 

that are here are 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 3 of 13
MS. MARTIN: 

JUDGE SULLIVAN: 

either a class B or class C 

misdemeanor. 

* * * 

You may hire a lawyer if you 

choose, but because these 

tickets are in the nature of 

misdemeanors, you're not 

entitled to the appointment of 

an attorney by the Court. I 

assume that the government's 

not going to seek any jail 

time or probation or sentences 

on most of the tickets? 

Your Honor, with the exception 

of Mr. Wasson's case, that 

would be correct. 

All right. And jury trials 

are not available unless the 

jail time sought by the 

government is in excess of six 

months. So those are the 

rights as I've described. 

Sept. 17, 2014, CVB Proceedings Tr. at 5-6 (emphasis added). 

Later in the September 17, 2014, proceeding two additional 

defendants were added to the CVB docket. Accordingly, the 

Magistrate Judge engaged in a second colloquy with all 

defendants, including Wasson, regarding advice of rights. The 

Magistrate Judge stated in pertinent part: 

You may hire a lawyer to represent you -- to 

represent you, if you choose. But because your 

matters are class B and C misdemeanors, which do 

not require the appropriate jail time or 

probationary sentences, the Court will not appoint 

an attorney. But if you want to hire one, that's 

fine. Just let us know. 

Sept. 17, 2014, CVB Proceedings Tr. at 10 (emphasis added). It 

4 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 4 of 13
appears Wasson's matter was continued for trial to November 12, 

2014. 

On November 12, 2014, when Wasson appeared for trial, the 

government stated it would "be seeking a probationary sentence 

with the condition that Wasson be excluded from Forest Service 

lands for the period of time he's on probation should the matter 

reach sentencing on any of the counts.n Nov. 12, 2014, Trial 

Tr. at 19. The trial was continued to January 28, 2015, for 

various reasons. 

On January 28, 2015, after a trial at which Wasson appeared 

without counsel, the Magistrate Judge found Wasson guilty on all 

three citations and sentenced him to two years of bench probation 

that included the following conditions: (1) Wasson is not 

permitted to camp overnight at the Slippery Rocks mining claim or 

any United States Forest Service (USFS) land, including any 

public campground administered by the USFS; (2) Wasson is not 

permitted to have personal property at the Slippery Rocks mining 

claim with the exception of personal property necessary to 

conduct mining activity; and (3) Wasson is permitted to have a 

motor vehicle at the Slippery Rocks site provided the vehicle is 

used for transportation purposes rather than camping overnight. 

On February 12, 2015, the Magistrate Judge entered a 

Judgment against Wasson reflecting the sentence of two years 

bench probation and the conditions set out at trial. 

5 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 5 of 13
On February 10, 2015, Wasson filed an Appeal of Conviction 

and Sentence in this Court pursuant to 18 U.S.C. § 3402 and 

Federal Rule of Criminal Procedure 58(g) (2) (B). Wasson also 

filed a Motion to Appoint Counsel for his appeal. 

On February 25, 2015, the government filed a Response to 

Wasson's Motion to Appoint Counsel in which it advised the Court 

that it did not object to Wasson's request for appointed counsel 

on appeal. The government also noted: 

Although petty offenses do not per se provide a 

defendant a right of counsel under Federal Rule of 

Criminal Procedure 58(b) (2), the government did 

reserve the right to request the maximum penalty 

for these violations, which includes the 

possibility of up to six months' incarceration. 

36 C.F.R. § 261.l(b); 18 U.S.C. § 358l(b) (7). 

Given the potential deprivation of his liberty 

interests, defendant had a right to counsel in his 

trial before the magistrate court, though he chose 

to represent himself pro se. U.S. Const. Amend. 

XI; see also e.g., Argersinger v. Hamlin, 407 U.S. 

25, 37 (1972) (holding the Constitution requires 

right to counsel for petty offenses punishable by 

six months' imprisonment). The government did not 

contest appointment of counsel for his trial and 

does not contest appointment of counsel for his 

current appeal. 

Gov't Resp. to Def.'s Mot. to Appoint Counsel (#14) at 2 

(emphasis added). 

On February 27, 2015, the Court entered an Order appointing 

counsel to represent Wasson for this appeal. 

On October 30, 2015, the Court took Wasson's appeal under 

advisement. 

6 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 6 of 13
DISCUSSION 

As noted, Wasson was convicted of Maintaining a Structure 

Without a Special Use Authorization in violation of 36 C.F.R. 

§ 261.lO(a); Interfering with a Forest Officer Who Was Engaged in 

the Performance of Official Duties in violation of 36 C.F.R. 

§ 261.3(a); and Improving, Maintaining, Occupying or Using a 

Residence Without a Special Use Authorization or Operations Plan 

in violation of 36 C.F.R. § 216.lO(b). 

Wasson raises five grounds for appeal with several subparts. 

The Court, however, finds Wasson's first ground for appeal to be 

dispositive and, therefore, declines to address Wasson's other 

grounds. 

In his first ground for appeal Wasson asserts he was not 

adequately advised of his right to counsel at trial, he did not 

knowingly and intelligently waive that right, and the failure to 

advise him of his right to counsel constituted a Sixth Amendment 

violation and requires reversal of his convictions. Wasson also 

requests a new trial. 

I. Review Standard 

Whether a defendant was denied a Sixth Amendment right to 

counsel is a question of law that the Court reviews de nova. 

United States v. Danielson, 325 F.2d 1054, 1066 (9th Cir. 2003). 

The Court also reviews the validity of a waiver of the right to 

counsel de novo. United States v. Gerritsen, 571 F.3d 1001, 1006 

7 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 7 of 13
(9'" Cir. 2009). "'[T]he burden of establishing the legality of 

the waiver is on the government.'" Id. (quoting United States v. 

Balough, 820 F.2d 1485, 1487 (9'" Cir. 1987). 

II. Right to Counsel and Wavier of that Right 

The Sixth Amendment provides "[i]n all criminal 

prosecutions, the accused shall enjoy the right . to have the 

Assistance of Counsel for his defence." U.S. Const. amend. VI. 

The Supreme Court has interpreted the Sixth Amendment as 

guaranteeing "a person brought to trial in any state or federal 

court must be afforded the right to the assistance of counsel 

before he can be validly convicted and punished by imprisonment." 

Faretta v. California, 422 U.S. 806, 807 (1975). "The Sixth 

Amendment also guarantees a criminal defendant the constitutional 

'right to proceed without counsel when he voluntarily and 

intelligently elects to do so.'" Gerritsen, 571 F.3d at 1007 

(quoting Faretta, 422 U.S. at 807) . "A defendant therefore has 

two correlative and mutually exclusive Sixth Amendment rights: 

the right to have counsel, on one hand, and the right to refuse 

counsel and represent himself, on the other." Gerritsen, 571 

F.3d at 1007 (citation omitted). 

Because a defendant who exercises the right to 

self-representation foregoes the benefits of 

exercising the right to counsel, "the accused must 

'knowingly and intelligently' forego those 

relinquished benefits." Faretta, 422 U.S. at 835. 

When a defendant elects to waive the right to be 

represented by trial counsel, "[w]arnings of the 

pitfalls of proceeding to trial without counsel 

8 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 8 of 13
. must be rigorously conveyed." Iowa v. 

Tovar, 541 U.S. 77, 89 (2004). 

Id. 

III. Analysis 

Wasson asserts he was not advised that he had any right to 

appointed counsel, and, therefore, he did not knowingly and 

intelligently waive any such right when he proceeded pro se at 

trial. 

As noted, the government conceded in its Response to 

Wasson's Motion for Appointment of Counsel on appeal that it 

"reserve[d] the right to request the maximum penalty for 

[Wasson's] violations, which includes the possibility of up to 

six months' incarceration," and, therefore, Wasson "had a right 

to counsel in his trial before the magistrate court." Gov't 

Resp. to Def.'s Mot. to Appoint Counsel (#14) at 2 (emphasis 

added). Although the government also asserted in that Response 

that Wasson waived his right to counsel at trial, that assertion 

is not supported by the record. 

As noted, the record reflects the Magistrate Judge advised 

Wasson (together with other defendants on the CVB docket) that he 

could "hire a lawyer if you choose, but because these tickets are 

in the nature of misdemeanors, you're not entitled to the 

appointment of an attorney by the Court." Although the 

government confirmed it was not going to seek jail time or 

probationary sentences as to the other CVB defendants, and, 

9 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 9 of 13
therefore, they were not entitled to appointed counsel, the 

government specifically reserved its right to seek jail time of 

up to six months for Wasson. The Court, however, did not advise 

Wasson that he was entitled to appointed counsel if he was 

indigent. Later in that same proceeding Wasson (and others) were 

again advised: "You may hire a lawyer to represent you . ' if 

you choose. But because your matters are class B and C 

misdemeanors, which do not require the appropriate jail time or 

probationary sentences, the Court will not appoint an attorney." 

This later advice was, again, inconsistent with the government 

reserving its right to seek jail time for Wasson. 

Because Wasson was not made aware that he had a right to 

appointed counsel if he was indigent, the Court concludes the 

record is insufficient to support a finding that Wasson made a 

knowing, intelligent, and voluntary waiver of such right. 

In its Answering Brief on appeal the government no longer 

asserts Wasson waived his right to counsel but instead, contrary 

to its statement in its Response to Wasson's Motion for 

Appointment of Counsel, the government now asserts Wasson did not 

have a right to counsel at trial because "he was never subject to 

the risk of actual imprisonment for [his] petty offenses." In 

particular, the government contends only actual imprisonment or 

the threat of actual imprisonment "via a probated or suspended 

sentence" triggers a right to court-appointed counsel. See 

10 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 10 of 13
Alabama v. Shelton, 535 U.S. 654, 657 (2002) (holding a suspended 

sentence that may "end up in the actual deprivation of a person's 

liberty" may not be imposed without assistance of counsel). See 

also United States v. First, 731 F.3d 998, 1002 (9th Cir. 2013) 

("the Sixth Amendment right to counsel serves as a constitutional 

minimum in all state and federal criminal proceedings that result 

in a sentence of actual imprisonment or a suspended sentence of 

imprisonment."). According to the government, "no term of 

imprisonment was ever suggested or imposed upon defendant" in 

this matter. 

Again, however, the government's argument is not supported 

by the record. As noted, when the Magistrate Judge stated at the 

September 2014 CVB proceeding that the defendants (including 

Wasson) were not entitled to the appointment of an attorney by 

the Court because the Magistrate Judge "assum[ed] . the 

government's not going to seek any jail time or probation or 

sentences on most of the tickets," the government agreed that 

assumption was correct "with the exception of Mr. Wasson's case." 

Thus, the government's response to the Magistrate Judge left open 

the possibility of jail time in Wasson's case either directly or 

if Wasson violated any probationary sentence. Although the 

government suggests a decision was made at some point that Wasson 

would not be subject to a jail sentence, the Court notes such a 

decision is not apparent on this record nor does the record 

11 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 11 of 13
reflect the potential punishment that Wasson would be subjected 

to if he violated his bench probation or the conditions placed on 

him in the Judgment entered in this matter. 

On this record, therefore, the Court concludes the 

government has not established Wasson did not have the right to 

appointed counsel at trial because the government has failed to 

establish that Wasson's suspended sentence could not "end up in 

the actual deprivation of [his] liberty" or that he was not at 

risk of a jail term at the time of trial. Because Wasson was not 

made aware that he had the right to appointed trial counsel if he 

was unable to afford to hire counsel of his choice, the Court 

also concludes the government has not shown Wasson waived his 

right to trial counsel. 

Accordingly, the Court vacates Wasson's February 2015 

conviction for Maintaining a Structure Without a Special Use 

Authorization in violation of 36 C.F.R. § 261.lO(a); Interfering 

with a Forest Officer Who Was Engaged in the Performance of 

Official Duties in violation of 36 C.F.R. § 261.3(a); and 

Improving, Maintaining, Occupying or Using a Residence Without a 

Special Use Authorization or Operations Plan in violation of 36 

C.F.R. § 216.lO(b). 

In his Opening Brief Defendant states "[i]f the Court 

determines [Wasson] did not receive the required advice of rights 

regarding . . appointed counsel, [Wasson] requests a new 

12 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 12 of 13
trial.n The government, however, does not provide a position as 

to further proceedings. The Court, therefore, directs the 

parties to confer and to file no later than February 4, 2016, a 

joint statement of their positions as to what further proceedings 

are warranted in light of the fact that Wasson's convictions are 

now vacated. 

CONCLUSION 

For these reasons, the Court VACATES Wasson's February 2015 

conviction for Maintaining a Structure Without a Special Use 

Authorization in violation of 36 C.F.R. § 261.lO(a); Interfering 

with a Forest Officer Who Was Engaged in the Performance of 

Official Duties in violation of 36 C.F.R. § 261.3(a); and 

Improving, Maintaining, Occupying or Using a Residence Without a 

Special Use Authorization or Operations Plan in violation of 36 

C.F.R. § 216.lO(b). 

The Court DIRECTS the parties to confer and to file no later 

than February 4, 2016, a joint statement of their positions as to 

further proceedings in light of this Opinion and Order. 

IT IS SO ORDERED. 

DATED this 22nd day of January, 2015. 

ANNA J. BROWN 

United States District Judge 

13 - OPINION AND ORDER 

Case 2:15-cr-00054-BR Document 41 Filed 01/22/16 Page 13 of 13