United States v. Kimmel

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 the dominant spokesman for the defense. He did not, however, assume all the duties of a full-fledged counsel. For example, Kimmel formulated and presented his major defense that the United States courts have no jurisdiction over him because he is a citizen of the sovereign nation of Hawaii.

The district court has the authority to allow, if the accused desires, a hybrid form of representation in which the accused assumes some of the lawyer’s functions as Kimmel did. See, e.g., United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). Although we question the efficiency of hybrid arrangements, the district court suffers the major inconvenience and can usually best weigh the costs and benefits.

The Government argues that when the accused and his lawyer join forces to manage and present the defense, the accused receives all the benefits of representation by a lawyer and, consequently, there is no need for a waiver of counsel. We disagree. When the accused assumes functions that are at the core of the lawyer’s traditional role, as Kimmel did, he will often undermine his own defense. Because he has a constitutional right to have his lawyer perform core functions, he must knowingly and intelligently waive that right. This holding is a logical extension of the well-established rule that a waiver is required despite the presence of a court-appointed advisor. See, e.g., United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973).

II. The Adequacy of the Waiver

A waiver of counsel cannot be knowing and intelligent unless the accused appreciates the possible consequences of mishandling these core functions and the lawyer’s superior ability to perform them. Our task is to determine from the record whether the accused understood these risks when he elected to represent himself. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). We prefer trial courts to simplify our review by explaining the risks of self-representation to the accused. However, because the test concerns what the accused understood rather than what the court said or understood, explanations are not required. Sec, e.g., Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir. 1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975).

The district court did not explain on the record the risks of self-representation to Kimmel. In the absence of a specific waiver inquiry, we must consult “the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” Id. at 1252. The record reveals that Kimmel was well-educated and literate. He also had been prosecuted several times before and, in at least one case, had represented himself without the assistance of an attorney. While this background information suggests that Kimmel appreciated the risks of self-representation, we need more details to conclude that he sufficiently understood them. For example, it would be helpful to know whether Kimmel was informed about these risks when he represented himself previously. The existing record does not supply these details or other evidence that adequately supports a finding of an intelligent waiver.

When the record suggests that there is additional evidence available about the adequacy of a waiver, we may allow the trial court to supplement the record. Rhinehart v. Gunn, 661 F.2d 738, 739-40 (9th Cir. 1981) (concerning a state prisoner’s petition for habeas corpus); Davis v. Morris, 657 F.2d 1104, 1106 (9th Cir. 1981) (same). In United States v. Tompkins, 623 F.2d 824, 828-29 (2d Cir. 1980), the Second Circuit Court of Appeals instructed a federal district court to supplement the record, explaining:

Although the record does not convince us that Tompkins unequivocally waived his right to counsel, we are reluctant to reverse. At oral argument, the Government raised an important question concerning Tompki'n’s past experience in representing himself in criminal proceedings. Since that information may shed new light on Tompkin’s behavior during the instant prosecution, we remand this case to the district court for the limited purpose of determining whether Tompkins unequivocally elected to waive his right to counsel, or simply attempted to manipulate the court to create a basis for reversal. We recognize that a direct criminal appeal is rarely remanded to the trial court for additional fact-finding. Nonetheless, where, as here, the record is silent on so crucial a question of fact as the intent to waive counsel, no other disposition is possible.

For reasons similar to those in Tompkins, we elect this procedure here to enable us to make a more informed judgment about Kimmel’s waiver and, if sufficient information results, avoid the costs of a new trial.

This case is the first in which we have used a limited remand to supplement a record that does not show a knowing and intelligent waiver of counsel. In a number of similar cases, this court simply reversed the conviction and remanded for a new trial. United States v. Crowhurst, 596 F.2d 389, 391 (9th Cir. 1979); United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978); United States v. Gillings, 568 F.2d 1307, 1310 (9th Cir.), cert. denied, 436 U.S. 919, 98 S.Ct. 2267, 56 L.Ed.2d 760 (1978); United States v. Dujanovic, 486 F.2d 182, 188 (9th Cir. 1973). These cases do not foreclose the use of a limited remand to supplement the record. Given that the limited remand is a prudential device which until recently has been used quite sparingly in this circuit, we are not surprised that the court has not had occasion previously to apply it in this context. We believe that the use of a limited remand to supplement the record is the best course of action in this case because the record suggests that additional relevant information is available.

III. Order

We remand this case for the limited purpose of affording the district court the opportunity to supplement the record, using whatever procedure it deems most efficient, on whether Kimmel made a knowing and intelligent waiver. This court retains jurisdiction of the appeal.