Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 11, 2013
On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-09-cr-00394-001 District Judge: The Honorable Legrome D. Davis
Mary E. Crawley, Esq. Office of United States Attorney Counsel for Appellee
Regina M. Coyne, Esq. Suite Counsel for Appellant
Before: McKEE, Chief Judge, SMITH, and SLOVITER, Circuit Judges
SMITH, Circuit Judge.
In 2004, Mark Manuel, Jr. ("Manuel") pled guilty to mail fraud, in violation of 18 U.S.C. § 1341, and conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371. He was sentenced to prison followed by a three-year term of supervised release. After being released from prison, Manuel repeatedly violated the conditions of his supervised release. At a parole revocation hearing on July 26, 2012, Manuel informed the District Court that he no longer wanted to be represented by counsel and instead wished to proceed pro se. The District Court engaged in a colloquy with Manuel, during which the Court inquired into Manuel's educational background, warned Manuel of the dangers in representing himself, and asked several questions about the reason for Manuel's desire to proceed pro se. The District Court ultimately granted Manuel's request to represent himself. At an adjourned revocation hearing on November 5, 2012, at which Manuel presented witness testimony, the District Court revoked Manuel's supervised release and sentenced him to two consecutive sixteen-month terms of imprisonment.
On appeal Manuel asks us to vacate the sentence imposed by the District Court and remand the matter for a new revocation hearing. Relying heavily on our decision in United States v. Peppers, 302 F.3d 120 (3d Cir. 2002), Manuel argues that the colloquy performed by the District Court regarding his request to proceed pro se was insufficient. We disagree. Peppers dealt with a defendant's right to self-representation in a criminal prosecution—not a parole revocation hearing. Following the test adopted by other courts of appeals, we hold that, in the context of a hearing regarding the revocation of supervised release, the appropriate test is whether the totality of the circumstances demonstrates that the defendant knowingly and voluntarily waived representation by counsel. Based on the record before us, we find that the totality of the circumstances shows that Manuel made a knowing and voluntary decision to represent himself. Consequently, we will affirm the District Court.
A. Manuel's Fraud Offenses and Conviction
Between July 2000 and November 2001, Manuel and a co-conspirator fraudulently solicited membership interests in a variety of programs owned and operated by Manuel. Manuel represented to potential investors— most of whom were low- or moderate-income individuals seeking help purchasing or refinancing their homes— that, in exchange for payment of a membership fee (ranging from a few hundred to a few thousand dollars), Manuel's programs would provide assistance with debt consolidation, mortgage refinancing, and obtaining loans from banks. Manuel and his co-conspirator did not provide these benefits to the investors. Instead, unbeknownst to the investors, Manuel and his co-conspirator used the funds received from the investors for their own personal benefit.
On November 12, 2003, a grand jury in the U.S. District Court for the Eastern District of Virginia indicted Manuel on four counts of mail fraud, in violation of 18 U.S.C. § 1341, and one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, in connection with this scam. On May 11, 2004, Manuel pled guilty to one count of mail fraud and the count of conspiracy to commit mail fraud. On October 26, 2004, the Eastern District of Virginia sentenced Manuel to seventy-one months in prison, followed by a three-year term of supervised release. As one condition of his supervised release, Manuel was required to refrain from any unlawful drug use and ordered to undergo periodic drug testing as directed by his probation officer. He also was prohibited from self-employment and from working in occupations where he would have access to personal or financial information during the period of supervised release.
B. Manuel's Repeated Violations of the Terms of Supervised Release
In December 2008, Manuel was released from prison and commenced his term of supervised release. On June 15, 2009, the Eastern District of Pennsylvania accepted a transfer of jurisdiction over Manuel's supervised release from the Eastern District of Virginia pursuant to 18 U.S.C. § 3605. Between 2009 and 2011, Manuel repeatedly violated the conditions of his supervised release by, among other things, failing numerous drug tests. After a revocation hearing on March 10, 2011, the District Court revoked Manuel's supervised release and imposed a sentence of two concurrent terms of eight months in prison, followed by two concurrent terms of twenty-four months of supervised release.
On October 24, 2011, Manuel was released from prison and commenced his second term of supervised release. On November 2, 2011 and February 6, 2012, Manuel again submitted urine specimens that tested positive for cocaine. Additionally, during a routine home visit on February 7, 2012, Manuel's probation officer discovered flyers advertising a debt-reduction seminar that Manuel had organized, which constituted a violation of the conditions of Manuel's supervised release barring him from engaging in self-employment and participating in employment where he would have access to personal or financial information.
To address these ongoing drug violations, the District Court modified the conditions of Manuel's supervised release and ordered him to reside in a residential reentry center for a period of 120 days. While confined to the residential reentry center, Manuel continued to commit additional loan fraud offenses. A victim, Kathryn Williams ("Williams"), reported to Manuel's parole officer, Kyle Watts ("Watts"), that in April 2012, Manuel had recruited her to participate in an organization called the "Women's Opportunity Organization, " which he claimed was created to provide financial assistance to single women, and had convinced Williams to give him $500 for membership in another organization, the "NEMA Financial Empowerment Association, " in exchange for the promise to secure a $300, 000 home loan for her. See Report of Violation of Supervised Release dated June 11, 2012, Supplemental Appendix 28–29. Additionally, Watts learned that, on or around May 24, 2012, Manuel solicited other residents of the reentry center to pay money to one of his organizations and promised these residents that in return they would receive profits and assistance with debt reduction, restructuring mortgages, and obtaining and refinancing home loans. Id. at Supplemental Appendix 30.
C. Manuel's Revocation Hearing and Request to Proceed Pro Se
On June 11, 2012, the District Court issued a warrant for Manuel's arrest and signed a petition seeking revocation of supervised release. At a preliminary hearing on June 15, 2012, Manuel stipulated to probable cause and detention pending his final revocation hearing.
The District Court held an initial revocation hearing on July 26, 2012. At this hearing, the government presented evidence of Manuel's violations of the conditions of supervised release, including testimony by Manuel's probation officer and testimony by Williams and her mother about Manuel's efforts to solicit Williams' participation in the Women's Opportunity Organization and NEMA Financial Empowerment Association.
After these witnesses were cross-examined by Manuel's counsel, Regina Coyne, Esq. ("Ms. Coyne"), and the government had concluded presenting its evidence, Manuel informed the District Court that he no longer wanted to be represented by Ms. Coyne and instead wished to proceed pro se. The District Court engaged Manuel in the following colloquy about his request, during which the Court questioned Manuel about, among other things, his educational background and lack of familiarity with court rules, his reasons for wanting to represent himself, and the strategic disadvantages of proceeding pro se:
THE COURT: So, sir, how old are you?
THE DEFENDANT: I am fifty-four years old.
THE COURT: And how far did you go in school?
THE DEFENDANT: Four years of college.
THE COURT: And where did you go to college?
THE DEFENDANT: Indiana University, Wilmington [sic], Indiana.
THE COURT: You need to speak louder. So you completed your academic program but if I remember correctly, since you had an outstanding tuition bill, you didn't get your degree, is that correct?
THE DEFENDANT: Degree, yes. Thank you.
THE COURT: Do you have any drugs or alcohol in your system today?
THE DEFENDANT: No, I do not.
THE COURT: And do you have any mental health problems today or have you had any in the past?
THE DEFENDANT: No, I do not.
THE COURT: And tell me what you got your degree in?
THE DEFENDANT: Business administration and management.
THE COURT: All right. So you did not go to any post-grad -- or post-graduate program of any sort, is that correct?
THE DEFENDANT: No, sir.
THE COURT: And -- am I correct, is that --
THE DEFENDANT: Yes.
THE COURT: And it would be fair to say that you do not have any legal training, ...