17 November 2000

See related files: http://jya.com/cejfiles.htm


It is my hope that someone might find the time and energy to distribute this to Internet legal forums and to attorneys throughout the Ninth District, especially Seattle-Tacoma.

Fuck These Morons (TM) have shit all over Constitutional Law and I want to rub their faces in it. It will no doubt piss Them (TM) off to the Max, but I want to stir things up before the Appeals hearing, which should be in the next couple of weeks, if granted.

It's Crunch Time, and I want to shine as much light as possible on what Fuck These Morons (TM) are doing.

Thanks,

CJ


Subject: ATTN: New 9th Circuit Precedents

REF:

USA v. CARL EDWARD JOHNSON
No. 99-30196
D.C. No. CR-98-05393-RJB
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted September 13, 2000
Seattle, Washington

Before: SCHROEDER, BEEZER and HAWKINS, Circuit Judges
United States Court of Appeals
for the Ninth Circuit

FILED: Oct. 04, 2000
Cathy A. Caterson, Clerk
U.S. Court of Appeals

_______________________________________________________________

The 9th Circuit Court of Appeals has broken new ground in this case, negating the standards established in Godinez v. Moran, 509 U.S. 389, 399, 113 S. Ct. 2680, 125 L.Ed.2d 321 (1993)(equating competency to waive counsel with competency to stand trial) ruling that the Court may deny a competent defendant the Constitutional right to self-representation and place control of the defense in the hands of a Court-appointed attorney, against the defendant's wishes.

The 9th Circuit Court also ruled that -- contrary to Martinez v. Court of Appeal of California, ---U.S.---, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000); Lopez v. Thompson, 202 F.3d 1110 (9th Cir. 2000) -- that the lack of technical legal competence on the part of the defendant constitutes a legitimate ground for denying the right of self-representation, allowing the presiding judge to rule the defendant "not competent to undergo self-representation in a case of this seriousness."

Also, the Court ruled that -- contrary to McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); United States v. Sarno, 73 F.3d 1470, 1491, (9th Circ. 1995), cert. denied, 518, U.S. 1020, 116 S.Ct. 255, 135 L.Ed.2d 1073 (1996) -- a defendant found competent to stand trial may be denied the right to control all aspects of his trial court proceedings.

Further, the 9th Circuit Court of Appeals ruled that there is no longer any due process requirement for the Court to conduct a full Faretta canvas to determine competency -- Pate v. Robinson, 383 U.S. 375, 385, 865 S.Ct. 836, 15 L.Ed.2d 815 (1966) -- upon a defendant requesting self-representation. This, in spite of the presiding Judge stating, in regard to the defendant's mental status, "I don't have real information on that that is reliable ... It is not clear to the Court." ER 47-48.

In toto, the 9th Circuit Court of Appeals' rulings in this case seem to indicate that the 9th Circuit, in the future, will be giving its presiding judges a wide latitude in allowing the preferences of the Court to take precedence over the desires of the defendant -- denying the Constitutional autonomy of the defendant and putting control of the defense in the hands of a Court-forced attorney at the whim of the presiding judge.

Circuit judges Schroeder, Beezer and Hawkins appear to have ruled that due process is served by foregoing a sua ponte competency hearing and allowing the Court of Appeals, at a later date, to determine the defendant's standing -- under Faretta v. California, 422 U.S. 806, 835 (1975) -- based upon the trial record, in the absence of the defendant.

In light of prosecuting attorney Robb London's appraisal of one of the defendant's motions to the Court as, "The best pro-se motion I've ever seen by a defendant," it is clear that the Constitutional right to self-representation has -- in the 9th Circuit -- been effectively dismissed as a matter of particular importance.

Attorneys practicing in the 9th Circuit should be aware that the trail transcripts and appeal transcripts clearly show that the 9th Circuit no longer considers itself bound by the decisions in the foregoing cases, making it incumbent upon the attorney to properly prepare, accordingly, under the new guidelines.


Transcription and HTML by Cryptome.


Source: http://pacer.ca9.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=99-30196&puid=00974476153




General Docket
US Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 99-30196                          Filed: 6/28/99
Nsuit:    0
USA v. Johnson
Appeal from: Western District of Washington (Tacoma)

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Case type information:
     1) criminal
     2) Sentence & Conviction
     3)
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Lower court information:

     District: 0981-3 : CR-98-05393-RJB
     presiding judge: Robert J. Bryan, District Judge
     court reporter: Julaine Ryen, Off. Court Reporter
     Date Filed: 9/30/98
     Date order/judgment: 6/11/99
     Date NOA filed: 6/21/99
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Fee status: in forma pauperis

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Prior cases:
   None
Current cases:
   None

Docket as of October 26, 2000 11:24 pm               Page 1


99-30196 USA v. Johnson

UNITED STATES OF AMERICA          Floyd G. Short
     Plaintiff - Appellee         FAX 553-0882 (20
                                  (206) 533-7970
                                  Suite 5100
                                  [COR LD NTC aus]
                                  Robert London, Esq.
                                  FAX 553-0882 206
                                  206/553-7970
                                  Suite 5100
                                  [COR LD NTC aus]
                                  USSE - OFFICE OF THE U.S.
                                  ATTORNEY
                                  601 Union St.
                                  Seattle, WA 98101-3903

   v.

CARL EDWARD JOHNSON               Todd Maybrown, Esq.
     Defendant - Appellant        FAX 447-0839
                                  206/447-9681
                                  Suite 3020
                                  [COR LD NTC ret]
                                  ALLEN, HANSEN & MAYBROWN, P.S.
                                  One Union Square
                                  600 University St.
                                  Seattle, WA 98101

Docket as of October 26, 2000 11:24 pm               Page 2


99-30196 USA v. Johnson

UNITED STATES OF AMERICA

               Plaintiff - Appellee

   v.

CARL EDWARD JOHNSON

               Defendant - Appellant

Docket as of October 26, 2000 11:24 pm               Page 3


99-30196 USA v. Johnson

6/28/99          DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. Filed in
                 D.C. on 6/22/99; setting schedule as follows: transcript
                 shall be ordered by 7/13/99 for Carl Edward Johnson; Fee
                 payment due 7/12/99; transcript shall be filed by 8/12/99;
                 appellants' briefs, excerpts due by 9/21/99 for Carl Edward
                 Johnson; appellees' brief due 10/21/99 for USA; appellants'
                 reply brief due by 11/4/99 for Carl Edward Johnson. ( RT
                 required: y) ( Sentence imp 37 mos)  [99-30196] (kc)

7/26/99          Filed Appellant Carl Edward Johnson's motion to proceed in
                 forma pauperis;  withdraw as counsel [99-30196] served on
                 6/29/99 [MOATT) [99-30196] (ft)

9/23/99          Filed order (Appellate Commissioner) The court has received
                 aplt's motion to represent himself, and the motion of
                 aplt's retained counsel, Todd Maybrown, Esq., for leave to
                 withdraw. The court has directed the Appellate Commissioner
                 to conduct a hearing pursuant to FARETTA v. CALIFORNIA, to
                 confirm that appellant's request to proceed pro se is
                 knowing, intelligent and unequivocal. Accordingly, the
                 hearing will take place by video conference at 11:00 a.m.
                 PST, (1:00 p.m. CST) Tuesday, 9/28/99. Appellant Johnson
                 shall appear in Magistrate Jane Cooper-Hill's Hearing Room,
                 1st Floor, of the USDC for the Southern District of Texas,
                 521, Starr Street, Corpus Chirsti, TX 78401. Appellant's
                 counsel, Todd Maybrown, Esq., shall appear by phone. Aple's
                 counsel, Assistant AUSA, Atty Robb London, shall appear by
                 phone or shall file a statement that aple takes no position
                 on the issue of aplt's representation. if either counsel
                 wishes to participate by phone, that counsel shall notify
                 the Appellate Commissioner's office at 415-556-6220 as soon
                 as possible of the phoen number at which he can be reached.
                 AUSA Atty London shall make appropriate arrangements with
                 the U.S. Marshal's Service to produce aplt at the hearing.
                 The Clerk shall serve a copy of this order on the U.S.
                 Marshal's Service, 521 Starr St, Corpus Christi, TX 78401.
                 The Clerk also shall serve this order on aplt Carl E.
                 Johnson in addition to serving the order on the counsel of
                 record. The briefing schedule is held in abeyance pending
                 further order of the court.  (Faxed to counsel)  ()
                 [99-30196] (ft)

9/28/99          Faretta Hearing held before Appellate Commissioner on
                 09/28/99 at 11:00am in San Francisco . Present: Robert
                 London, Floyd G. Short, Todd Maybrown  Ct. Rep./Phone:
                 415-929-7134 Peppina Thompson .  Method: Video . Clerk AS
                 [99-30196] (jna)

9/30/99          Copy of letter received from U.S.D.C. Judge Bryan: Status
                 of appeal and is the District Court directed to do anything
                 at this time. (Sending copy of docketsheet) [99-30196] (ft)

Docket as of October 26, 2000 11:24 pm               Page 4


99-30196 USA v. Johnson

10/5/99          Filed order (Appellate Commissioner) ...(See Case file for
                 complete text) At the hearing, appellant Johnson withdrew
                 his request to represent himself on appeal, and requested
                 that counsel Maybrown be appointed to represent him on
                 appeal.  Counsel Maybrown concurred and, accordingly, the
                 earlier-filed motion for leave to withdraw as counsel for
                 appellant is DENIED.  Counsel Maybrown is appointed to
                 represent appellant Johnson.  The motion to proceed in
                 forma pauperis on appeal is GRANTED. Appellant shall
                 disignate the reporter's trancript by October 8, 1999. The
                 trancript is due November 8, 1999. Appellant's opening
                 brief and exerpts of record are due January 7, 2000;
                 appellee's brief is due February 7, 2000; the optional
                 reply brief is due 14 days after service of the appellee's
                 brief. [3721462-1] [3721462-2]  ( )  [99-30196] (kc)

11/8/99          Copy of letter received from Carl Edward Johnson: Status of
                 results of the Faretta hearing. [99-30196] (ft)

12/27/99         Filed motion and deputy clerk order :(Deputy Clerk: jlc)
                 Court Reporter Julaine V. Ryen's motion for an extension of
                 time to file the transcript is granted. The rt is due
                 1/18/00. This order waives the mandatory fee reduction
                 provided that the transcripts are filed within the time
                 allowed in this order. The briefing schedule is as follows:
                 the opening brief is due 2/28/00, the answering brief is
                 due 3/29/00. A copy of this order shall be provided to the
                 court reporter at the dc.  (  Motion recvd 12/17/99)
                 [99-30196] (ft)

1/28/00          Filed certificate of record on appeal; RT filed in DC
                 1/18/00. [99-30196] (hj)

3/3/00           Filed original and 15 copies Appellant Carl Edward Johnson
                 opening brief  ( Informal: no) 30 pages and five excerpts
                 of record in 1 volume; served on 2/28/00.  [99-30196] (hj)

3/21/00          14 day oral extension by phone of time to file Appellee
                 USA's brief.  [99-30196] appellees' brief due 4/12/00;
                 appellants' reply brief due 14 days . . . (jlc)

4/18/00          Filed original and 15 copies of Appellee USA's answering
                 brief of 45 pages and 5 supplemental excerpts of record in 1
                 volume; served on 4/12/00. (***SUPPLEMENTAL EXCERPTS TO BE
                 FILED UNDER SEAL PER 4/21/00 ORDER***) [99-30196] (ca)

4/18/00          Filed Appellee's pre-sentencing report UNDER SEAL.
                 (RECORDS)  [99-30196] (ca)

4/21/00          Filed motion and deputy clerk order :(Deputy Clerk: cag)
                 The Govt's motion to seal is granted. Volume 1 of the
                 supplemental excerpts of record shall be filed and
                 maintained under seal. [3894811-1]  (  Motion recvd
                 4/18/00) [99-30196] (lp)

Docket as of October 26, 2000 11:24 pm               Page 5


99-30196 USA v. Johnson

4/26/00          14 day oral extension by phone of time to file Appellant
                 Carl Edward Johnson's reply brief.  [99-30196] appellants'
                 reply brief due 5/15/00; (jlc)

5/1/00           Received Appellant Carl Edward Johnson  letter dated
                 4/26/00 re: Extension of time granted to file a reply
                 brief.    [99-30196] (kc)

5/17/00          Received orig. 15 copies Carl Edward Johnson's reply brief
                 (Informal: n) of 12 pages; served on 5/15/00  deficient y:
                 (footnotes are not correct typeface) Notified counsel.
                 [99-30196] (je)

5/26/00          Received Appellant Carl Edward Johnson's satisfaction of
                 (major) brief deficiency, served on 5/24/00 [99-30196] (je)

5/26/00          Filed original and 15 copies Carl Edward Johnson reply
                 brief,  ( Informal: n ) 12 pages; served on 5/24/00
                 [99-30196] (je)

6/28/00          Calendar check performed [99-30196] (th)

7/10/00          Calendar materials being prepared. [99-30196]  [99-30196]
                 (th)

7/13/00          CALENDARED: Seattle Sept 13 2000 9:00 a.m.    Courtroom
                 815, US Courthouse [99-30196] (th)

9/13/00          ARGUED AND SUBMITTED TO Mary M. SCHROEDER, Robert R.
                 BEEZER, Michael D. HAWKINS [99-30196] (kym)

10/4/00          FILED MEMORANDUM DISPOSITION: AFFIRMED ( Terminated on the
                 Merits after Oral Hearing; Affirmed; Written, Unsigned,
                 Unpublished.  Mary M. SCHROEDER,  Robert R. BEEZER,
                 Michael D. HAWKINS ) FILED AND ENTERED JUDGMENT.
                 [99-30196] (ft)

10/18/00         Filed original and 50 copies Appellant Carl Edward Johnson
                 petition for rehearing with suggestion for rehearing en
                 banc in 15 pgs; served 10/17/00. (PANEL AND ALL ACTIVE
                 JUDGES) (af)

Docket as of October 26, 2000 11:24 pm               Page 6