Firearm conviction, criminal contempt upheld for defendant who proceeded pro se

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A defendant who unsuccessfully defended himself in federal court and who was found in criminal contempt for refusing to answer a prosecutor’s question did not find any relief from his firearm conviction or the contempt finding at the 7th Circuit Court of Appeals.

Defendant-appellant Henry Underwood was indicted in 2020 on a charge of being a felon in possession of a firearm after a 2019 shooting in Fort Wayne. Police had discovered a loaded gun under Underwood’s seat in a vehicle suspected to have been at the scene, and ammunition was also recovered.

Underwood was appointed counsel, but his attorney withdrew several months before trial, citing differences of opinion. He requested to proceed pro se, and after questioning by the magistrate judge, he was permitted to do so.

“Representing himself, Underwood actively participated in pretrial proceedings, filing and responding to motions and issuing subpoenas,” according to the 7th Circuit. “At trial, he cross-examined witnesses and called several others on his own behalf while regularly conferring with standby counsel.”

One issue at trial was whether Underwood actually had a gun at the December 2019 shooting. Taking the stand in his own defense, he claimed someone else had possession of it.

But when the prosecutor asked Underwood on cross-examination the name of the person who had the gun, he refused to answer, pleading the Fifth.

The judge informed Underwood that the Fifth Amendment did not protect him from incriminating someone else, and he was warned that refusing to answer could result in criminal contempt. But Underwood continued to refuse to provide a name.

The jury ultimately found him guilty, and the district judge issued a contempt order. He was sentenced to eight years for the firearm offense plus an additional six months for criminal contempt.

On appeal to the 7th Circuit, Underwood first argued that he did not knowingly and voluntarily waive his right to counsel.

The appellate court disagreed.

“Here, the magistrate judge’s inquiry, though not as thorough as it might have been, adequately informed Underwood of the dangers of self-representation,” Judge Amy St. Eve wrote Monday in United States of America v. Henry Underwood, 23-1303. “It would have been preferable for the magistrate judge to have reiterated the penalties Underwood faced to underscore the gravity of his decision.

“Nevertheless, the magistrate judge did warn Underwood that proceeding pro se ‘is nearly always unwise,’ that he ‘may conduct a defense to [his] disadvantage,’ that the government had professional attorneys, and that he too could have a knowledgeable and professional attorney,” St. Eve continued. “He also admonished Underwood that he would not be treated more leniently or held to a different standard with respect to rules of law and procedure simply because he was representing himself, and he would be expected to know and comply with those rules.”

The 7th Circuit further rejected Underwood’s argument that the district court should have listed specific defenses for him, finding Von Moltke v. Gillies, 332 U.S. 708, 724 (1948), did not require the court to do so.

But the appellate court added, “Although not mandated for a (Faretta v. California, 422 U.S. 806, 807 (1975)) colloquy, we remind judges that the Benchbook for United States district court judges provides the relevant questions and topics about which criminal defendants seeking to represent themselves should be informed. … We encourage presiding judges to rely on this list of questions as a guide.”

Aside from the magistrate’s formal inquiry, the 7th Circuit also determined that evidence of Underwood’s understanding, his background and experiences, and his reason for waiving his right to counsel support a finding that he knowingly and voluntarily waived that right.

Underwood also appealed the district court’s summary disposition of criminal contempt, but the appellate court upheld that disposition under Federal Rule of Criminal Procedure 42(b).

“Because Underwood improperly refused to testify on cross-examination in the judge’s presence, the literal requirements of Rule 42(b) are met,” St. Eve wrote. “He already had waived his Fifth Amendment right against self-incrimination by choosing to testify. Once he took that step, he could not validly refuse to answer questions relevant to his testimony, including the prosecutor’s question about the name of the person he claimed had the gun that day in December 2019.

“… Even if Underwood could have invoked his Fifth Amendment right against self-incrimination here, he repeatedly admitted the answer he refused to give would not incriminate himself,” St. Eve continued. “The answer, he explained, might incriminate someone else instead, and he refused to be a ‘snitch.’ But the Fifth Amendment does not protect against incriminating others; when properly invoked, it only shields the witness from being forced to testify to relevant information that might be self-incriminating.

“… The district court judge warned Underwood multiple times of the consequences he might face if he continued to refuse to answer the question, including the possibility of criminal contempt, fines, and a sentence of up to six months,” the 7th Circuit concluded. “In the context of summary contempt, due process requires no more.”

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