United States v. James David Kimmel

672 F.2d 720 UNITED STATES of America, Plaintiff-Appellee, v. James David KIMMEL, Defendant-Appellant. No. 80-1562. United States Court of Appeals, Ninth Circuit. Submitted Aug. 12, 1981. Decided March 4, 1982. As Amended March 29 and April 5, 1982. Gordon M. Bronson, Honolulu, Hawaii, for defendant-appellant. Stephen D. Tom, Asst. U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before SKELTON, * Senior Judge, CHOY and REINHARDT, Circuit Judges. CHOY, Circuit Judge: 1 James David Kimmel appeals his convictions for distributing and conspiring to distribute LSD in violation of 21 U.S.C. §§ 841 (a)(1) and 846. We reach only two issues at this stage of the appeal. First, we hold that Kimmel did not receive the benefits of his constitutional right to legal representation at his trial. Second, we hold that the record does not show that he made a knowing and intelligent waiver of his right to counsel. Because the district court may be able to supply additional information about Kimmel's understanding at the time of the waiver, we remand to allow the district court to supplement the record. I. The…

James David Kimmel appeals his convictions for distributing and conspiring to distribute LSD in violation of 21 U.S.C. §§ 841 (a)(1) and 846. We reach only two issues at this stage of the appeal. First, we hold that Kimmel did not receive the benefits of his constitutional right to legal representation at his trial. Second, we hold that the record does not show that he made a knowing and intelligent waiver of his right to counsel. Because the district court may be able to supply additional information about Kimmel’s understanding at the time of the waiver, we remand to allow the district court to supplement the record.

I. The Need for a Waiver

A court-appointed advisor assisted Kimmel in his pro se defense. The role of an advisor is to “merely advise or to give the accused meaningful technical assistance in presentation of the defense and the saving of the record for appeal.” United States v. Coupez, 603 F.2d 1347, 1351 (9th Cir. 1979). Attorney Gordon Bronson, the advisor in this case, performed more than these traditional functions. In addition to counseling Kimmel on technical points, he actively argued before the district court and, by the end of the proceedings, emerged as…

concurring in part and dissenting in part:

I concur in the opinion of the majority insofar as it holds (1) that Kimmel did not receive the benefit of his constitutional right to legal representation at his trial, (2) that under the circumstances of this case a knowing and intelligent waiver 1 of the right to counsel was required, and (3) that the record does not show that Kimmel made a knowing and intelligent waiver of that right prior to trial. I dissent from that portion of the opinion which orders a limited remand to allow the district court to supplement the record with “further details” of Kimmel’s background, experience, and conduct.

In this case, the majority employs a limited remand procedure which lacks the support of precedent and reason, and which directly conflicts with the uniform and unquestioned practice in this circuit. When the record on appeal from a conviction in the district court fails to show that the defendant made a knowing and intelligent waiver of the right to counsel before proceeding to trial, our practice has been to reverse the conviction and order a new trial. The majority departs from our heretofore unquestioned procedure without discussing or…