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United States of America v. Terance Scott Carpenter

May 22, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TERANCE SCOTT CARPENTER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon Robert E. Jones, Senior District Judge, Presiding D.C. No. 3:08-cr-00049-JO-1

Per curiam.

FOR PUBLICATION

OPINION

Submitted May 10, 2012*fn1 Portland, Oregon

Before: Alex Kozinski, Chief Judge, Richard C. Tallman and Sandra S. Ikuta, Circuit Judges.

Opinion

OPINION

PER CURIAM:

Terance Carpenter was convicted of five counts relating to child pornography. He appeals on two grounds.

1. At Carpenter's trial, the prosecution rested its case-in-chief, and a discussion ensued among Carpenter, his lawyer and the trial judge about whether Carpenter would testify. Carpenter and his lawyer spoke privately, then returned to the courtroom. The judge asked for Carpenter's decision about testifying, to which Carpenter's lawyer replied: "Your Honor, Mr. Carpenter tells me he wants to represent himself." Carpenter argues the district court erred in not holding a hearing on whether Carpenter made a knowing, voluntary and intelligent request for self-representation under Faretta v. California, 422 U.S. 806 (1975).

[1] To invoke his right to self-representation, a criminal defendant must assert that right in a manner that's "timely, not for purposes of delay, unequivocal, voluntary, [and] intelligent." United States v. Maness, 566 F.3d 894, 896 (9th Cir. 2009). Carpenter's request, to the extent his counsel's statement indicated a request, was both untimely and equivocal.

[2] "A demand for self-representation is timely if made before meaningful trial proceedings have begun." United States v. Bishop, 291 F.3d 1100, 1114 (9th Cir. 2002). A defendant's "failure to make a timely assertion of his constitutional right to self representation act[s] as a waiver of this right." United States v. Schaff, 948 F.2d 501, 503 (9th Cir. 1991); see also Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). Here, the first mention that Carpenter had told counsel he wanted to represent himself came at the end of the second day of trial, after the government had presented six witnesses and rested its case-in-chief. Therefore, as in Schaff, "[t]he district court did not err in denying [Carpenter's] untimely motion to proceed in pro se." Schaff, 948 F.2d at 503.

[3] Moreover, Carpenter failed to make an unequivocal request. To qualify as unequivocal, "[a] defendant must make an explicit choice between exercising the right to counsel and the right to self-representation so that a court may be reasonably certain that the defendant wishes to represent himself." United States v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994). Carpenter himself never stated that he wished to represent himself-only his counsel suggested that. And, in context, even his counsel appeared to be indicating merely Carpenter's frustration with him on the issue of who would testify for the defense. Regardless, Carpenter then engaged in direct dialogue with the trial judge about potential witnesses, yet never mentioned a desire to represent himself. And, the next morning, when the judge directly asked Carpenter whether he was "prepared to have [counsel] do the closing argument," Carpenter said: "Well, yes." In these circumstances, the district court could not have been "reasonably certain that the defendant wishe[d] to represent himself," id., meaning that Carpenter failed to make an unequivocal request for self-representation.

2. Carpenter also argues the district court erred in denying his motion to dismiss as barred by the statute of limitations the first two counts against him. Those counts charged Carpenter with producing child pornography in violation of 18 U.S.C. § 2251(a) and permitting a minor child to engage in sexually explicit conduct in violation of 18 U.S.C. § 2251(b). Carpenter argues that, because these charges didn't involve any physical contact between him and the child, they don't fall under the extended statute of limitations for offenses involving the sexual abuse of a child found in 18 U.S.C. § 3283 and instead are subject to 18 U.S.C. § 3282's general five-year statute of limitations for non-capital offenses, which elapsed before Carpenter was indicted. He ...


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