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United States v. Hamman

United States District Court, D. Oregon

July 12, 2017


          Billy J. Williams, United States Attorney, and Scott M. Kerin, Assistant United States Attorney, United States Attorney's Office for the District of Oregon, Of Attorneys for the United States of America.

          Per C. Olson, Hoevet Olson Howes, PC, Of Attorneys for Defendant.


          Michael H. Simon United States District Judge

         On January 24, 2017, after a five-day trial, a jury returned a verdict finding the Defendant, Wes Edward Hamman (“Hamman”), guilty of bank robbery. Shortly after the Government filed charges against Hamman, the Court appointed counsel to represent him. After Hamman requested the appointment of a different attorney, the Court spoke with Hamman outside of the presence of the Government, agreed to appoint a different attorney to represent Hamman, and advised Hamman that the Court almost certainly would not appoint a third attorney for Hamman if he became dissatisfied with his second court-appointed attorney. Approximately one month before trial, Hamman asked to represent himself at trial and have his second court-appointed attorney serve as standby counsel. The Court held a Faretta hearing, during which Hamman explained that he wanted to present his “side” to the jury without having the jury learn about his “past.” Hamman expressed no difficulties or concern about working with his second appointed counsel, whom Hamman wanted to continue in the role of standby counsel. Hamman also did not indicate in any way that he wanted the Court to consider appointing a new (third) attorney to represent him at trial. After confirming that Hamman's request to represent himself was made knowingly, voluntarily, and unequivocally, the Court granted Hamman's request. After the jury returned its verdict, Hamman asked that his standby counsel be appointed to represent him for sentencing. The Court agreed. Before sentencing, however, Hamman's second counsel moved to withdraw, and Hamman requested the appointment of new counsel (his third). The Court agreed. More than three months after the jury rendered its verdict, Hamman, through his third court-appointed counsel, filed a motion for new trial. Hamman argues, among other things, that the Court denied Hamman his Sixth Amendment right to counsel. For the following reasons, Hamman's motion is denied.


         “Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “A motion for a new trial is directed to the discretion of the district judge. It should be granted ‘only in exceptional cases in which the evidence preponderates heavily against the verdict.'” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (quoting 2 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 553 (1st ed. 1969)). There are two alternative filing deadlines that may apply to a motion for new trial, depending on the grounds for the motion. First, “[a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(1). Second, “[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). When an act may be done within a specified period, however, the court may extend the time for good cause on a party's motion “after the time expires if the party failed to act because of excusable neglect.” Fed. R. Crim. P. 45(b)(1)(B).


         A. Pretrial

         On April 22, 2016, Hamman made his initial appearance following a criminal complaint. At the hearing, a U.S. Magistrate Judge appointed Assistant Federal Public Defender Francesca Freccero as counsel for Hamman. On April 26, 2016, a grand jury indicted Hamman, charging him with one count of bank robbery in violation of 18 U.S.C. § 2113(a).

         More than six months later, on November 2, 2016, Hamman filed a pro se motion asking the Court to appoint new counsel. The Court held a hearing and spoke with Hamman outside the presence of the prosecution. After some discussion, the Court said to Hamman: “I am going to ask you, do you still want me to appoint a new attorney for you. If you say yes, I'm going to, but it will also come with the following caveat: I am not going to do [it] a third time. I'm not going to do it again after this.” ECF 125 at 11:21-25. The Court also explained to Hamman:

You either have to stay with that second attorney or you have to tell me that you want to represent yourself. If you want to represent yourself and you are aware of the challenges and the difficulties of doing that-and by the way, if you do want to represent yourself, I am going to give you all the reasons why you shouldn't, because that's not a good idea at trial. But if you really want to represent yourself, I will let you do it, as long as you understand the risks. If you want to continue with your second attorney, that will be fine too. But if you tell me you want a third attorney, I'm almost certainly going to say no. I will give you have [sic] two shots, and takes [sic] [that's] it.

ECF 125 at 12:1-22 (emphasis added). The Court added that

sometimes, for whatever [reason, ] may be [sic] even personality reasons, an attorney and a client sometimes don't mesh. That's why I am generally pretty easy about giving someone a second attorney when there is [a] good reasons [sic] presented, but I also want to make sure you understand you are not going to get a third.

ECF 125 at 14:12-16.

         The Court then relieved Ms. Freccero of her duties and invited the prosecution back into the courtroom. Before the conclusion of the public hearing, the Court announced in open court:

I did advise Mr. Hamman that I generally do not grant a third [sic] request for a third attorney; that I am authorizing a second attorney be appointed in this matter. I hope that the relationship works out well. But if for whatever reason it doesn't, I almost certainly will not appoint a third attorney. Mr. Hamman will they [sic] [then] have the option of continuing with the second attorney or choosing to be his own attorney, with all of the risks and difficulties that are attached to that choice.

ECF 125 at 24:24-25:7 (emphasis added). On November 4, 2016, the Court appointed Ernest Warren, Jr. to represent Hamman as Hamman's second court-appointed counsel. ECF 42.

         On December 14, 2016, Hamman, through Mr. Warren, filed several matters. First, Hamman filed a motion to allow him to represent himself at trial with the assistance of Mr. Warren as standby counsel. ECF 50, 51. Second, Hamman filed a Notice of Alibi Defense. ECF 52. Third, Hamman filed a motion in limine to exclude hospital incident reports, statements, and photographs, which the Government contended were admissible as evidence of an escape attempt and, thus, consciousness of guilt. ECF 53, 54. The following day, Hamman filed several more motions in limine seeking to exclude, among other things, what the Government contended was evidence of Hamman trying to coordinate yet another escape attempt. ECF 55-58.

         On December 29, 2016, the Court held a hearing, pursuant to Faretta v. California, 422 U.S. 806 (1975), on Hamman's motion to represent himself at trial with Mr. Warren serving as standby counsel. ECF 66. At the Faretta hearing, the Court presented Hamman with a written checklist of rights and risks (ECF 67), and the Court reviewed that checklist orally with Hamman during the hearing. Hamman initialed and signed the checklist and confirmed that he understood the rights that he was waiving and the risks that he was accepting. The Court told Hamman that there were “a number of serious disadvantages that [he would] face by going forward without an attorney.” ECF 112 at 15:1-3. The Court warned Hamman that “the rules and procedures of a trial-that includes the Federal Rules of Evidence and the Federal Rules of Criminal Procedure-they will still apply to you, even though you're not a lawyer.” ECF 112 at 15:9-12.

         The Court also advised Hamman that he was giving up a number of benefits by deciding to represent himself. ECF 112 at 15:24-16:2. The Court told Hamman that “a trained lawyer would and will defend you far better than you can defend yourself, and I think it is unwise of you to try to represent yourself. . . . I strongly urge you and recommend that you not try to represent yourself.” ECF 112 at 21:11-17. The Court explained basic trial procedures to Hamman and discussed how an attorney could represent Hamman at trial. ECF 112 at 16:21-19:4, 23:20-27:9.

         Hamman stated that he understood the disadvantages of representing himself, as well as the benefits that he would be foregoing by choosing to represent himself. ECF 112 at 31:19-32:2. Hamman also explained the reason why he desired to represent himself:

In order for me to stand in front of a jury or take the stand, my past is going to come up, and I think the only way to avoid that and tell my side of it is to represent myself. So that's what I'm going to do.

ECF 112 at 28:24-29:2.[1] At the conclusion of the Faretta hearing, the Court granted Hamman's request to represent himself at trial and his request to have Mr. Warren appointed as standby counsel. At no time during this hearing did Hamman say that he wanted a different attorney appointed for him (either as trial counsel or standby counsel), or give the Court any indication that he wanted to discuss anything about his attorney. Further, when Mr. Warren filed Hamman's motion to represent himself at trial (ECF 50, 51), Mr. Warren gave no indication to the Court that Hamman would have preferred not to represent himself at trial but instead wanted to have a different attorney appointed as trial counsel.

         After the Faretta hearing, but before trial began, Hamman appeared before the Court three more times. The first was a pretrial conference held on January 5, 2017. ECF 81. The second was a pretrial conference held on January 13, 2017. ECF 85. The third was for the final pretrial conference held on January 17, 2017. ECF 88. At none of these hearings did either Hamman or Mr. Warren tell the Court that Hamman had any concerns regarding his standby counsel or any desire or interest in having the Court appoint different counsel for Hamman.

         On January 18, 2017, however, the morning of the first day of trial, Hamman orally moved for a continuance. He stated:

My son came up and spoke to me yesterday. He flew in from Phoenix. He has a check that just came through. So he was trying to get me a lawyer. He called on a few lawyers, and they told him I would have to postpone this in order for them to take it, and so I was going to ask if I could do that.

ECF 128 at 4:2-7. Hamman did not provide the Court with the name of any retained counsel who had agreed to represent him, if only a continuance would be granted, and no retained attorney appeared with Hamman to make such a representation and request directly to the Court. The Court told Hamman that his motion to postpone trial was denied as untimely. ECF 128 at 4:8-9. The Court, however, allowed Hamman to be heard further. Hamman then explained:

Ernest Warren [Hamman's standby counsel] has been pretty busy. I have seen his investigator maybe twice, and I've seen him quite a bit actually. But he still wasn't ready for trial-still wasn't-still aren't [sic] right now.
I have asked [sic] to do many, many things, and I made a list. I asked for the list to be copied and be brought here, and I still haven't seen the list. It has a list of things that I needed for trial, and they still haven't got them. So I haven't done them.
So I am asking to postpone this, because I'm not ready, and I need a fair trial.

ECF 128 at 6:1-11. Mr. Warren then showed the Court an electronic copy of Hamman's “list.” The Court reviewed Hamman's “list” and concluded:

I don't see anything here that could not have been raised in a more timely fashion. I note that when we had our Faretta hearing, Mr. Hamman said nothing about wanting more time to retain a private attorney or otherwise. I don't even recall hearing anything about this yesterday when we spoke.

ECF 128 at 8:11-15 (emphasis added).

         B. Trial

         At trial, the jury heard the following evidence. On April 20, 2016, at approximately 12:30 p.m., a man entered the Key Bank located at 4131 S.E. Hawthorne Boulevard, near S.E. 41st Avenue, in Portland, Oregon. Key Bank was insured by the FDIC. The man approached one of the tellers. The man was wearing a baseball cap with a Batman logo, sunglasses, and a surgical mask that covered much of his face. The man gave the teller a note that said he had a gun and demanded money. Consistent with her training, the teller gave the robber five twenty-dollar bills with serial-numbers pre-recorded (also known as “bait bills”) and a hidden electronic GPS tracking device. As soon as the tracking device is removed from the teller's cash drawer, it automatically alerts law enforcement. The robber then demanded hundred-dollar bills and fifty-dollar bills. The teller complied. The robber fled. After the robbery, the teller's cash drawer was short $2, 210.

         Four-tenths of a mile from the bank, near the corner of S.E. 45th Avenue and S.E. Belmont Street in Portland, a cab driver was waiting. The driver previously had been a police officer in Costa Rica. He now drove a taxi cab in Portland. On the day of the bank robbery, the taxi cab driver began work at ...

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