United States of America v. Ronald Lbrekke

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Cormac J. Carney, District Judge for the U.S. District**
Court for the Central District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD L BREKKE,
Defendant - Appellant.
No. 12-30221
D.C. No. 2:10-cr-00328-JCC-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted June 4, 2013
Seattle, Washington
Before: McKEOWN and IKUTA, Circuit Judges, and CARNEY, District Judge.**
Defendant Ronald Brekke appeals his conviction and sentence for one count
of conspiracy to commit theft of public money in violation of 18 U.S.C. § 371, and
three counts of wire fraud in violation of 18 U.S.C. § 1343. We affirm his
FILED
JUN 11 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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conviction, but vacate the conditions of supervised release requiring him to abstain
from consuming alcohol and to avoid places where controlled substances are
illegally used or sold.
The district court did not err in concluding that Brekke had not
unequivocally waived his right to counsel and in declining to hold a second Faretta
hearing. Throughout the pre-trial proceedings, Brekke made repeated,
contradictory statements about whether he wished to have the assistance of
counsel. These statements did not amount to an “explicit choice between
exercising the right to counsel and the right to self-representation” and were not
sufficient to allow a district court to be “reasonably certain” that Brekke
affirmatively waived his right to counsel. United States v. Arlt, 41 F.3d 516, 519
(9th Cir. 1994). Because Brekke did not make an “unequivocal request to proceed
pro se,” he was not entitled to a Faretta hearing. United States v. Farias, 618 F.3d
1049, 1051–52 (9th Cir. 2010). Nor did Brekke have a right to hybrid
representation. United States v. Olano, 62 F.3d 1180, 1193 (9th Cir. 1995).
The district court did not abuse its discretion in denying Brekke’s motion to
substitute counsel. The court conducted a full ex parte hearing in September 2011
during which both parties aired their grievances with one another. This inquiry
“provide[d] a sufficient basis” for the court to reach an “informed decision” about

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the nature of the conflict between the parties, United States v. Adelzo-Gonzales,
268 F.3d 772, 777 (9th Cir. 2001), and to conclude that the relationship was
workable. The district court likewise did not err in failing to hold a second ex
parte hearing in February 2011, because by then it had a lengthy record of motions
and hearing transcripts on the issue of Brekke’s representation. A district court
need not conduct a hearing where the record already provides the basis for an
informed judgment. United States v. Smith, 282 F.3d 758, 764 (9th Cir. 2002).
The district court made a reasonable assessment of the nature of the conflict
between client and counsel, and its determination that the relationship remained
workable was not an abuse of discretion, particularly since the conflict was largely
the product of Brekke’s own unreasonableness and manufactured discontent. See
United States v. Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir. 2009).
The district court did not plainly err in admitting certified contemporaneous
recordings of the date and time Brekke crossed into and out of the United States.
These certified border-crossing records, are “routine, objective cataloging of an
unambiguous factual matter,” United States v. Berry, 683 F.3d 1015, 1022 (9th Cir.
2012) (internal quotation marks omitted), that are not created in anticipation of
litigation, and therefore do not raise Confrontation Clause concerns. United States
v. Orzoco-Acosta, 607 F.3d 1156, 1163 (9th Cir. 2010).

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The district court’s instructions to the jury during the forfeiture phase of the
trial did not violate Brekke’s due process rights. The comments did not distort or
add to the evidence presented at trial, United States v. Coutchavlis, 260 F.3d 1149,
1156 (9th Cir. 2001), nor did they create an appearance of partiality or advocacy on
behalf of one of the parties. United States v. Mostella, 802 F.2d 358, 361 (9th Cir.
1986). Even if the district court had erred in indicating that the forfeiture hearing
was “straightforward” and “shouldn’t take very long,” any error did not affect
Brekke’s substantial rights in light of the overwhelming evidence regarding the
illicit source of the funds in his PayPal account. United States v. Ameline, 409
F.3d 1073, 1078 (9th Cir. 2005) (en banc).
The district court did plainly err, however, in imposing conditions of
supervised release requiring Brekke to abstain from the consumption of alcohol
and requiring him to avoid places where controlled substances are illegally used or
sold. Neither condition bears a reasonable relationship to Brekke’s characteristics,
the nature of his offense, or “to the risk that [Brekke] would return to his criminal
behavior,” United States v. Napulou, 593 F.3d 1041, 1045 (9th Cir. 2010), and the
record does not indicate any “individualized consideration” supporting their
imposition. United States v. Betts, 511 F.3d 872, 878 (9th Cir. 2007). Brekke’s
failure to cooperate with the probation office, without more, does not meet the

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government’s burden of proving by a preponderance of the evidence that a
particular condition of supervised release is necessary. Id. at 881 (citing United
States v. Weber, 451 F.3d 552, 558–59 (9th Cir. 2006)). Accordingly, we vacate
those conditions.
AFFIRMED IN PART; VACATED IN PART.

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