United States v. Jack Aponte

591 F.2d 1247 UNITED STATES of America, Appellee, v. Jack APONTE, Appellant. No. 77-2735. United States Court of Appeals, Ninth Circuit. Sept. 7, 1978. John W. Lovell (argued), Tucson, Ariz., for appellant. John G. Hawkins, Asst. U. S. Atty. (argued), Phoenix, Ariz., for appellee. Appeal from the United States District Court for the District of Arizona. Before ELY and GOODWIN, Circuit Judges, and ENRIGHT * , District judge. GOODWIN, Circuit Judge: 1 Jack Aponte was convicted by a jury of violating 18 U.S.C. § 3150 (jumping bail). On appeal, he asserts a variety of irregularities, but the only two issues that require discussion are whether the trial judge erred in finding Aponte competent to stand trial and whether the judge improperly allowed Aponte to represent himself without an effective waiver of his right to counsel. 2 Some three years after Aponte had failed to appear for sentencing in the District of Arizona upon a conviction arising out of his possession of a controlled substance, he was arrested in California and returned to Arizona for further proceedings. In due course, he was indicted for the bail violation. The court appointed counsel from the federal defender's…

Jack Aponte was convicted by a jury of violating 18 U.S.C. § 3150 (jumping bail). On appeal, he asserts a variety of irregularities, but the only two issues that require discussion are whether the trial judge erred in finding Aponte competent to stand trial and whether the judge improperly allowed Aponte to represent himself without an effective waiver of his right to counsel.

Some three years after Aponte had failed to appear for sentencing in the District of Arizona upon a conviction arising out of his possession of a controlled substance, he was arrested in California and returned to Arizona for further proceedings. In due course, he was indicted for the bail violation. The court appointed counsel from the federal defender’s office. Counsel promptly filed, pursuant to Fed.R.Crim.P. 12.2, notice of intent to defend on the ground of insanity or mental defect.

Counsel next filed a notice asserting that Aponte was not mentally competent to stand trial. At a hearing called to determine Aponte’s competence to stand trial, Aponte brushed aside his appointed counsel and embarked upon a colloquy with the court.

Aponte asserted first that the federal defender was hostile to him.…

dissenting:

I respectfully dissent.

This case presents the classic trial court dilemma involving pro se representation. The trial judge was faced with the difficult decision of accepting the defendant’s waiver and being reversed under Dujanovic or rejecting the waiver and being reversed under Faretta. In this case, the trial court *1251 accepted the firm, unequivocal demand of the defendant after patiently hearing him out, both in prior pretrial proceedings held months earlier and before and throughout the trial itself. He continued the appointment of trial counsel, who appeared at every proceeding, actively participated in the examination of witnesses, initiated critical motions and rigorously advanced the defendant’s position at an extended competency hearing during the course of the trial itself. The defendant had whatever advantages accruing to his interest under Faretta together with all the advantages appointed counsel could bring to his case. A complete review of the record indicates he had a full and fair trial; that he was treated with patience and courtesy by the trial judge throughout the proceedings and that, in effect, he had the best of both worlds. In my opinion,…