RECOMMENDED DECISION ON GOVERNMENT'S MOTION FOR RULE 104(A) PRELIMINARY DETERMINATION OF ADMISSIBILITY
This matter is before the Court on remand from the First Circuit Courtof Appeals, following that court's determination that18 U.S.C. § 921(33)(B)(i)(I) and (II) provide affirmative defenses toa person charged with a violation of 18 U.S.C. § 922(g)(9). Pursuantto the opinion of the Court of Appeals, the defendant bears the burden ofproduction and persuasion to establish that his state conviction for amisdemeanor crime of domestic violence was obtained in the absence of anintelligent and knowing waiver of his right to counsel and/or a jurytrial. United States v. Hartsock, 347 F.3d 1, 6-7 (1st Cir. 2003). Forthe purpose of this case, both sides have agreed that the determinationwill be made by the court, prior to trial. Id. at 4 & n.3. The matterwas referred to me for an evidentiary hearing, which I held on January12, 2004. I now recommend that the Court adopt my proposed findings offact and rule, with respect to the United States's motion (Docket No.5), that the conviction obtained in the Maine District Court, Division ofSomerset, on June 29, 1992, is inadmissible because Hartsock has proventhat he did not knowingly and intelligently waive his right to counsel.Page 2
Proposed Findings of Fact
Willard Hartsock is a forty-one year old elevator mechanic with a highschool education and no formal legal training. Prior to the inception ofthe instant charge, his contact with the criminal justice systemconsisted of two offenses in the 1991-1992 time frame. In one instance hepleaded guilty to operating under the influence ("OUI") and received afine. In the second instance, the predicate state crime of misdemeanorviolence alleged in this federal indictment, Hartsock also pleaded guiltyand received a fine and a forty-eight hour jail sentence. In neitherinstance did Hartsock have an attorney representing him or consult with acriminal defense attorney prior to entering his guilty plea. In fact,Hartsock's only formal attempt at obtaining legal representation was toretain an attorney to handle his 1991 divorce. Ultimately, that attorneydid not attend the divorce hearing on Hartsock's behalf and the divorcewas resolved by his wife's attorney handling the hearing before thecourt.
Hartsock provides little by way of recollection relating to the eventsof March 4, 1992, his initial appearance before the Maine DistrictCourt. I therefore base my findings about that court appearance on thedeposition of District Court Judge Douglas Clapp, the judge who mostlikely presided at the arraignment,1 and the testimony of BrentMcSweyn, a Special Agent with the Bureau of Alcohol, Tobacco, andFirearms, who listened to the March 4, 1992, archived tape-recording ofthe arraignment on NovemberPage 31, 2000, and took notes of what was said.2 According to McSweyn, whenHartsock individually approached the bench, Judge Clapp asked him if hewas going to hire a lawyer and Hartsock replied in the affirmative. Heentered his plea of not guilty and Judge Clapp advised him, "You shouldsee your lawyer as soon as possible." (See also McSweyn Aff., Docket No.22.)
Judge Clapp's deposition testimony provides a few additional details ofwhat more likely than not occurred that day. Judge Clapp has followed thesame arraignment procedure since 1986. (Clapp Dep. at 8.) He initiallyinforms the entire group of arraigned individuals of certain rights,including the right to a jury trial, the right to counsel, and theavailability of appointed counsel for indigent defendants. It is fair toinfer that Hartsock was advised of those basic rights on March 4, 1992.Neither Hartsock nor McSweyn offer any testimony about the jury trialrequest form. Judge Clapp testified that the practice was to hand thedefendant a blank jury trial request as he left the courtroom. (ClappDep. at 10). However, the docket entries in this case indicate that ajury trial request form was "sent." Hartsock testified that the addresson the docket sheet, "P.O. Box 382, Greenville Junction, Maine" was not apost office box at which he ever received mail.
I find that Hartsock was most likely told about his right to a jurytrial and most likely received the written request form that day atcourt.3 In any event, I am satisfiedPage 4that, based on the record before me, Hartsock has failed to generate afactual issue about whether or not he intelligently and knowingly waivedhis right to a jury trial. The record fully supports the conclusion thathe was informed of his right to have his case decided by a jury and whatprocedure to follow to obtain a jury trial. This case is not about hisfailure to knowingly and intelligently waive that right. Under Maineprocedures applicable to him, he waived his right to jury trial. See Statev. Holmes, 2003 ME 42, ¶ 8, 818 A.2d 1054, 1057 (holding that aneffective waiver of the jury trial right occurs where the District Courtjudge, under Maine Rule of Criminal Procedure 22(a), administers the rulein a manner "that ensures each defendant is fully aware: (1) of his orher right to a jury trial; (2) of how to secure a jury trial; and (3)that failing to make a timely request constitutes a waiver of thisright").
After being informed of his right to a jury trial and his right tocounsel, Hartsock returned to court on June 29, 1992, believing that ifconvicted of the charge he would pay a fine as he had done in connectionwith his prior OUI charge. Hartsock did not consult with an attorneyprior to his return to court. When Hartsock arrived at the courthouse hewas approached by an assistant district attorney who took him into asmall conference room to discuss his case. The assistant districtattorney told him that if he did not plead guilty he faced the likelihoodof a sixty-day jail sentence and a $1,000 fine upon conviction. However,the assistant district attorney offered to recommend a forty-eight hourjail sentence and a $300 fine in exchange for a guilty plea. Hartsockcredibly testified before me that he was frightened by the specter of thesixty-day jail sentence andPage 5he believed that he had no option other than to plead guilty andreceive the lesser sentence. Shortly after the conversation in theconference room Hartsock went before Judge Clapp with the assistantdistrict attorney at his side and tendered his plea of guilty pursuant tothe plea agreement.
According to Agent McSweyn's notes and recollection, Judge Clapp askedHartsock if he had talked to an attorney before pleading guilty. Hartsockresponded affirmatively because he had spoken with the assistant districtattorney, who had given him "advice" before entering the courtroom.Significantly, McSweyn does not recall, nor does the docket reflect, thatthere was any significant discussion between the judge and Hartsock aboutwaiving the right to speak with his own counsel before the plea wasentered. Nor does McSweyn remember that the tape suggested that JudgeClapp asked the name of the attorney, why the attorney was not present,or the nature of the advice that Hartsock had received. Judge Clapptestified that his normal practice before accepting a guilty plea thatwould result in a jail sentence was to discuss with the defendant hiswaiver of counsel and have the defendant sign a waiver of counsel form inthe courtroom. (Clapp Dep. at 28-30.) Hartsock denies that such aconversation occurred on June 29, 1992. All of the corroborating evidencein this case supports Hartsock's testimony that there was no suchdiscussion at the time of this plea and that he did not in factunderstand that he still retained the right to speak with his own privateattorney before changing his plea to guilty. Once he became aware of thelikely ramifications flowing from a conviction for this offense, Hartsocknever knowingly waived his right to counsel.Page 6
Despite all of the ink that has been spilled in this case inanticipation of the resolution of this issue, the facts are actually verysimple. When did Hartsock make a knowing and intelligent waiver of hisright to counsel? Certainly not on March 4, 1992, when everyone agrees hetold the judge he intended to consult with an attorney. Can a finding ofwaiver be based on Hartsock's inaction between his March 4 arraignmentand the June 29 hearing date? Perhaps based on the passage of timecoupled with Hartsock's appearance in court on June 29 without counsel?The government has not cited any authority to that effect, although thereis state court authority regarding the waiver of a jury trial in Mainebased upon the failure to make a timely demand and there are some FifthAmendment cases suggesting that the right to remain silent can be waivedby conduct. I am not aware of any Sixth Amendment case standing for theproposition that a knowing and intelligent waiver of the right to counseltakes place by drawing inferences adverse to the defendant based upon hismere appearance and entry of a plea of guilty. See Estelle v. Smith451 U.S. 454, 471, n. 16 (1981) (waivers of the assistance of counselmust be voluntary and must also constitute a "`knowing and intelligentrelinquishment or abandonment of a known right or privilege,'" an inquirythat depends on that facts and circumstances of each case)(quotingEdwards v. Arizona, 451 U.S. 477, 482 (1981)). Does showing up for courtamount to a waiver of the right to counsel? Although I can appreciatethat Hartsock appears to have gone to the June 29 hearing fully intendingto forego the assistance of counsel, it is also evident that his decisionto do so was based on a mistaken belief as to the likely sentence as aconsequence of a domestic assault conviction, which was based on anassumption that it would be no greater than itPage 7had been for his prior OUI conviction. Both OUI and assault are Class Dcrimes under Maine law and he would have been told on his firstappearance that both charges carried the same maximum potential sentence.In my view, showing up at court without retaining an attorney does notrise to the level of a knowing, intelligent waiver of the right tocounsel when Hartsock had no understanding of the actual consequences ofa conviction until an assistant district attorney told him that thelikely sentence was sixty days in jail.
The United States does not contend that Hartsock somehow waived hisright to counsel by speaking with the assistant district attorney priorto entering his plea, nor could it. If anything, Hartsock's meeting withthe prosecutor complicates, rather than simplifies, the matter. GivenHartsock's limited knowledge of the legal system, he legitimatelybelieved that if he did not do as advised by the prosecutor, he wouldmost probably spend sixty days in jail. But the prosecutor's plea offerwas not what we understand as "advice of counsel." See Reed v. UnitedStates, 354 F.2d 227, 229 (5th Cir. 1965) (Griffin B. Bell, J.) ("One ofthe most precious applications of the Sixth Amendment may well be inaffording counsel to advise a defendant concerning whether he shouldenter a plea of guilty.").
The only remaining occurrence on which the Court might base a findingof waiver involves the plea colloquy that took place between Hartsock andJudge Clapp on June 29, 1992. But there is nothing in the record tosuggest that Hartsock was ever advised by Judge Clapp that his failure toretain an attorney did not preclude him from then seeking one,particularly in light of the exchange that transpired between Hartsock andthe prosecuting attorney that led to the plea agreement involving a jailsentence. This lack ofPage 8colloquy is significant because Hartsock did not consider he hadany option other than to plead guilty or risk an extended term ofimprisonment if he defended himself that day without representation.Based upon Hartsock's testimony and the surrounding circumstances, thejudge did not conduct any such inquiry and Hartsock never knowingly gaveup his right to counsel on June 29.
McSweyn's affidavit (Docket No. 22) and testimony at the hearing onthis motion corroborate Hartsock's position that he never waived counselbefore tendering his guilty plea and, in fact, he did not know that hestill had the right to consult with his own private defense attorney.While McSweyn remembers that the March 4 tape contained a detailedquestion and answer about the right to counsel followed by the judge'sadmonition that Hartsock should contact counsel promptly, hisrecollection of the June 29 tape contains no such specificity. In fact,McSweyn testified that he cannot remember the judge's question thatprompted Hartsock's response "that he had received advice from an attorneybut that he does not have one representing him although he previouslyindicated he would." (McSweyn Aff., Docket No. 22.) Thus it appearsunlikely that Judge Clapp followed his routine procedure of reminding thedefendant of his right to counsel and obtaining a written waiver of thatright before he accepted the guilty plea in this instance. (See ClappDep. at 18-19.) The lack of any such colloquy between the judge andHartsock underscores the validity of Hartsock's position that he neverwaived counsel when pleading guilty on June 29, 1992, because he did notknow that he retained to right to seek the advice of his own counsel.
Hartsock did not possess a good grasp of how the legal system works.His sole prior experience with a lawyer, the one he hired to handle hisdivorce, resulted in thePage 9court process being handled by the other side's counsel. After speakingwith the assistant district attorney, he quite legitimately believed thathe was indeed between the proverbial "rock and hard place." If he did notaccede to the plea offer proposed by the assistant district attorney, heran what appeared to him to be a real risk of serving a much longer jailsentence and paying a much higher fine. Allowing the advice of the "otherside's" attorney to carry the day corresponded with Hartsock's priorexperience of how court procedures work. Thus, his testimony that hepleaded guilty because it was the only alternative is entirely credible tome.
In order to prevail on this motion Hartsock must prove that he actuallydid not knowingly waive the right to have an attorney's advice. Provingthe existence of a negative puts any litigant in any unenviable position.Yet, even assuming that Hartsock is held to highest burden of persuasion,I see no reason in this instance to doubt his testimony that he did notknowingly give up the right to independent advice of his own counselbefore pleading guilty to the charge. He had no idea that he retainedsuch a right in these circumstances.
The First Circuit has directed that a determination regarding whether adefendant has waived his right to counsel must be made in a non-formulaicmanner with the trial judge giving close attention to the contextualinquiry in order to determine if there has been a legitimate waiver.See, e.g., Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir. 1976).4When considering the question of waiver of counsel in cases involving aguilty plea where no waiver inquiry appears on the record, this courtmust then look to "`the particular facts and circumstances surroundingthat case, including the background,Page 10experience and conduct of the accused.'" United States v. Kimmel,672 F.2d 720, 722 (9th Cir. 1982) (quoting Cooley v. United States,501 F.2d 1249, 1252 (9th Cir. 1974)).5 The reason there can be nosimple formula applied to the case is that the test concerns what thedefendant understood rather than what the court said. Id. In this caseHartsock has persuaded me that he did not understand the dangers ofself-representation Nor did he understand that on June 29, 1992, afterspeaking with the assistant district attorney, he still had the right toconsult with his own attorney before changing his plea to guilty.Hartsock has persuaded me that he did not knowingly and intelligentlywaive his right to counsel before pleading guilty to this charge.
Based upon the foregoing I recommend that the court rule that the June29, 1992, conviction offered by the United States in support of thisindictment be ruled inadmissible because Willard Hartsock has proven thathe did not knowingly and intelligently waive his right to counsel at thetime he entered his plea of guilty.
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.Page 11
1. The State court docket entries do not indicate who presided atthe arraignment, although Judge Clapp is clearly docketed as the judgewho accepted the guilty plea some months later. Furthermore, AgentMcSweyn testified that he listened to the tape of the arraignment andthat Judge Clapp presided. Additionally, Judge Clapp testified at hisdeposition that a check of the clerk's other records revealed that he hadbeen presiding on March 4, 1992, in Skowhegan. (Clapp Dep. at 6).
2. The tape itself, identified as tape No. 2045, has since beendestroyed in the normal course of document destruction of state courtrecords. Likewise, tape number 2098, recording the June 29, 1992, changeof plea, has been destroyed. Prior to its destruction Agent McSweyn alsolistened to that tape.
3. I admit that this inference is based not only upon Judge Clapp'sdeposition, but also my own personal experience as a Maine District Courtjudge during the period from 1985-1990, a position that includedpresiding at the Skowhegan courthouse. 1 believe that the state computerdocketing system in use at that time would automatically generate,simultaneously, the prompts for the four docket entries that appear onMarch 4, 1992. (See Def.'s Ex. No. 2.) The docket entry "sent" does notnecessarily mean mailed, United States Postage prepaid. As Judge Clappexplained, most of the thirty-three Maine District Courts did notroutinely mail jury trial requests to defendants appearing forarraignment, the postage costs being one consideration and the clericaleffort being another. No busy clerk's office, such as the SkowheganDistrict Court, would be likely to have time to mail jury trial requestson the same day that it was processing arraignments for defendants, withthe attendant clerical work of preparing bail bonds, fine receipts, andso forth.
4. Of course, this case is not about a waiver of counsel at trialand, therefore, the factors enumerated in cases such as United States v.Campbell, 874 F.2d 838, 845 (1st Cir. 1989), may have little relevance tothe determination.
5. This contextual approach to the waiver analysis is followed by morecourts than the First and the Ninth Circuit. Indeed, it is just such anapproach taken by the Supreme Court of Iowa in State v. Tovar,656 N.W.2d 112 (2003), a case in which the court concluded there was nota valid waiver of the right to counsel in an operating under theinfluence plea conviction used as a predicate offense. The United StatesSupreme Court has granted the State's petition for certiorari review, 124S.Ct. 44 (2003) (mem), and that decision may (or may not) illuminatedisputes of this ilk. Pending Counts Disposition 18:922G.F UNLAWFUL TRANSPORT OF FIREARMS, ETC.; POSSESSION OF FIREARM BY A PERSON CONVICTED OF DOMESTIC VIOLENCE (1) Highest Offense Level (Opening) Felony Terminated Counts Disposition None Highest Offense Level (Terminated) None Complaints Disposition NonePage 1