United States of America v. Wes Edward Hamman

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
WES EDWARD HAMMAN,
Defendant–Appellant.
No. 17-30176
D.C. 3:16-cr-00185-SI-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted June 6, 2018
Portland, Oregon
Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,** District
Judge.
Indicted for bank robbery, Wes Hamman eventually asked to represent
himself. Pursuant to Faretta v. California, 422 U.S. 806 (1975), the judge held a
hearing, told Hamman of the risks, and then let him. He was convicted. On appeal,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
JUN 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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we address two purported errors in the Faretta hearing. Hamman does not otherwise
dispute that his choice to represent himself was knowing and intelligent: he was
generally informed of the right to counsel, the nature of the charges against him, the
possible penalties, and the dangers of self-representation. See United States v.
Johnson, 610 F.3d 1138, 1144 (9th Cir. 2010); United States v. Erskine, 355 F.3d
1161, 1167 (9th Cir. 2004). Because we consider the legal sufficiency of a Faretta
hearing, our review is de novo. Erskine, 355 F.3d at 1166–67.
1. We reject Hamman’s argument that the Faretta hearing should have
included an explicit inquiry into his competency to represent himself. There may be
room between competency to stand trial and competency to represent one’s self, see
Indiana v. Edwards, 554 U.S. 164, 172–74 (2008), but we see nothing in the record
that would warrant the inquiry Hamman argues was required. Hamman had reported
psychological problems, but he had also been medically evaluated and deemed
competent to stand trial. He expressed himself coherently at the Faretta hearing,
denied mental impairment, and even explained the strategic reason why he wanted
to represent himself: so that he could tell his story in his statements as an attorney
without risking cross-examination as a witness.1 (And Hamman has never claimed
that he actually was incompetent to represent himself.)
1 The judge fully counseled Hamman about the risk of this strategy.

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2. Hamman also argues that the Faretta hearing should have examined
whether he was dissatisfied with his appointed lawyer—already his second—and
whether he wanted a new one. A third lawyer, Hamman claimed after the fact, is
what he had really wanted. But he did not ask for one because, when the judge had
appointed the second lawyer weeks earlier, the judge had warned that he would not
appoint a third.
We reject this argument, too. Hamman explained why he wanted to represent
himself: so he could tell his story without risking cross. He cannot expect the district
court to have intuited that this was really a desire for a new lawyer. If that is what he
wanted, he should have asked. Cf. Bell v. United States, 382 F.2d 985, 986 (9th Cir.
1967) (“If trial counsel desired to do what it is now represented that he wished to do,
he should have made the judge aware of his intention.”). Even if the district judge
had decided that he would not appoint a third lawyer, perhaps circumstances had
changed. And even without changed circumstances, judges are always “free, in the
exercise of sound judicial discretion, to alter” pretrial rulings. Luce v. United States,
469 U.S. 38, 41–42 (1984). The case Hamman cites, United States v. Velazquez,
855 F.3d 1021, 1035 (9th Cir. 2017), is distinguishable because it concerns a judge’s
duty to inquire when she is told of problems in the attorney–client relationship,
which did not happen here.
AFFIRMED.

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