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United States v. Thompson

December 3, 2009


Appeal from the United States District Court for the Central District of California Audrey B. Collins, Chief District Judge, Presiding D.C. No. CR-03-00847-ABC-02.

The opinion of the court was delivered by: Milan D. Smith, Jr., Circuit Judge



Argued and Submitted November 3, 2009 -- Pasadena, California

Before: Thomas G. Nelson, Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges.


Following a jury trial, Defendant-Appellant Bobby Lee Thompson (Thompson) was convicted of seven counts related to his possession, distribution, and manufacture of phencycli-dine (PCP), and one count of being a felon in possession of a firearm. Thompson appeals the district court's order permitting him to represent himself at trial, and the district court's subsequent denial of Thompson's request for a continuance, and reappointment of counsel. We affirm.*fn1


Thompson was indicted in August 2003. On August 26, he appeared before a magistrate judge who appointed counsel to represent him. Thompson's appointed counsel filed two applications to secure Thompson's release on bail, the second of which was granted on October 23, 2003. After the district court granted Thompson numerous continuances of the trial date, it set trial for March 1, 2005.

On February 28, 2005, both Thompson and his counsel were present at what would become the first of many "final" pretrial conferences. However, the following morning Thompson failed to appear for trial. His counsel reported to the court that she had received a telephone call that morning from Thompson's wife, who said Thompson had been brought to a mental health center at 2:30 in the morning because he was "acting very strange." Thompson was then transferred from the mental health center to BHC Alhambra Hospital, where he spent the next two weeks.

Following Thompson's discharge, the court appointed Dr. Saul Faerstein to conduct a psychiatric evaluation for the purpose of determining Thompson's competency to stand trial. Dr. Faerstein examined Thompson, interviewed Thompson's wife, and reviewed Thompson's hospital records. Dr. Faerstein concluded that Thompson was competent to stand trial, that Thompson had the mental capacity to understand the nature of the legal proceedings and charges against him and to cooperate with his counsel, and that Thompson had the mental capacity to understand all of his legal rights and to waive those rights, should he choose to do so.

In light of Dr. Faerstein's evaluation, the court held a conference on May 9, 2005. At that hearing, the parties agreed with Dr. Faerstein's conclusion that Thompson was competent to stand trial, and the court set a new trial date for May 31, 2005. The court also scheduled another pretrial conference to take place May 23.

Despite appearing along with counsel at the final pretrial conference on May 23, Thompson again failed to appear for trial on May 31. Thompson's counsel explained that she had received a telephone call the day before, informing her that Thompson had again been admitted to the hospital for psychiatric evaluation. In light of Thompson's failure to appear, the district court scheduled a status conference for June 2, 2005, at which time the district court would hear the government's request to remand Thompson.

On June 2, Thompson appeared in court. However, his counsel stated that Thompson was so severely medicated that she could not communicate with him and requested that he be remanded into custody so that his medication could be stabilized. Following an attempted colloquy with Thompson, the court concluded that Thompson was not ready to go to trial because he was not fit to assist in his defense. The court also noted the "strange coincidence" stemming from Thompson's faithful appearance at all pretrial conferences, followed by his failure to appear on the date set for trial. Turning to the remand issue, the court expressed its concern over remanding Thompson. It noted that it was not clear when Thompson would be ready for trial, but indicated that given Thompson's repeated failure to appear for trial, the court needed more information. The court determined that in order to have his medication stabilized and assure Thompson's appearance at trial, the proper course was to remand Thompson into custody and direct the Metropolitan Detention Center (MDC) to conduct an evaluation of Thompson's mental status. Thompson's counsel agreed with the court's assessment that remand was in Thompson's best interest. The court remanded Thompson and scheduled a status conference for June 14 so that it could reevaluate Thompson's mental health in light of MDC's report. The court also set July 12 as the new trial date.

On June 10, MDC issued a report concluding that Thompson's "behaviors and presentation are not consistent with any major mental illness or cognitive disorder, [but] rather they appeared more consistent with someone who was attempting to exaggerate or fabricate symptomology." Based on its preliminary diagnosis, MDC concluded that Thompson exhibited signs of malingering.

The district court addressed MDC's evaluation at the June 15 status conference. It determined that in light of that evaluation, and Thompson's failure to appear for trial, he posed a flight risk and was to remain in custody until the July 12 trial date. Following the court's remand order, Thompson moved to relieve his counsel. Finding that nothing in the record supported Thompson's position that there had been a lack of communication with counsel and that his request for new counsel was another attempt to further delay trial, the court denied the request. Finally, the court set a final pretrial conference for July 11.

On July 6, Thompson renewed his request for appointment of new counsel. The district court granted the request, adjourned the final pretrial conference to August 2, and scheduled a new trial date for August 9. Despite its earlier finding that Thompson was purposely delaying trial, the court continued to accommodate Thompson's requests for continuances. Thompson asked for two more continuances, which the court graciously granted, and once again adjourned the trial to October 4.

On September 30, the court conducted a hearing concerning Thompson's motion to suppress. After the court denied the suppression motion, Thompson complained about the performance of his newly appointed counsel. The court found, once again, that Thompson was attempting to delay trial. Based on that finding, the court denied Thompson's request to relieve counsel. Following a brief recess in which the court instructed Thompson and his counsel to confer, Thompson's counsel told the court that Thompson was prepared to go to trial on October 4.

At the final pretrial conference on October 3, Thompson renewed his request to relieve counsel, again citing a lack of communication. The court engaged in a lengthy inquiry outside the government's presence in which it directed questions to both Thompson and his counsel. Following that exchange, the court once again denied Thompson's request.

The morning of trial, Thompson advised the court that he wished to represent himself and would need additional time to prepare for trial. The court conducted a Faretta hearing and strongly urged Thompson to reconsider defending himself, noting multiple times that Thompson was unfamiliar with the law or court procedure. However, Thompson insisted that he would be able to learn as long as he had a "few more days to study." Thompson also rejected the court's offer for his current counsel to act as standby counsel, and informed the court that his family was attempting to retain an attorney to help him. When the court asked Thompson to clarify what role this other attorney would play, Thompson stated, "It's my intention to represent myself, and that was just - you asked me would I prefer to have [current counsel] as stand-by, and I said - I said no, and I just mentioned that my family was inquiring about having someone help me." Though the court ...

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