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No. 08-1009

 

In the Supreme Court of the United States

NANCY MONTGOMERY WARE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
JOHN DICICCO
Acting Assistant Attorney
General
ALAN HECHTKOPF
MARK S. DETERMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in refusing to review a magistrate judge's order finding that defendant waived her Sixth Amendment right to counsel, where the defendant did not object to that order before the dis trict court.

In the Supreme Court of the United States

No. 08-1009

NANCY MONTGOMERY WARE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

 

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINION BELOW

The opinion of the court of appeals (Pet. App. A3- A17) is not published in the Federal Reporter but is re printed in 292 Fed. Appx. 845.

JURISDICTION

The judgment of the court of appeals was entered on September 11, 2008. A petition for rehearing was denied on November 10, 2008 (Pet. App. A1-A2). The petition for a writ of certiorari was filed on February 6, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the Middle District of Flor ida, petitioner was convicted of two counts of willfully attempting to evade tax, in violation of 26 U.S.C. 7201, and three counts of willfully failing to file a tax return, in violation of 26 U.S.C. 7203. She was sentenced to 33 months of imprisonment, to be followed by three years of supervised release. Pet. App. A20-A25. The court of appeals affirmed. Id. at A3-A17.

1. Petitioner was a partner in a pediatric dentistry practice in Lakeland, Florida. For 1998 and 1999, peti tioner reported more than $1 million in gross income on her individual income tax returns and paid federal in come tax on that income. In 2000, petitioner requested that the partnership stop withholding federal income tax, Social Security tax, and Medicare tax from her earnings. Petitioner presented the partnership with "tax protestor" literature that falsely claimed that pay ing income tax was voluntary. Petitioner also opened two checking accounts for unincorporated associations that were not linked to her Social Security number. Pet. App. A7-A8; Gov't C.A. Br. 4-5.

Petitioner completed W-4 forms claiming that she was "exempt" from federal withholding. Based on those forms, the partnership stopped withholding taxes from petitioner's earnings. After receiving the W-4 forms, however, the IRS informed the partnership that peti tioner was not exempt and sent petitioner a delinquency notice. When the partnership received the notification from the IRS, it began withholding taxes again. In 2004, petitioner left the partnership but continued to practice at the same location. Pet. App. A8-A9; Gov't C.A. Br. 6, 8, 11.

Petitioner failed to file tax returns for the tax years 2000 through 2004. The IRS calculated that petitioner owed a total of $362,212.24 in federal income taxes, ex cluding penalties and interest. Pet. App. A9, A11; Gov't C.A. Br. 17; see id. at 7-12.

2. A federal grand jury sitting in the Middle District of Florida returned an indictment charging petitioner with two counts of willfully attempting to evade tax, in violation of 26 U.S.C. 7201, and three counts of willfully failing to file a tax return, in violation of 26 U.S.C. 7203. Pet. App. A7.

At her initial arraignment, petitioner asked to be represented by her husband, who is not an attorney. The magistrate judge continued the arraignment for two weeks until it could hold a Faretta hearing. Minute Or der (Apr. 18, 2007); see Faretta v. California, 422 U.S. 806 (1975).

At the hearing, petitioner acknowledged that she did not know of any authority that would allow her husband to represent her, and she requested to represent herself. Pet. App. A36-A37. The magistrate judge advised at the beginning of the hearing that an attorney with the Fed eral Public Defender's office was present and available for consultation should petitioner wish to "ask an experi enced defense counsel any questions," but petitioner declined the opportunity. Gov't C.A. Br. 13 (citation omitted). The prosecutor then summarized the charges and the maximum penalties. Id. at 13-14. When the magistrate judge asked petitioner if she understood the charges and penalties, petitioner responded that she had heard the prosecutor but that "[t]here's no law making me liable. They've not established that there is a law making me, as an individual, liable." Id. at 14 (citation omitted); see id. at 13-14.

The magistrate judge reiterated that petitioner had a constitutional right to be represented by an attorney and that, if she submitted a financial affidavit showing that she lacked the financial resources to retain an at torney, the court would appoint someone to represent her. Petitioner responded, "No, I don't wish to do that, but I do need the assistance of counsel." Gov't C.A. Br. 14 (citation omitted). The magistrate judge then ex plained that standby counsel would be available to assist petitioner if she chose to represent herself. Petitioner responded that she did not want to be assisted by any one with "a bar number," based on her view that "any one who has a bar number is beholding [sic] to the IRS." Ibid. (citation omitted); see Pet. App. A36-A37.

The magistrate judge asked petitioner why she sought to represent herself in this case. The following discussion ensued:

THE DEFENDANT: I feel that I will retain all the rights that I came into this courtroom with if I represent myself and speak for myself.

THE COURT: Okay.

THE DEFENDANT: And I believe I can under stand and read the manuals and follow along with the rules of court as long as we are following those rules.

THE COURT: So, you, in effect, think that you can represent yourself better than somebody else could?

THE DEFENDANT: Yes, I do.

Gov't C.A. Br. 15-16 (citation omitted). The magistrate judge then strongly urged petitioner not to represent herself, but petitioner reiterated that she still wished to do so. At the conclusion of the hearing, the magistrate judge reiterated, "Are you absolutely sure about this decision?" Petitioner responded, "Yes, absolutely." Id. at 16; Pet. App. A7.

The magistrate judge found that petitioner know ingly, intelligently, and voluntarily had waived her right to counsel. Gov't C.A. Br. 16. The magistrate judge then issued a written order memorializing that ruling. Pet. App. A35-A40. Although the order expressly ad vised petitioner that she had ten days from the date of the order to seek review by the district court, id. at A39 n.5, she did not do so, id. at A13.

The court appointed the Federal Public Defender's office as standby counsel. Order (May 23, 2007); see Pet. App. A39-A40.

3. Petitioner pleaded not guilty and proceeded to trial pro se. The jury found petitioner guilty of all five charges. The district court sentenced petitioner to serve 33 months of imprisonment, to be followed by three years of supervised release; fined her $25,000; and or dered her to pay $362,212.24 in restitution. Pet. App. A20-A31.

4. The court of appeals affirmed in an unpublished per curiam opinion. Pet. App. A3-A17.

On appeal, petitioner argued for the first time that she did not knowingly and voluntarily waive her right to counsel. The court of appeals concluded that petitioner "waived this argument because she failed to object to the order of the magistrate judge that granted [her] re quest to represent herself." Pet. App. A13-A14. The court of appeals added that it therefore "lack[ed] juris diction to review that order." Id. at A14 (citing United States v. Brown, 441 F.3d 1330, 1352 (11th Cir. 2006), cert. denied, 549 U.S. 1182 (2007)).

ARGUMENT

As relevant here,1 petitioner contends (Pet. 14-15) that the circuits are in conflict on the question whether, in an appeal from a final judgment of a district court, the courts of appeals have jurisdiction to review a magis trate judge's decision on a nondispositive pretrial matter when no party sought review of that ruling by the dis trict court. Further review on that question is not war ranted. The recently adopted Rule 59 of the Federal Rules of Criminal Procedure provides that the failure to file timely objections to a magistrate judge's non-dispos itive pretrial determination "waives a party's right to review." Fed. R. Crim. P. 59(a). Therefore, petitioner could not obtain relief in the court of appeals, even if it asserted jurisdiction over her unpreserved claim. The court's statement that it lacked jurisdiction was incor rect in the government's view, but the statement was unnecessary to its decision and does not warrant further review.

1. a. Under the Federal Magistrates Act, 28 U.S.C. 636, a district court may refer certain nondispositive pretrial matters to a magistrate judge for resolution, subject to review by the district court "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. 636(b)(1)(A). Dispositive pretrial matters and petitions for habeas corpus may also be referred to magistrate judges for appropriate proceedings, proposed findings of fact, and recommen dations as to disposition. 28 U.S.C. 636(b)(1)(B) and (C).

In criminal cases, review of matters before a magis trate judge is governed by Rule 59. For both dispositive and nondispositive matters, Rule 59 provides that "[f]ail ure to object in accordance with this rule waives a par ty's right to review." Fed. R. Crim. P. 59(a) and (b)(2). An objection is preserved if filed with the district court within ten days. Ibid.; see also 28 U.S.C. 636(b)(1) (codi fying the ten-day limit for appeals from "proposed find ings and recommendations").

Rule 59's waiver provision drew on this Court's deci sion in Thomas v. Arn, 474 U.S. 140 (1985). Fed. R. Crim. P. 59 advisory committee's note (2005). In Thom as, this Court held that the courts of appeals could per missibly (but need not) adopt a rule that a litigant waives further review if she fails to file timely and spe cific objections to a magistrate judge's recommendation on a dispositive matter. 474 U.S. at 155. The Court ob served that the rule under review in that case was a "non-jurisdictional waiver provision," and that the court of appeals "may excuse [a] default." Ibid.; see id. at 146. The advisory committee notes to Rule 59 explain the committee's view that the same would be true under that rule: "Despite the waiver provisions, the district judge retains the authority to review any magistrate judge's decision or recommendation whether or not objections are timely filed."

b. Rule 59 is dispositive here, as the court of appeals recognized. Pet. App. A13-A14 ("[Petitioner] waived this argument because she failed to object to the order of the magistrate judge that granted [petitioner's] re quest to represent herself. See Fed. R. Crim. P. 59(a)."). That waiver holding amply supports the court of ap peals' conclusion that petitioner could not obtain any further review of her right-to-counsel claim.

Petitioner's only contention to the contrary (Pet. 19) is the assertion that Rule 59(a) "is a rule of procedure" that "does not speak to jurisdiction or appeals from final judgment." Although Rule 59(a) does not speak to juris diction, compliance with the rule is a prerequisite to appellate review. See Fed. R. Crim. P. 59 advisory com mittee's note (2005) ("Th[e] waiver provision is intended to establish the requirements for objecting in a district court to preserve appellate review of magistrate judges' decisions.") (emphasis added). As the decision in Thom as (relied on by the drafters of Rule 59) makes clear, the purpose of the objection requirement is to preclude ap peal beyond the district court when a party does not appeal to the district court. See, e.g., 474 U.S. at 147-148 ("The [waiver] rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from 'sandbagging' the district judge by failing to object and then appealing. Absent such a rule, any issue before the magistrate would be a proper subject for appellate review."). The waiver plainly extends to proceedings in the appellate courts.

That point is particularly clear in the context of a magistrate judge's ruling on a nondispositive matter, like the one here. Magistrate judges may be authorized to "hear and determine" those matters, 28 U.S.C. 636(b)(1)(A), and no formal action by the district court is required to adopt or ratify their rulings. Thus, peti tioner cannot even make the argument that the litigant in Thomas unsuccessfully advanced: that the district court was required to exercise some form of review when adopting magistrate judges' recommended rulings on dispositive motions (which could in turn be reviewed on appeal). 474 U.S. at 149-150. This Court rejected that argument. See ibid.

2. Because the court of appeals correctly held that petitioner waived her argument under Rule 59(a), this case does not present any genuine issue about the court of appeals' jurisdiction to review a magistrate judge's ruling on a nondispositive matter in a criminal case where the defendant did not appeal to the district court. The court of appeals' non-precedential decision did re cite, based on circuit precedent that predated Rule 59, that it "lack[ed] jurisdiction." Pet. App. A14. But the court did not, as the government requested,2 dismiss pe titioner's appeal as to her challenge to her waiver of counsel. Instead, the court affirmed the judgment of conviction, precisely the appropriate disposition in light of the holding of waiver.

As explained in previous briefs to this Court, the gov ernment does not agree with the court of appeals' prece dent concluding that a failure to object to a magistrate judge's ruling deprives the court of appeals of jurisdic tion to consider that ruling on an appeal from final judg ment.3 The correctness of that precedent, however, does not present a significant question that warrants plenary review.

a. In the most relevant precedent, the court of ap peals held that it lacked jurisdiction because "[a]ppeals from the magistrate's ruling must be to the district court." United States v. Brown, 299 F.3d 1252, 1260 (11th Cir. 2002) (brackets in original; citation omitted), vacated mem., 538 U.S. 1010, reinstated, 342 F.3d 1245 (11th Cir. 2003), cert. denied, 543 U.S. 823 (2004). But the appeal in that case (as in this one) was not taken directly from the magistrate judge's order. Rather, the defendant appealed from the final judgment of convic tion entered by the district court in her case. The court of appeals had jurisdiction of that appeal pursuant to 28 U.S.C. 1291 (courts of appeals have jurisdiction of ap peals from "all final decisions of the district courts"). And interlocutory rulings in a criminal case are appeal able on entry of the final judgment. See United States v. Hollywood Motor Car Co., 458 U.S. 263, 265 (1982) (per curiam) (citing DiBella v. United States, 369 U.S. 121, 124 (1962)). Once the court of appeals acquires ju risdiction, Federal Rule of Criminal Procedure 52(b) prescribes the standard for review of a claim that was forfeited by not being presented to the district court (but was also not waived). That rule provides that "[a] plain error that affects substantial rights may be consid ered even though it was not brought to the court's atten tion." Fed. R. Crim. P. 52(b).

The defendant in Brown sought review in this Court on those grounds. The government filed a brief agree ing that the court of appeals had jurisdiction and sug gesting that this Court grant the petition for a writ of certiorari, vacate the judgment of the court of ap peals, and remand for further proceedings. U.S. Br. at 5, Brown v. United States, 538 U.S. 1010 (2003) (No. 02-8263). This Court did so. 538 U.S. 1010 (2003). On remand, however, the court of appeals held that it was bound by the former Fifth Circuit's precedent in United States v. Renfro, 620 F.2d 497, 500, cert. denied, 449 U.S. 921 (1980), and could not reconsider that rule ex cept sitting en banc. United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). This Court denied certio rari. Brown v. United States, 543 U.S. 823 (2004).

b. At the time the Court denied certiorari in Brown, the courts of appeals were divided on the question whe ther failure to object to a magistrate judge's ruling im plicates the court of appeals' jurisdiction. Compare, e.g., United States v. Akinola, 985 F.2d 1105, 1108-1109 (1st Cir. 1993), and Brown, 299 F.3d at 1260 (following Ren fro, 620 F.2d at 500), with United States v. Brown, 79 F.3d 1499, 1504 (7th Cir.) (concluding that "failure to challenge before a district judge a magistrate's pretrial rulings * * * waives the right to attack such rulings on appeal," but that "this rule is not jurisdictional") (cita tion omitted), cert. denied, 519 U.S. 875 (1996), and Uni ted States v. Polishan, 336 F.3d 234 (3d Cir. 2003) (simi lar), cert. denied, 540 U.S. 1220 (2004), and United States v. Abonce-Barrera, 257 F.3d 959, 967-969 (9th Cir. 2001) (failure to challenge a magistrate judge's or der on nondispositive pretrial issues has no effect on appealability).

That issue lacks prospective significance now that Rule 59 provides a rule of waiver in criminal cases.4 In any case in which the claimant did not preserve an ob jection in the district court, Rule 52(b) limits the court of appeals to plain-error review. And as this Court ex plained in United States v. Olano, 507 U.S. 725 (1993), any objection that has been waived cannot be error, much less reversible plain error. See id. at 733-734. That principle applies to waivers under Rule 59 as to other waivers. Under those circumstances, no appellate relief would be possible, see id. at 732, whether or not the court has appellate jurisdiction.

In light of Rule 59, no issue of importance is impli cated by the question presented.5 Even before Rule 59, the issue arose only infrequently in criminal cases.

3. Petitioner's underlying contention that she did not knowingly and intelligently waive her right to coun sel would not have resulted in reversal of her conviction even if the court of appeals had reviewed her claim for plain error. It is well established that a defendant has a Sixth Amendment right to conduct her own defense. Faretta v. California, 422 U.S. 806, 819-832 (1975). To waive her right to counsel, the defendant must be com petent to stand trial and must knowingly, intelligently, and voluntarily waive her Sixth Amendment right. Go dinez v. Moran, 509 U.S. 389, 400 (1993). Accordingly, a trial court's duty at a Faretta hearing is to establish that the defendant "knows what [s]he is doing and [that] h[er] choice is made with eyes open." Faretta, 422 U.S. at 835 (citation omitted). The court fulfilled that duty here.

Petitioner already had some familiarity with litiga tion at the time of her trial. She owned a copy of the Federal Rules of Evidence and the Federal Rules of Criminal Procedure; she had represented herself several times in civil litigation against her business partner; and she had been represented by counsel in connection with other business and personal matters. Gov't C.A. Br. 14- 15. Petitioner also confirmed, "I believe I can under stand and read the manuals and follow along with the rules of court as long as we are following those rules." Id. at 15. Petitioner was also well educated, holding a graduate degree in dentistry. Id. at 14.

The magistrate judge repeatedly urged petitioner to secure counsel and discussed, at some length, the dan gers and disadvantages of self-representation. Gov't C.A. Br. 34-35. For instance, the magistrate judge pointed out that although petitioner obviously was well educated, "[t]he courtroom is a different arena," where things that cannot be anticipated likely will occur. Id. at 34 (brackets in original; citation omitted). She also cau tioned petitioner, "[Y]ou are stepping out in new terri tory if you've never represented yourself in a criminal case." Ibid. (brackets in original; citation omitted).

Despite these admonitions, petitioner unequivocally stated that she wished to represent herself:

THE DEFENDANT: Then I'll represent myself then.

THE COURT: Are you sure about that?

THE DEFENDANT: Yes. I'm positive.

THE COURT: Okay. Has anyone promised you anything or threatened you in any way to get you to give up your right to have counsel represent your self?

THE DEFENDANT: No.

THE COURT: Are you absolutely sure about this decision?

THE DEFENDANT: Yes, absolutely.

Gov't C.A. Br. 32-33 (citation omitted). On this record, the magistrate judge committed no reversible plain er ror in finding that petitioner waived her right to coun sel.6

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
JOHN DICICCO
Acting Assistant Attorney
General
ALAN HECHTKOPF
MARK S. DETERMAN
Attorneys

MAY 2009

1 On March 18, 2009, this Court requested that the government file a response "in Question No. 1 only."

2 The government's brief to the court of appeals in this case relied principally on Rule 59(a), but also cited the circuit precedent holding that the waiver has jurisdictional consequences, and asked that the appeal be dismissed. Gov't C.A. Br. 18, 20, 30.

3 The government first asserted that position in its brief in Brown v. United States, suggesting that the Court grant the petition and remand to the Eleventh Circuit for further consideration. U.S. Br. at 5, Brown v. United States, 538 U.S. 1010 (2003) (No. 02-8263). The Court adop ted that suggestion. After the Eleventh Circuit reafffirmed its view, United States v. Brown, 342 F.3d 1245 (2003), and Brown again sought certiorari, the United States reaffirmed its position on the jurisdictional issue, but opposed review, principally because proposed Rule 59(a) would resolve the matter; the issue arises only rarely in criminal cases; and Brown's claim would fail even if reviewed on the merits. U.S. Br. in Opp. at 5-7, Brown v. United States, 543 U.S. 823 (2004) (No. 03-9931). This Court denied certiorari. 543 U.S. 823 (2004).

4 In civil cases, the analysis may differ because the relevant rule, Rule 72(a) of the Federal Rules of Civil Procedure, is phrased different ly. Rule 72(a) provides that an objection to a magistrate judge's order on a nondispositive matter must be made within 10 days and that "[a] party may not assign as error a defect in the [magistrate judge's] order not timely objected to." Applying Rule 72(a), the courts of appeals have reached different conclusions about whether a party's failure to object deprives the appellate court of jurisdiction to review the order. See Brown, 79 F.3d at 1504 n.34 (citing cases).

5 The Eleventh Circuit recently dismissed an appeal in part, citing Brown and Renfro, but the magistrate judge's order in that case was entered before Rule 59 took effect. United States v. Schultz, No. 06-11673, 2009 WL 1067393, at *5-*6 (Apr. 22, 2009).

6 Petitioner does not contend, nor does the record suggest, that she was incompetent to waive her rights or that a defective waiver at the hearing justifies her failure to heed the magistrate judge's admonition that objections be filed within ten days.