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United States v. Ellerbe

July 02, 2004


Appeal from the United States District Court for the District of Columbia (No. 00cr00352-01)

Before: Edwards, Henderson and Roberts, Circuit Judges.

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge

Argued February 12, 2004

Appellant Lydell Ellerbe appeals his conviction of six counts of unlawfully distributing narcotics and transporting firearms and his sentence therefor. Ellerbe contends the trial court deprived him of his right to legal representation under the Sixth Amendment of the United States Constitution and his speedy trial right under the Interstate Agreement on Detainers (IAD).

We reject his IAD argument in toto and his Sixth Amendment objection insofar as it relates to his trial and conviction. We agree, however, that the trial court denied him his right to counsel at sentencing and therefore remand for the court to offer Ellerbe the option to be resentenced with assistance of counsel.


During 2000 Ellerbe was videotaped selling undercover police officers the following contraband items: ten assorted firearms on April 10, a shotgun, two handguns and ten dilaudid*fn1 tablets on May 5, fifteen boxes of shotgun shells and ten dilaudid tablets on June 26, fifty dialudid tablets on July 19 and five-hundred dilaudid tablets on August 7. Based on these transactions, on October 19, 2000, Ellerbe was indicted on two counts of interstate transportation of firearms in violation of 18 U.S.C. § 922(a)(1)(A) (counts one and two), four counts of unlawful distribution of dilaudid in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (counts three, five, six and seven) and one count of using, carrying or possessing a firearm during the commission of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (count 4). A bench warrant issued and, because Ellerbe was then incarcerated by the Virginia Department of Corrections, was lodged as a detainer*fn2 against his release. On March 26, 2001 the United States received a request for disposition of the charges in the indictment under the IAD, to which both the Commonwealth of Virginia and the District of Columbia are signatories and which provides for a speedy trial (within 180 days of a prisoner's request for final disposition) of a prisoner incarcerated in a contracting state against whom a detainer has been lodged based on an untried indictment in another contracting state. 18 U.S.C. app. 2, § 2, art. iii. On March 22 the district court issued a writ of habeas corpus prosequendum pursuant to which Ellerbe was transported to the District of Columbia. He was provided counsel from the Office of the Public Defender which represented him at his arraignment on May 8, 2001, during which a status hearing was set for June 6, 2001.

At the June 6 hearing Ellerbe requested new counsel and the court agreed to appoint new, private counsel and to hold another status conference after the appointment. The court announced that the time lapse between then and the next status conference would be "excluded from the speedy trial calculation at [Ellerbe's] own request." 6/06/01 Tr. at 9. Ellerbe agreed to the exclusion.

At the next conference, on June 14, 2001, new appointed counsel entered an appearance on Ellerbe's behalf. The court set a trial date of July 24 and directed Ellerbe's counsel to file any pre-trial motions within two weeks. The court informed the parties it would "adjust the trial schedule to the motions." 6/14/01 Tr. at 5. On July 24, the date on which the trial had been scheduled to begin, Ellerbe complained to the court of his lawyer's "ineffective assistance" in refusing to file motions Ellerbe had requested. His counsel informed the court he could not in good conscience file the requested motions, explaining that he and Ellerbe were having communication problems. The court then discussed with Ellerbe the motions he wished to file. During the discussion, Ellerbe revealed he had filed complaints against his lawyer with the bar associations of both Virginia and the District of Columbia. The lawyer then moved to withdraw and the court again suspended the speedy trial clock until a third lawyer could be appointed, to which Ellerbe again agreed. On July 25 the court requested a new lawyer to represent Ellerbe but she declined after Ellerbe told her he did not wish her to represent him.

On September 6, 2001 the court held a status conference to determine Ellerbe's competence both to stand trial and to represent himself. A lawyer from the Public Defender's Office was appointed, temporarily, to represent Ellerbe at the hearing. After temporary counsel reported to the court that Ellerbe felt he lacked the legal knowledge to represent himself and wished the assistance of counsel, the court advised Ellerbe that it would appoint a fourth lawyer but that the lawyer would be the last such appointment. It then ordered the case "continued until the entry of an appearance of the next -- and last -- attorney that Mr. Ellerbe will have." 9/6/01 Tr. at 18.

In a memorandum dated October 10, 2001 the newly appointed counsel, Edward Sussman, advised the court that he did "not see how the standard attorney-client relationship will work in this case." Gov't Rec. Mat. tab L, at 1. He therefore suggested that "the court explore having the defendant act as his own counsel with an attorney acting in an advisory capacity." Id. at 1-2. At a status hearing on October 12, 2001 the court appointed Sussman as Ellerbe's legal advisor and set a motions hearing for November 13, 2001. At the motions hearing, Ellerbe argued on his own behalf, with Sussman interceding sporadically. At the conclusion of the hearing Ellerbe complained that the court itself had acknowledged he was not knowledgeable enough to represent himself. The court then offered (disregarding its previous ultimatum) to appoint another lawyer to represent Ellerbe. Ellerbe emphatically turned down the offer and stated: "No matter where it takes me[,] I'll continue the way I'm going." 11/13/2001 Tr. at 37. At a subsequent hearing on November 30, 2001, when the court expressed concern about Ellerbe's competence to represent himself, Ellerbe replied: "[Y]ou were the one who told me that I had to represent myself" but then continued: "That's the way I want it to be." 11/30/01 Tr. at 4. Uncertain of Ellerbe's competence, the court ordered him committed for psychological evaluation.

In a report filed with the district court on January 22, 2002, the government psychologists who examined Ellerbe stated he was "not viewed as suffering from a significant mental disease or defect" that would render him "not able to understand the charges, court procedures, or adequately assist with his defense provided he chooses to do so" but advised that "[b]y virtue of his limited educational opportunities, below average mental ability and moderate paranoid traits" they did "not view him as capable of conducting his own self defense." Gov't Rec. Mat. tab P, at 7. At a conference on March 7, 2002, the court agreed that Ellerbe was competent to stand trial but also concluded that "by decree of the Supreme Court" he was therefore competent to represent himself as well. 3/7/02 Tr. at 1-2. The court nonetheless "implore[d]" Ellerbe not to do so and Ellerbe relented. Id. at 2. He consented to be represented by Sussman with the understanding that he would listen to his counsel's advice and not revisit motions the court had already resolved. Trial was scheduled for June 18, 2002.

A few weeks later Ellerbe wrote the court complaining that Sussman would not file motions he wished filed. In response, the court conducted a motions hearing on March 28, 2002 at which Ellerbe stated he was "going to represent [him]self" with Sussman returning to the status of legal advisor. 3/28/02 Tr. at 43. The court reluctantly acceded.

At a final pre-trial hearing on April 25, 2002 the court addressed a claim, proffered by Ellerbe for the first time, that his speedy trial ...

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