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Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:10-cr-00097-JEC-LTW-1.
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and HAIKALA,[*] District Judge.
HAIKALA, District Judge.
Jean-Daniel Perkins appeals his conviction and the 360-month sentence that the district court imposed after a jury, in Mr. Perkins's absence, found him guilty on all counts of a 37-count indictment concerning a credit card fraud scheme. Following his arrest, Mr. Perkins embarked upon a new scheme one designed to ensnarl the proceedings against him so that he might avoid trial altogether. Mr. Perkins rejected two court-appointed attorneys, attempted to hijack every hearing that he attended, and refused to participate in his own trial, threatening physical violence if the district judge tried to compel him to enter the courtroom. On appeal, through appointed counsel, Mr. Perkins raises multiple challenges to the conviction and to his sentence. We affirm.
In June 2010, a grand jury indicted Mr. Perkins on two counts of conspiracy to commit bank fraud, 28 counts of bank fraud, four counts relating to counterfeit access devices, and one count of aggravated identity theft. The indictments pertain to a complex credit card fraud scheme that Mr. Perkins operated for approximately 14 months. Mr. Perkins completed thousands of fraudulent transactions that netted more than $4 million in ill-gotten gains.
Shortly after his arrest on these charges, Mr. Perkins appeared before a magistrate judge. The magistrate judge advised Mr. Perkins of his constitutional rights, including his right to counsel. The magistrate judge stated: " You may hire your own attorney or, in the event you are not able to afford an attorney, the court may appoint someone to represent you at no cost to you." The magistrate judge and Mr. Perkins then had the following exchange:
[The Court]: It is my understanding that you would like the Court to appoint someone to represent you and that you are not able to afford an attorney; is that correct?
The Defendant: Yes, ma'am.
The Court: To that extent you have completed a financial affidavit. Do you either swear or affirm that the information provided in the affidavit is true to the best of your knowledge?
The Defendant: Yes, ma'am.
The magistrate judge found that Mr. Perkins could not afford an attorney, so she
appointed a lawyer to represent Mr. Perkins.
Shortly after his appointment, Mr. Perkins's attorney filed a motion to suppress evidence that authorities uncovered during two separate searches. Mr. Perkins's attorney also filed a motion to suppress an out-of-court identification. A few months later, Mr. Perkins's attorney filed a supplement to the motion to suppress.
While those evidentiary motions were pending, Mr. Perkins's attorney filed a motion to withdraw. A magistrate judge heard the motion. Mr. Perkins and his attorney attended the hearing. The magistrate judge asked Mr. Perkins to explain what was going on. Mr. Perkins responded: " I haven't really consented to anything. I haven't gave any permission to do anything . . . ." After hearing a description of the work that Mr. Perkins's attorney had done and the challenges that Mr. Perkins's attorney faced in representing Mr. Perkins, the magistrate judge asked Mr. Perkins if he had anything to add. Mr. Perkins replied: " I just wanted to get on the record that I never consented to anything, period, anything at all." After Mr. Perkins spoke about a few particular concerns, the magistrate judge remarked, " I am not sure what you are informing the Court or how you are expressing your desire to proceed in the case." Mr. Perkins replied, " I'm not saying anything at all as far as I'm just making a statement . . . [L]ike I said, I'm not consenting to anything. I'm not saying anything." The magistrate judge found that the attorney-client relationship had been severed, and she appointed a new attorney to represent Mr. Perkins.
Mr. Perkins's second attorney represented him at an evidentiary hearing on the pending motions to suppress. After the hearing, the new attorney filed a post-hearing brief in support of the motions.
A little more than four months after the magistrate judge appointed Mr. Perkins's second attorney, Mr. Perkins filed a " Revocat[i]on of Power of Attorney." In that document, Mr. Perkins stated that he " revoke[d], cancel[ed], and annul[led]" his second attorney's representation. Mr. Perkins's second attorney then filed a motion to withdraw. A magistrate judge held a hearing on the motion and had the following exchange with Mr. Perkins:
The Court: Do you want Mr. Spencer to withdraw as your attorney?
[Mr. Perkins]: For and on the order the record I have never requested any administrative (unintelligible) whatsoever from this court. I have never requested any representation. . . . I have never accepted the benefits as they are under the Criminal Justice Act of 1964. I am not an indigent, a ward . . . .
The magistrate judge advised Mr. Perkins that he had " the constitutional right to effective assistance of counsel" and explained to Mr. Perkins that if he wished " to proceed without an attorney," he would " have to waive or give up [his] right to effective assistance of counsel." The magistrate judge asked: " Do you want to waive or give up your right to effective assistance of --." Mr. Perkins interrupted and interjected: " I do not accept your offer." Again, the magistrate judge asked Mr. Perkins: " [D]o you want to waive or give up your right to effective assistance of counsel?" Mr. Perkins stated: " I do not accept any of your rights. . . . How can I waive something that I have never accepted and that does not apply to me?" The magistrate judge concluded: " I have asked the defendant whether he will waive his right to effective assistance of counsel. He has not given me a responsive answer and so my decision is that Mr. Spencer will continue." Mr. Perkins stated: " I do not accept your order."
Shortly afterwards, the district judge denied Mr. Perkins's motions to suppress and set Mr. Perkins's case for trial on June 20, 2011. Within one week of the trial setting, Mr. Perkins's attorney renewed his motion to withdraw. He stated: " Mr. Perkins ha[s] made it clear that he does not want the undersigned as counsel," and " Mr. Perkins never wanted counsel appointed to him under the Criminal Justice Act." The lawyer attached to his motion an affidavit in which Mr. Perkins directed the attorney to " cease and desist all action for and on behalf of Jean-Daniel Perkins."
The district court took up the renewed motion to withdraw at Mr. Perkins's pretrial conference. After reviewing a collection of pro se filings that Mr. Perkins submitted, the court asked: " Mr. Perkins, are you trying to indicate that you want to waive your right to counsel?" Mr. Perkins would not respond to the district judge's questions. Instead, he repeatedly asked for the judge's name. He questioned whether the judge had " proof of claim" of his " obligation to have representation," he asked whether the district court had a " contract" with him, and he ordered the district judge to dismiss the charges in the indictment. With respect to his right to appointed counsel, Mr. Perkins stated:
For and on the record, are you aware of the fact that I've never accepted representation? Can you provide evidentiary proof that I have accepted representation? Is there anything on the record that will show that I accepted representation? Is there any contract? Is there any CJA 23 or anything of record that will show that I've ever accepted representation?
The district judge asked Mr. Perkins how he intended to defend himself at trial. Mr. Perkins replied: " What if I don't defend? What if I'm not a defendant? Where is your defendant? How can you have a defendant if I'm not here to defend anything?"
The district court asked Mr. Perkins's attorney for his thoughts on the motion to withdraw. Counsel stated:
Mr. Perkins' position as I understand it, Judge, is that when he was arrested and brought to this Court, he never asked to be appointed counsel. That he never said on any record, paper, document that he needed counsel, and that therefore any appointment of counsel is invalid. . . . I will say that he's never made threats or anything like that, but he has indicated that my representation is in fact tortious.
The district judge explained to Mr. Perkins that he had two choices: he could represent himself or his court-appointed attorney could represent him. Because Mr. Perkins did not clearly express a desire to represent himself and adhere to the rules of the district court, the court denied the motion to withdraw. The district judge observed:
Were I looking at this for the first time the statements made by the defendant today and his repetitive documents, I would think we were dealing with someone who is delusional who needed to be sent to Butner for a mental examination . . . But I know that's not what we're dealing with . . . This is definitely studied, definitely contrived, definitely manipulative. So I don't see any reason to send this defendant off for a competency examination.
The district court added that a criminal defendant who wishes to represent himself must be willing to comply with court procedure and court orders, and Mr. Perkins, in word and deed, demonstrated that he intended to obstruct court proceedings rather than comply with court rules. As if to confirm the district court's observation,
when the district judge began to talk about the date on which trial would begin, Mr. Perkins interjected: " You're not going to tell me anything. You don't control me."
On the first day of trial, Mr. Perkins picked up where he left off at the pretrial conference. He refused to come out of his holding cell. Mr. Perkins threatened that if the marshals tried to force him to go to the courtroom, he would go " kicking and screaming." The district judge discussed at length with a courtroom deputy, Mr. Perkins's lawyer, and counsel for the government whether to have the marshals bring Mr. Perkins to the courtroom. The court considered alternative audio and video arrangements that would enable Mr. Perkins to observe the trial if he was not willing to attend. After many failed attempts to persuade Mr. Perkins to enter the courtroom so that the court could begin jury selection, the district judge met with Mr. Perkins in an interview room in the holding area. Counsel for the parties and a court reporter accompanied the district judge to the interview room. ...