United States v. C. Scott Flewitt, and B. Todd Flewitt

874 F.2d 669 UNITED STATES of America, Plaintiff-Appellee, v. C. Scott FLEWITT, and B. Todd Flewitt, Defendants-Appellants. No. 86-5018. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 6, 1988. Decided May 10, 1989. Alan M. Caplan, Bushnell, Caplan & Fielding, San Francisco, Cal., for defendants-appellants. Anita S. Dymant, Asst. U.S. Atty., Major Frauds Unit, Crim. Div., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before HUG, BRUNETTI and KOZINSKI, Circuit Judges. HUG, Circuit Judge: 1 Scott Flewitt and his sons, Todd Flewitt and Michael Flewitt, were indicted for 12 counts of mail fraud in violation of 18 U.S.C. Sec. 1341 . Scott Flewitt was convicted of 11 counts, Todd Flewitt of 7 counts, and Michael Flewitt was acquitted. The principal issue in this appeal is whether the constitutional rights of Scott and Todd Flewitt to self-representation were denied. We hold that they were and therefore reverse and remand for a new trial. 2 The appellants were doing business under the name of Concept Marketing International ("CMI"). This was a multilevel marketing company…

dissenting:

The majority opinion holds that the district court judge violated Scott and Todd Flewitt’s constitutional right to self-representation when he revoked their pro se status right before trial. The record shows that the Flewitts had equivocally asserted their right to proceed pro se and used that right to disrupt and delay their trial which was a sufficient reason to terminate their self-representation.

I.

STANDARD OF REVIEW

The factual findings of the district court upon which it based its decision to revoke pro se status will not be reversed unless clearly erroneous. United States v. Smith, 780 F.2d 810, 811 (9th Cir.1986); Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir.1982).

II.

RIGHT TO SELF REPRESENTATION

For self-representation, a defendant must (1) “knowingly and intelligently” forego counsel, and (2) request “clearly and unequivocally” to proceed pro se. Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525, 2541 ; United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982); United States v. Kennedy, 564 F.2d 1329, 1340 (9th Cir.1977), cer t. denied, 435 U.S. 944 , 98 S.Ct. 1526 , 55 L.Ed.2d 541 (demand to proceed pro se must be unequivocal).

A. Waiver…

Scott Flewitt and his sons, Todd Flewitt and Michael Flewitt, were indicted for 12 counts of mail fraud in violation of 18 U.S.C. § 1341 . Scott Flewitt was convicted of 11 counts, Todd Flewitt of 7 counts, and Michael Flewitt was acquitted. The principal issue in this appeal is whether the constitutional rights of Scott and Todd Flewitt to self-representation were denied. We hold that they were and therefore reverse and remand for a new trial.

The appellants were doing business under the name of Concept Marketing International (“CMI”). This was a multilevel marketing company designed to sell a variety of household products. A prospective investor paid a membership fee. There were two ways that the investor could profit from involvement in CMI. He could receive commissions from the sales of products; he could also receive bonus payments from other investors he brought into the company and additional bonuses from investors brought in by those he had recruited.

At the initial arraignment, appellants were both represented by the same retained counsel. Thereafter, the retained counsel was relieved and separate counsel were appointed for each defendant. A superseding indictment,…