Case: 09-30075 Document: 00511518404 Page: 1 Date Filed: 06/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2011
No. 09-30075 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ELDRIDGE SIMPSON, also known as Woozy,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JOLLY, ELROD, and HAYNES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Eldridge Simpson was indicted for various federal crimes, including, inter
alia, conspiracy to traffic in narcotics, membership in a criminal enterprise,
murder and attempted murder. Simpson was provided two court-appointed
lawyers, Sheila Myers and Julian Murray, but he persistently refused to
cooperate with them. They argued that this behavior demonstrated that he was
incompetent. The district court, after hearing the testimony of several doctors
at five competency hearings, held that Simpson was competent.
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Simpson twice requested the appointment of substitute counsel. The
district court refused to appoint substitute counsel or to allow Myers and Murray
to withdraw, but the district court did appoint Michael Ciaccio as liaison counsel
to help Simpson communicate with Myers and Murray.
Other facts relevant to this appeal include that Simpson’s co-defendant
Terrance Benjamin was facing the death penalty. After a death-qualified jury
had been selected, Benjamin pleaded guilty. Simpson moved to strike the jury,
arguing that because he was a non-capital defendant being tried alone, he could
not be tried by the death-qualified jury. The district court denied his motion, the
case proceeded to trial, and the jury convicted Simpson on all counts. The
district court sentenced Simpson to life imprisonment.
On appeal, Simpson urges us to overturn his conviction, and says that
there are three reasons that we should do so. First, he contends that he was not
competent to stand trial. Second, he argues that his Sixth Amendment right to
effective representation was violated. Third, he argues that he was entitled to
a new round of jury selection after Benjamin pleaded guilty. We find no
reversible error, and we AFFIRM.
I.
On August 10, 2003, Eldridge Simpson was indicted for committing
various crimes, including, inter alia, conspiracy to traffic in narcotics,
membership in a criminal enterprise, attempted murder, and murder.1 On
September 16, Myers and Murray were appointed to defend Simpson, and after
being replaced for a brief period, they were reappointed on October 16.2 Myers
1
After several of Simpson’s co-defendants pleaded guilty, the government filed a
superseding indictment on June 25, 2004. The charges against Simpson remained the same.
2
In the interim, Simpson was represented by Raymond McGuire; McGuire had been
retained by Simpson’s family.
2
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and Murray repeatedly asked the trial court to declare Simpson incompetent,
and, in affidavits, described Simpson’s erratic behavior.3
On March 10, 2005, the trial court held the first of five competency
hearings.4 Dr. Richard Richoux testified that Simpson was unable to assist in
his defense because he had a paranoid distrust of Myers and Murray. Richoux
conceded, however, that Simpson understood the differing responsibilities of the
various players, i.e., the court, the prosecutors, and Myers and Murray. Simpson
refused to cooperate with the government’s expert, Rennie Culver, but Culver
testified, based on a review of Simpson’s file, that Simpson was not mentally ill.
The trial court did not conclude the hearing, so that it later could receive
Simpson’s correctional facility medical records. The hearing resumed on March
14 with testimony from Dr. Michael Higgins. Higgins testified that Simpson did
not need medication, was not suicidal, and was not paranoid. The trial court
initially found that Simpson was competent, but, on April 27, granted a motion
to reconsider and ordered a new competency exam, which was performed by Dr.
Jim Womack at the Federal Medical Center in Fort Worth, Texas.
Womack, in a written report, indicated that Simpson was not mentally ill,
but he acknowledged that his diagnosis was tempered by information that had
been provided by Myers and Murray and by Simpson’s family. Womack testified
in conformity with his report at the second competency hearing, which was held
on July 28. The trial court determined that Simpson was incompetent, and
Simpson was sent to the Federal Medical Center in Butner, North Carolina for
3
The affidavits report, inter alia, that Simpson refused to accept copies of discovery
documents; insisted, in face to face meetings, upon communicating in writing; accused Myers
of breaching confidentiality; rejected Myers’s report that the government had proposed a plea
bargain; and accused Myers of working with the government. The affidavits further report
that this conduct occurred because Simpson feared that other prisoners, believing him to be
a snitch, were eavesdropping on his attorney-client meetings.
4
On November 17, 2004, and January 15, 2005, Simpson had been placed on suicide
watch.
3
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treatment. In February 2006, the Butner staff reported that Simpson was
competent; Simpson stipulated to this report. At a third competency hearing,
held on April 19, the trial court, relying on this report, determined that Simpson
was competent.
In April 2008, Simpson made a second request5 for the appointment of
substitute counsel, arguing that Myers and Murray were ineffective because
they had been unable to have him transferred from St. Charles Jail to St.
Tammany Jail; Simpson had been held at St. Tammany prior to his treatment
at Butner. On April 16, the trial court denied Simpson’s motion, reasoning that
Myers and Murray were experienced trial attorneys who had provided adequate
representation. For some indeterminate period thereafter, Simpson did not
communicate with Myers and Murray. On June 6, Myers and Murray filed a
motion to withdraw, explaining that they were unable to represent Simpson
because he would not communicate with them. The district court denied the
motion, concluding that Simpson was voluntarily refusing to cooperate. On June
16, Myers and Murray renewed the motion, and it was again denied.
On June 9, the trial court held a fourth competency hearing. Dr. Harold
Ginzburg testified that Simpson was paranoid, but said that Simpson’s paranoia
applied only with respect to Myers and Murray. Ginzburg said that he could not
tell whether Simpson was malingering because Simpson was not properly
medicated. Ginzburg also noted that Simpson indicated a willingness to work
with any lawyer other than Myers or Murray. Dr. Culver examined Simpson
and again testified that Simpson was not mentally ill; he further said that
Simpson was capable of communicating with his attorneys but was refusing to
do so. The district court again held that Simpson was competent to stand trial.
5
On April 27, 2005, Simpson had orally requested the appointment of substitute
counsel. The trial court denied the motion, but told Simpson that he could renew the motion
after Womack issued his report. Simpson did not do so.
4
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Voir dire began, and because the government was seeking the death
penalty against Simpson’s co-defendant Terrance Benjamin, jurors were
removed for cause if they indicated an inability or absolute unwillingness to
administer the death penalty. Jurors were also removed for cause if they
indicated an inability or absolute unwillingness to choose life imprisonment as
an alternative to death. On June 20, after the jury had been selected, Benjamin
pleaded guilty, and Simpson moved to strike the jury, arguing that, because he
was a non-capital defendant who would now be tried alone, he could not be tried
by the death-qualified jury. The district court denied Simpson’s motion.
On June 23, the court, prompted by nonsensical notes that Simpson had
written during voir dire, held a fifth competency hearing. Dr. John Thompson
was appointed by mutual consent of the parties; he testified that although
Simpson exhibited some symptoms of paranoia, he was not mentally ill. The
court determined, for the fourth time, that Simpson was competent.
On June 28, the court entered an order appointing Michael Ciaccio to serve
as liaison counsel. Ciaccio met with Simpson, who said that he had lost faith in
Myers and Murray because they repeatedly had called his mental health into
question. Simpson also told Ciaccio that he did not believe that any unpaid
lawyer would provide his best efforts. Immediately before trial, Murray
informed the district court that Ciaccio had spoken with Simpson; Murray
sought permission to put the contents of this conversation on the record.
Honoring this request, the district court, following the first day of trial, allowed
Ciaccio to make his report; after hearing the report, the court discharged Ciaccio.
The jury proceeded to convict Simpson on all counts and the court
sentenced him to life imprisonment. Simpson appeals, arguing that he was not
competent to stand trial; that his Sixth Amendment right to effective
representation was violated; and that he was entitled to have a new jury selected
5
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following Benjamin’s guilty plea. We cannot agree with any of his arguments
and thus affirm his conviction.
II.
A.
Simpson first argues that his conviction must be overturned because he
was not competent to stand trial. We engage in “a species of clear error” when
reviewing a trial court’s competency determination, and, after “re-analyz[ing] the
facts and tak[ing] a hard look at the trial judge’s ultimate conclusion[,]” we will
reverse only if the finding was “clearly arbitrary or unwarranted.” United States
v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003) (internal quotation marks and
citation omitted).
To be deemed competent, the defendant must have “the present ability to
consult with his lawyer with a reasonable degree of rational understanding and
ha[ve] a rational as well as factual understanding of the proceeding[ ] against
him.” Id. A district court can consider several factors in evaluating competency,
including, but not limited to, its own observations of the defendant’s demeanor
and behavior; medical testimony; and the observations of other individuals that
have interacted with the defendant. Id. A defendant who has it “within his
voluntary control to . . . cooperat[e],” is not incompetent merely because he
refuses to cooperate. Id.
Simpson notes that Myers and Murray repeatedly apprised the court of his
inability to communicate, and he says that this inability rendered him
incompetent to stand trial. Simpson also contends that Drs. Richoux and
Ginzburg diagnosed him with paranoia. The government counters that Simpson
was able, but unwilling, to consult with Myers and Murray. The government
further argues that the medical testimony, on balance, demonstrates that
Simpson was not mentally ill, and the government emphasizes that the Federal
Medical Center at Butner discharged Simpson with a clean bill of health.
6
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It is our not our task, as an appellate court, to relitigate the battle of the
experts. Our task is instead to take a “hard look” at the facts to determine
whether the district court’s competency finding was “clearly arbitrary or
unwarranted.” Id. The record demonstrates that the trial court proceeded with
utmost caution. It held five competency hearings and had Simpson evaluated
at two Federal Medical Centers. At least four doctors -- Drs. Culver, Higgins,
Womack and Thompson -- testified that Simpson was not mentally ill, and the
Federal Medical Center at Butner agreed with their conclusion. Finally,
Simpson admitted that he would cooperate with any lawyer other than Myers
or Murray, thereby suggesting that his refusal to communicate was voluntary.
We acknowledge that there is some evidence that suggests that Simpson
was suffering from a mental condition. At times, he behaved irrationally and
Drs. Richoux and Ginzburg testified that he was paranoid. The record also
reveals, however, a great deal of evidence to support a finding that Simpson was
purposefully engaging in manipulative conduct. Simpson had, throughout his
criminal career, demonstrated a flagrant disregard for the mores of organized
society, and the trial court had good grounds to suspect that Simpson was
exaggerating his symptoms to avoid the ultimate consequences of his behavior.
In any event, although Simpson had some symptoms of paranoia, he was
competent because he was able to “consult with” Myers and Murray “with a
reasonable degree of rational understanding” and was able to understand the
proceeding. Id.
Faced with Simpson’s limited and suspicious symptoms, the district court
determined that Simpson was simply refusing to do that which he was
volitionally capable of doing, that is, he was purposefully refusing to
communicate with Myers and Murray. Based on the diligent attention it gave
to Simpson’s “condition” in five separate hearings, the district court was able to
rely on a wealth of information in reaching this conclusion. Indeed, we think it
7
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particularly pertinent that Dr. Thompson testified, on the eve of trial, that
Simpson was competent. See Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir.
1978) (“Medical evidence, such as expert testimony from psychiatrists who have
examined the defendant near the time of trial . . . generally provide[s] sound
material for reconstruction of defendant's mental state.”) The district court’s
competency finding was neither arbitrary nor unwarranted, and we therefore
leave it undisturbed. Joseph, 333 F.3d at 589.
B.
Simpson next argues that he was denied the Sixth Amendment right to
effective representation. In order to succeed on an ineffective assistance claim,
Simpson must establish that his counsel’s performance was deficient, and that
this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687
(1984).
Simpson argues that the representation that he was provided was
constitutionally defective for three independent reasons. First, he says that
because he and his lawyers had a complete breakdown in communication, he was
entitled to have substitute counsel appointed. Second, he argues that because
the nature of Michael Ciaccio’s appointment as liaison counsel was unclear,
especially to him, he was deprived of his right to an unambiguous appointment
of counsel. Third, he contends that he was denied the right to conflict-free
representation because Ciaccio was attempting to serve two masters in his role
as liaison counsel. Except as otherwise noted, we will review these claims de
novo. United States v. Infante, 404 F.3d 376, 391 (5th Cir. 2005) (Sixth
Amendment claims are subject to de novo review).
1.
Although we review Sixth Amendment claims de novo, id., if that
Amendment has not been violated, the trial court’s refusal to appoint substitute
counsel is reviewed for an abuse of discretion. United States v. Young, 482 F.2d
8
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993, 995 (5th Cir. 1973). We have previously stated that substitute counsel
should be appointed only for “good cause,” which includes a “complete breakdown
in communication[.]” Id. We will assume that a complete communication
breakdown occurred here. It is not disputed that, for whatever reason, Simpson
refused to communicate with his attorneys. The question, then, is whether
Simpson’s refusal to communicate with Myers and Murray requires us to reverse
his conviction.
In Young the question was whether a defendant’s “distrust of his
appointed counsel made effective representation . . . impossible.” Id. at 996. We
affirmed the trial court’s refual to appoint substitute counsel but, in so doing, we
noted that there was “[n]o contention . . . that [the defendant] refused to consult
with” his lawyer. Id. Although this language may seem to imply that a
defendant’s refusal to communicate requires the appointment of substitute
counsel, Young did not reach that conclusion; as suggested by the operative
language itself, that issue was not before the court. See id.
Simpson refers us to other circuits for support of his position. Those
circuits have found complete communication breakdowns where a defendant’s
repeated efforts failed to establish contact with his attorney, United States v.
Lott, 310 F.3d 1231, 1249 (10th Cir. 2002), and where the attorney had no
communication with the defendant in the month preceding trial. United States
v. Mullen, 32 F.3d 891, 896-97 (4th Cir. 1994).
Simpson argues that Lott and Mullen demonstrate that a defendant who
is unable to communicate with his lawyer is entitled to the appointment of
substitute counsel; thus reversal is appropriate here because his paranoia made
it impossible for him to communicate with Myers and Murray. The government
responds that both cases are distinguishable; it argues that reversal is
inappropriate when the breakdown can be attributed to the defendant’s
intransigence, and not to the neglect of defense counsel or the trial court.
9
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We agree with the government’s view of these cases. In Lott, the
defendant’s attorney did not respond to the defendant’s letters and seemed to
ignore the defendant altogether. 310 F.3d at 1237-38. Here, the facts are
markedly different: Myers and Murray repeatedly tried to communicate with
Simpson only to be stonewalled, and Simpson has not intimated that either
Myers or Murray failed to respond to any of his inquiries. In Mullen the
defendant requested that the lawyer hired by her family be replaced with
appointed counsel, but on the day of trial she was required to choose between
either proceeding pro se or with the retained lawyer. 32 F.3d at 894. She
“reluctantly” chose to proceed pro se, and she “presented no evidence, and made
no closing argument.” Id. at 894-95. Again, the facts in Mullen bear scant, if
any, resemblance to the facts of the case today. Here, Raymond McGuire, the
retained lawyer, was actually replaced in the early stages of the proceedings.
Simpson was never required to proceed pro se. Myers and Murray offered him
continuing availability of able advocacy that he continually refused to accept.
As Simpson acknowledges, the breakdown of attorney-client
communications is intertwined with the competency issue. Simpson was the root
cause of the communication problem. Because he was adjudged competent, it is
reasonable to conclude that he was capable of cooperating with his lawyers, and
was only engaging in a ruse, at least in part, to “demand a different appointed
lawyer.” Young, 482 F.2d at 995. We cannot find “good cause” to appoint
substitute counsel where none exists. See id. Simpson admitted that he was
willing to cooperate with any lawyer other than Myers or Murray. Under the
facts before us, neither the Sixth Amendment nor our precedent suggests that
Simpson was entitled to the appointment of substitute counsel.6
6
We recognize that the Ninth Circuit has held that “to compel one charged with
grievous crime to undergo a trial with the assistance of an attorney with whom he has become
embroiled in irreconcilable conflict is to deprive him of . . . effective assistance.” Brown v.
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2.
We now turn to Simpson’s argument that Ciaccio's appointment violated
his right to a "clear and unambiguous" appointment of counsel. The Supreme
Court long ago held that the Sixth Amendment is violated if the “designation of
counsel . . . [is] so indefinite . . . as to amount to a denial of effective and
substantial aid . . .” Powell v. Alabama, 287 U.S. 45, 53 (1932).7 Applying this
standard, the Court found constitutional infirmity in the trial court’s decision to
wait until the day of trial to appoint trial counsel, noting that, although the
entire bar had, without any further specification, previously been appointed to
represent the defendants, the individual members of the bar “would not, thus
collectively named, have been given that clear appreciation of responsibility or
impressed with that individual sense of duty which should and naturally would”
result from a proper appointment. Id. at 56. Simpson argues that because
Ciaccio’s appointment occurred almost immediately before trial, it resembles the
last-ditch appointment in Powell.
As we have earlier said, during the weekend immediately preceding trial
the district court appointed Michael Ciaccio to act as liaison counsel, i.e., to
facilitate Simpson’s communications with his primary lawyers, Shelia Myers and
Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). The error in Brown, however, was that the trial
court “did not . . . take the necessary time and conduct such necessary inquiry as might have
eased Brown’s [that is, the defendant’s] dissatisfaction, distrust, and concern.” See id. The
point, in other words, is that the district court must at least consider whether a defendant’s
concern with his lawyer is justified. Here, as we have said, the district court paid close
attention to the supposed source of Simpson’s communication barrier, holding repeated
hearings to determine whether Simpson was capable of communicating with Myers and
Murray.
7
Although Simpson cites to cases other than Powell, those cases merely reaffirm the
principle iterated in Powell, i.e., it is error if a trial court waits until the eleventh hour to
appoint counsel. See, e.g., United States ex rel. Washington v. Maroney, 428 F.2d 10, 13-14 (3d
Cir. 1970).
11
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Julian Murray.8 He complains, however, that the trial court did not adequately
explain Ciaccio’s role, thereby confusing him and undermining his already rocky
relationship with Myers and Murray. He thus contends that Ciaccio’s
appointment was like the appointment in Powell, “indefinite.” The government
responds that Powell is inapposite, as Myers and Murray represented Simpson
for over six years; unlike the Powell defendants, he was not left in the lurch.
See id.
We think the government is correct. Ciaccio’s appointment does not
resemble the appointment in Powell. Simpson was indicted in August 2003, and
Myers and Murray were appointed in September 2003. Thereafter, with one
brief period of interruption, Myers and Murray represented Simpson for more
than five years. Thus, although Ciaccio was appointed on the eve of trial,
Simpson was long represented by two attorneys; in contrast, none of the Powell
defendants were represented in any concrete sense until the day of trial. See 287
U.S. at 53. Furthermore, the district court made Ciaccio’s role plain, explaining
that he was appointed solely to facilitate communication, and not to try the case.
We hold that Ciaccio’s appointment was not ambiguous or indefinite.
3.
Simpson further argues that Ciaccio was hampered by a conflict of
interest, and therefore was unable to provide effective representation. We turn
now to address that argument. The Supreme Court has held that a lawyer’s
conflict of interest may be so flagrant as to constitute a violation of the Sixth
8
By way of background, the district court appointed Ciaccio in response to the repeated
concerns voiced by Myers and Murray relating to Simpson’s refusal to communicate with
them. Thus, although the district court refused to replace Myers and Murray, it did not ignore
their concerns regarding communication; it appointed Ciaccio precisely to address these
concerns. Ciaccio was appointed late on the Friday night immediately preceding trial, i.e., on
June 27. The order appointing Ciaccio provided that he was to begin serving as liaison counsel
on June 28. The order further provided that Ciaccio was appointed “to serve as liaison counsel
between Eldridge Simpson and his counsel.” The trial began on June 30.
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Amendment. Holloway v. Arkansas, 435 U.S. 475, 484 (1978). In Holloway the
Court reversed the conviction because the trial court failed properly to consider
an objection to a conflict inherent in the joint representation of two defendants
who had divergent interests. Faced with this glaring error, the Court saw no
need to determine “how strong a showing of conflict” must be made to compel
reversal of a conviction. Id. at 483-84.
The Court has subsequently clarified that “a reviewing court cannot
presume that the possibility for conflict has resulted in ineffective assistance of
counsel” unless the trial court refuses to grant “a defendant who objects to
multiple representation . . . the opportunity to show that potential conflicts
impermissibly imperil his right to a fair trial.” Cuyler v. Sullivan, 446 U.S. 335,
348 (1980)(emphasis added). Prejudice is nonetheless presumed, even absent a
timely objection, if the defendant shows on appeal “that an actual conflict of
interest adversely affected his lawyer’s performance.” Id. Simpson did not
object to Ciaccio’s appointment and our analysis is therefore two-fold. We first
ask whether Ciaccio was conflicted. If our answer is affirmative, then we will
address whether the conflict actually affected Ciaccio’s performance.
Simpson’s argument appears to be that Ciaccio was simultaneously
representing two “clients”: the court and Simpson. Simpson acknowledges that
Ciaccio was ostensibly appointed to serve as liaison counsel, but he argues that
Ciaccio was actually appointed to serve as a court-appointed investigator. He
bases this argument on two separate events. First, he notes that the trial court
said that Ciaccio would not be responsible for “any actions taken during the
course of the trial.” Second, Simpson points out that Ciaccio was advising -- and
thus, the argument goes, representing -- the trial court when he reported that
Simpson was willing to work with any lawyer other than Myers or Murray.
With respect to Simpson’s first point: Although the trial court stated that
Ciaccio would not be responsible for actions taken during the course of trial, this
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statement merely clarified Ciaccio’s role as liaison counsel, i.e., it made clear
that Ciaccio was appointed not to try the case but to help Simpson communicate
with Myers and Murray.
We now turn to the second point, but before addressing Simpson’s
complaint about the trial court’s questioning of Ciaccio, it may be helpful to once
again set out the pertinent facts. As we have said, Ciaccio began his role as
liaison counsel on Saturday, June 28, and met with Simpson twice over the
course of the weekend. Simpson’s trial began on June 30. Immediately before
the jury was seated, the trial court noted its understanding “that Simpson’s
attorneys wanted to address the court before the jury came in.” In response,
Julian Murray -- who was Simpson’s lawyer -- said: “[W]e do have Mr. Ciaccio
in court. He did go and speak with Mr. Simpson [on] two different occasions over
the weekend. We would like to make a note of [the] evidence as to what took
place in that regard, whenever it is convenient to the court . . . .” Murray also
said that “we won’t try to take up the court’s time [with this] now[,]”
(presumably because the proceedings were already behind schedule due to a
delay in transporting Simpson to the courtroom). Then, after the jury had been
excused for the day, the district court promptly revisited the matter, reminding
Murray that the defense had previously indicated that it “wanted to make a note
of record concerning the second lawyer that we appointed to try to assist you all
with communicating with Mr. Simpson.” Murray confirmed that the defense
still wanted to make this report. Thus, the record clearly shows that the trial
court’s questioning about which Simpson complains took place only after
Simpson’s lawyers requested it. Moreover, the district court emphasized that
Ciaccio should not discuss “any details of [Simpson’s] defense.” Ciaccio reported
that Simpson had indicated a willingness to cooperate with any lawyers other
than Myers and Murray. The trial court then dismissed Ciaccio, presumably
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because it determined that responsibility for any communication problems lay
with Simpson.
We are convinced that Ciaccio was not hampered by any conflict of
interest. Although the trial court strictly limited the role of Ciaccio’s
appointment, this limitation was reasonable because Simpson was already
represented by two capable attorneys. Moreover, the district court questioned
Ciaccio only after being requested to do so by Julian Murray, Simpson’s attorney.
The trial court did not err in appointing Michael Ciaccio.
C.
Finally, Simpson argues that his constitutional rights were violated when
the trial court refused to strike the death-qualified jury after Terrance Benjamin
pleaded guilty. As we have earlier set out, Simpson was initially a co-defendant
of Benjamin, against whom the government sought the death penalty. Benjamin
pleaded guilty after the jury had been selected, leaving Simpson to be tried by
a death-qualified jury. In reviewing a district court’s denial of a motion to strike
a jury venire, this court reviews factual findings for clear error and conclusions
of law de novo. United States v. Alix, 86 F.3d 429, 434 (5th Cir. 1996). We will
assume that we should apply this standard to the slightly different situation
here, where Simpson moved to strike a jury that had already been selected.9
Simpson argues that, except in limited circumstances not present here, the
death-qualification process violates the Fifth and Sixth Amendments. He
further urges that death-qualified juries are constitutionally infirm because they
are not drawn from a fair cross-section of the community and are not impartial.
Finally, he urges us to hold that a death-qualified jury can serve only if one or
more defendants face the death penalty at the time the jury is sworn.
9
Although it seems arguable to us that the trial court should be granted additional
deference when it decides whether to strike a jury that has already been selected, the parties
have not briefed this issue, and we decline to decide it sua sponte.
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“The Sixth Amendment and the Due Process Clause of the Fifth
Amendment require that a jury be drawn from a fair cross-section of the
community.” United States v. Williams, 264 F.3d 561, 567 (5th Cir. 2001)
(internal quotation marks and citation omitted). Similarly, the Sixth
Amendment entitles criminal defendants to an impartial jury, but “[t]he
Constitution presupposes that a jury selected from a fair cross section of the
community is impartial, regardless of the individual viewpoints actually
represented on the jury, so long as the jurors can conscientiously and properly
carry out their sworn duty to apply the law to the facts of the particular case.”
Lockhart v. McCree, 476 U.S. 162, 184 (1986). “To establish a prima facie
violation” of the fair cross-section requirement, a defendant must show among
other matters, “that the group alleged to be excluded is a distinctive group in the
community.” Williams, 264 F.3d at 568 (internal quotation marks and citation
omitted). Death penalty opponents are not a “distinctive group,” and “death
qualification does not violate the fair-cross-section requirement.” See Lockhart,
476 U.S. at 177 (internal marks omitted); see also Kelly v. Lynaugh, 862 F.2d
1126, 1135 (5th Cir. 1988)(same).10
Simpson argues, however, that the foregoing precedent does not directly
answer the question before us; indeed, he says that this is a question of first
impression. He acknowledges that the Supreme Court has held that the use of
a death-qualified jury in the joint trial of a capital and non-capital defendant
does not violate the fair cross-section requirement or the impartiality
requirement. Buchanan v. Kentucky, 483 U.S. 402, 416-20 (1987). He argues,
10
Simpson insists that a disproportionate number of women and racial minorities are
removed during the death-qualification process. We need not decide whether he is correct,
because the fair cross section requirement is not violated when jurors are removed because of
their death penalty views, regardless of their ethnicity or gender. See Lockhart, 476 U.S. at
175-76 (distinguishing the removal of jurors based on “immutable characteristics” from the
removal of jurors based upon “attribute[s] . . . within the individual’s control.”).
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however, that Buchanan’s reasoning -- that there is a significant governmental
interest in judicial efficiency, which is furthered by presenting the same evidence
to one jury instead of two juries -- is inapposite here, because selecting a new
jury would have caused only a slight delay. See id. He contends that, absent a
significant interest, the government cannot try a non-capital defendant before
a death-qualified jury. Finally, Simpson insists that no court has ever held that
a non-capital defendant being tried alone can be tried by a death-qualified jury.
He presses us to establish a bright-line rule: that death-qualified juries can
serve only if one or more defendants face the death penalty at the time the jury
is sworn. See United States v. Causey, 185 F.3d 407, 430 (5th Cir. 1999)
(DeMoss, J., concurring in part and dissenting in part) (“Surely if a noncapital
defendant were being tried separately, the government could not exclude jurors
for cause on the grounds of their opposition to the death penalty . . . .”)
In response, the government first notes Lockhart’s holding that death-
qualification does not violate the fair cross section requirement. 476 U.S. at 177.
The government also argues that this court presumes “that jurors understand
and follow their instructions,” and that we abandon this presumption only if
“there is an overwhelming probability that the jury will be unable to follow the
instruction[s] and there is a strong possibility that the effect is devastating.”
United States v. Patino-Prado, 533 F.3d 304, 313 (5th Cir. 2008) (internal
quotation marks and citation omitted).
We again emphasize that at the time Simpson’s jury was death-qualified,
Simpson was slated to be tried along with a capital defendant, Terrance
Benjamin. Although Simpson relies heavily on Buchanan, Buchanan makes
clear that when two defendants -- one capital, the other non-capital -- are being
tried together, death-qualification is permissible. 483 U.S. at 416. The Court
reasoned that in a capital case the exclusion of jurors that would refuse to
administer the death penalty “is related to the . . . legitimate interest in
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obtaining a jury that does not contain members who are unable to follow the
law . . . .” Id. Thus, Buchanan ratified the initial process that took place here.
The question, then, is whether Benjamin’s guilty plea changes the analysis such
that we should establish a new categorical rule.11 To answer that question, we
return to two well-established rules of law that we have discussed above.
First, courts have repeatedly held that death-qualified juries do not violate
the fair cross-section requirement and, given the foregoing, we decline to create
an exception to that rule now. See, e.g., Lockhart, 476 U.S. at 177. Second, we
presume, absent evidence to the contrary, that jurors will follow their
instructions. Patino-Prado, 533 F.3d at 313. Simpson does not argue that the
jurors were improperly instructed, and he has failed to introduce any compelling
evidence to defeat the presumption that the instructions were followed; he
instead relies on studies of a genre that has been rejected by the courts, that is,
studies that show that death-qualified juries are somehow tainted with a fixed,
pro-conviction, mindset. See Lockhart, 476 U.S. at 171-73. If we momentarily
assume that jurors who favor the death penalty are, by nature, more favorable
to the government, it seems to us that logical consistency would require us
further to assume that jurors who oppose the death penalty may be more
favorable to the defense. Faced with this assumed dichotomy, when the
respective challenges are granted, we are left with a middle class of jurors, who
11
Because the issue of prosecution manipulation of the plea-bargaining process to
achieve the outcome of trying Simpson before a death-qualified jury is nowhere to be found in
this case, we obviously express no opinion on how or whether the outcome here might have
been different had that issue been presented.
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are supposedly impartial and fair. See id.12 It was this “middle class” of jurors
that convicted Simpson.
In the light of the foregoing, we hold that when one or more joint
defendants face the death penalty at the time the jury is selected, death-
qualification is constitutionally permissible, and we further hold that if all of the
capital defendants plead guilty following voir dire, the trial court need not -- but
of course may -- allow a new jury to be selected.13
III.
We recap the opinion: Eldridge Simpson appeals his conviction for
narcotics-related offenses, murder, and attempted murder. Simpson says that
12
Simpson identifies fifteen jurors that he says were removed because of their inability
or unwillingness to administer the death penalty. The government, at oral argument,
countered -- and the record demonstrates -- that Simpson, working in tandem with his
co-defendant Terrance Benjamin struck for cause at least sixteen prospective jurors who
indicated that they were unwilling to substitute life imprisonment as an alternative to the
death penalty.
13
Simpson also argues, for the first time on appeal, that death-qualification is improper
in federal prosecutions because Congress has not enacted authorizing legislation. As this
argument was not raised below, we consider it under the plain error prism. United States v.
Franco, 632 F.3d 880, 884 (5th Cir. 2011). Error is plain when it "is clear or obvious and . . .
affects . . . substantial rights." Id. If there is plain error, we have "the discretion to correct
the error if it seriously affects the fairness, integrity, or public reputation of the judicial
proceedings." Id. The trial court did not err -- much less plainly err -- by removing for cause
jurors that indicated an inability or absolute unwillingness to administer the death penalty.
It merely followed the Supreme Court's admonition that“a juror who in no case would vote for
capital punishment, regardless of his or her instructions . . . must be removed for cause.”
Morgan v. Illinois, 504 U.S. 719, 728 (1992) (emphasis added).
Finally, Simpson briefly raises two additional arguments which we summarize here;
both are foreclosed by Morgan. First, he says that because voir dire is the juror's first
introduction to the case, the death-qualification process impermissibly taints the proceedings,
but voir dire is the appropriate time to remove jurors “who in no case would vote for capital
punishment . . . .” See id. at 728-29. Simpson also argues that death-qualification violates
jurors’ due process rights to serve. See Strauder v. West Virginia, 100 U.S. 303, 310 (1880).
This court has recognized, however, that only “qualified” jurors are entitled to serve. Labat
v. Bennett, 365 F.2d 698, 711 (5th Cir. 1966). A juror is not qualified if his death penalty
“views would prevent or substantially impair the performance of his duties as a juror.”
Morgan, 504 U.S. at 728-29 (internal quotation marks and citation omitted).
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he was not competent to stand trial, that substitute counsel should have been
appointed to represent him, and that after his co-defendant Terrance Benjamin
pleaded guilty, a new jury should have been selected. We have rejected all three
arguments.
The trial court paid close attention to Simpson’s competency; it held five
hearings, and had him evaluated by two Federal Medical Centers. Four doctors
indicated that Simpson was not mentally ill, as did the Federal Medical Center
in Butner, North Carolina. On the basis of this well-developed record, we have
held that the trial court did not err in finding Simpson competent to stand trial.
For similar reasons, we have held that Simpson was not entitled to the
appointment of substitute counsel. Simpson, we hold, intentionally refused to
cooperate with his able and diligent court-appointed lawyers, Sheila Myers and
Julian Murray. Just as he was competent to stand trial, he was capable of
cooperating with his lawyers, and he was given ample opportunity to
communicate with them; he simply refused to do so. For this reason, we cannot
find a Sixth Amendment violation, or any abuse of discretion, in the trial court’s
failure to appoint substitute counsel. We have also rejected Simpson’s
arguments that Michael Ciaccio’s role as liaison counsel was unclear and that
Ciaccio was really a servant of the district court. The record shows that the
district court, in keeping with its careful management of this case, appointed
Ciaccio to help Simpson communicate with Myers and Murray, that the district
court adequately explained what Ciaccio’s role was, and that the district court
did not interfere with the attorney-client relationship.
Finally, Simpson insists that we should create a new rule limiting the use
of death-qualified juries to cases in which one or more defendants face the death
penalty at the time the jury is sworn. We have declined his invitation. Although
Simpson was tried alone and was not facing the death penalty he was at the
time of jury selection slated to be tried alongside Terrance Benjamin, who was
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No. 09-30075
facing the death penalty, and the jury had already been selected at the time
Benjamin entered his guilty plea. Moreover, Simpson does not allege that the
jury instructions were deficient, and he has not rebutted the presumption that
the jury properly applied its instructions.
Finding no reversible error, the judgment of the district court is, in all
respects,
AFFIRMED.
21