Case: 12-13651 Date Filed: 04/02/2014 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13651
________________________
D.C. Docket No. 1:10-cr-20848-CMA-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE TALLEY, JR.,
MARCUS TALLEY,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(April 2, 2014)
Before ANDERSON and GILMAN,* Circuit Judges, and JOHNSON,** District
Judge.
____________
*Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
**Honorable Inge Prytz Johnson, United States District Judge for the Northern District of
Alabama, sitting by designation.
Case: 12-13651 Date Filed: 04/02/2014 Page: 2 of 19
PER CURIAM:
In this two-defendant criminal appeal, Appellants Marcus and Eddie Talley
raise thirteen issues between them. We reject all of them and affirm their
convictions and sentences.
The premise of the prosecution was that Appellant Marcus Talley recruited
young men to rob banks in order to fund his Urban Guerilla Syndicate (“UGS”).
Marcus told the young men that the UGS’s objective was to take over the
government because African-Americans were not treated right. Robbing banks
would fund the movement; Marcus told the young men that snitches “would get
handled,” which one of the young men took to mean they would be killed. Marcus
told one of these robbers-turned-witnesses that UGS needed money to hire
lawyers, judges, and crooked cops to help UGS members who were arrested. There
was substantial evidence of Eddie’s participation in the bank robberies – i.e., from
the testimony of the three cooperating coconspirators, and from evidence obtained
in a search of Eddie’s residence (“the Mansion”). Eddie himself also testified.
A search of the Mansion pursuant to a search warrant recovered PVC pipe
parts, spools of different colored wires, several magazines and boxes of
ammunition for different types of firearms, a loaded handgun, and two gun boxes.
Another search turned up “Fast Orange” hand cleanser, like the type Eddie used to
remove dye from Jeffrey St. Louis’s hands after the Bank of America robbery.
2
Case: 12-13651 Date Filed: 04/02/2014 Page: 3 of 19
After Marcus was arrested and while he was being held in an interrogation room,
he talked to the detective, Robert Lanier, who was “babysitting” him. Marcus told
Lanier about his belief that the banks were in control of the United States and how
he recruited youths already involved in petty crime to rob the banks. He said he
wanted to take over the United States and the way to do that was to take over the
banks.
After Marcus’s attorney questioned Marcus’s competency to stand trial, the
Magistrate Judge ordered an evaluation and held an evidentiary hearing. Marcus
claimed to be the Messiah and denied the court’s jurisdiction at his pretrial
detention hearing. The Government filed reports of Dr. Lisa Feldman based on her
evaluation and review of his records. Marcus was treated in 1992, when his family
had him committed for what Dr. Feldman considered substance-induced psychosis.
In 1996, Marcus told several doctors and family members that it was revealed to
him that he was the Messiah. He was diagnosed over the next ten years by various
psychologists and psychiatrists with paranoid schizophrenia. He was found
incompetent in 1998, and in 1999, Dr. James Larson concluded that “[t]he
prognosis is for a life-long course of mental illness and gradual deterioration over
time.” He was released from medical custody in 2007 although Dr. Larson
acknowledged at the time that Marcus might not be delusional. Most of the
previous explorations of Marcus’s mental health had been conducted in the context
3
Case: 12-13651 Date Filed: 04/02/2014 Page: 4 of 19
of previous criminal charges against Marcus.
Dr. Feldman testified that she performed psychological tests that indicated
Marcus suffered from no cognitive impairment and the results were consistent with
malingering. She also stated, though, that the symptoms he exhibited were a
product of his personality disorder. She challenged the conclusions in the medical
history during the 10-year period of diagnosed incompetency, stating that Marcus
“appreciates” that maintaining his Messiah stance was his best option for being
released. In his 1997 and 2007 evaluations, there were statements that he might be
attempting to present himself as being in more psychological distress than he was
actually in. She further cited evidence dating back to 1992 indicating that his
behavior was due to cocaine use and not mental illness; subsequent evaluations
merely re–referenced his behavior without distinguishing its possible causes.
Further, she noted that Marcus did not persist in his messianic claims when talking
to non-mental health evaluators. She faulted earlier evaluations for failing to
address findings that he understood the charges against him. She also cited his
recorded conversation with his wife in 2010 where he referred to himself by his
proper name and gave cogent instructions on how to assist with his legal defense.
Finally, she pointed to his instructions to others to “act crazy” to avoid prison.
At the hearing, police officer Lanier testified that Marcus appeared calm
and intelligent and never referred to himself as the Messiah, Jesus Christ, a savior,
4
Case: 12-13651 Date Filed: 04/02/2014 Page: 5 of 19
or a deity. However, Lanier also testified that he thought that Marcus should be
“Baker Acted,” meaning involuntarily committed because he was not being
rational. After the hearing, the Magistrate Judge issued a report, finding that
Marcus “has a rational as well as factual understanding of the proceedings against
him and that he has a sufficient present ability to consult with his attorney within a
reasonable degree of rational understanding.”
The district court, Judge Jordan, ordered another competency evaluation and
held an additional hearing. The new evaluator, Dr. Richard Frederick, wrote that
there was no “compelling evidence to support a conclusion that he has ever had
any active mental disorder since the time of his original prosecution in 1996/97.”
Dr. Frederick testified that Marcus’s schizophrenia diagnosis could be explained
by cocaine use and was never seriously re-examined. He noted that Marcus’s
outbursts were nothing remarkable and that he seemed to consult with his lawyer in
a cooperative manner. At the hearing, Marcus stated that the hearing was not
necessary and expressed his desire to present the truth about the oppression of
African-Americans that led to his understanding that he was the Messiah. The
district court agreed with the Magistrate Judge’s report, crediting the new
evaluator’s testimony that Marcus was malingering and concluding that Marcus
was competent.
On March 1, 2012, the case was transferred to Judge Altonaga. Judge
5
Case: 12-13651 Date Filed: 04/02/2014 Page: 6 of 19
Jordan’s ruling came out two weeks later and Judge Altonaga did not order a new
competency ruling. On March 22, Judge Altonaga held a hearing on Marcus’s
motion for a continuance. At the hearing, Marcus asked to dismiss his attorney
and proceed pro se. Defense counsel had advised the court that he thought an
insanity defense was warranted but Marcus opposed it, seeking instead to assert a
political defense based on the racial caste system, persecution, oppression, and
tyranny in the United States. Judge Altonaga therefore held a colloquy pursuant to
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975), to determine Marcus’s
ability to represent himself. Marcus referred to himself as the “One” and talked of
his current incarnation. But he acknowledged that “the legal personality involved
in this particular situation is Marcus Talley.” Marcus stated that he had read a
great deal (apparently in institutions) and understood that he was accused of
robbing banks. He described the government’s burden and asked for stand-by
counsel’s assistance on evidentiary rules. The court advised him that it would be
better to use an attorney and explained why, but did not offer substituted appointed
counsel. Marcus stated that “no one was willing to accept his defense” and that the
attorneys he had met were not willing to use it. The district court found that
Marcus knowingly invoked his right to proceed pro se and represent himself.
However, the judge also elicited Marcus’s assurance that he would use stand-by
counsel at appropriate times.
6
Case: 12-13651 Date Filed: 04/02/2014 Page: 7 of 19
The Talleys proceeded to trial two weeks later and were convicted of all
counts. The district court sentenced Marcus to 384 months’ imprisonment, after
the court determined that his criminal history was underrepresented due to his
having earlier charges dismissed because of mental illness. The court also gave an
obstruction of justice enhancement because she found he was feigning illness at the
competency hearing. The district court enhanced Eddie’s sentence for obstructing
justice by testifying and proclaiming his innocence, denying facts such as his
provision of fake bombs to the participants. The district court found that Eddie
lied on the witness stand, and sentenced Eddie to 269 months’ imprisonment.
We first address Eddie’s challenges to his conviction and sentence. Then we
address the challenges of Marcus.
I. EDDIE TALLEY
A. Has Eddie Demonstrated Plain Error as a Result of the Admission Without a
Limiting Instruction of Marcus’s Confession and Radical Beliefs?
Eddie argues that he was severely prejudiced when the Government
introduced inflammatory evidence relating only to Marcus. First, he states that
Marcus’s confession to Detective Lanier was hearsay evidence against him. He
does not argue that Marcus said anything about him in the confession; rather, the
confession was that Marcus used misguided young men to rob banks as a means of
7
Case: 12-13651 Date Filed: 04/02/2014 Page: 8 of 19
taking over the United States. He states that he was entitled to a contemporaneous
instruction that the confession was not admissible against him. He points to
prejudice in the form of witnesses testifying that Marcus and Eddie acted in
tandem. He argues that the prejudice was exacerbated by the admission of other
evidence related solely to Marcus, in the form of the radical and violent ideology
that Marcus espoused. He asserts this evidence was irrelevant to his own guilt
because there was no evidence that Eddie shared Marcus’s views. The challenged
evidence was about the UGS, Marcus’s initiation of the young men into the group,
his threats against snitches, and documents and pamphlets that Marcus produced.
Eddie argues the effect was magnified by Marcus’s questions during voir dire,
when he asked potential jurors if they thought George Washington was a criminal
for standing up to tyranny and his description of political prisoners.
The Confrontation Clause of the Sixth Amendment provides a defendant in a
criminal trial the right “to be confronted with the witnesses against him” and to
cross-examine them. See Richardson v. Marsh, 481 U.S. 200, 206-07, 107 S. Ct.
1702, 1707 (1987). This right is violated when a facially incriminating statement
of a nontestifying co-defendant is offered into evidence at a joint trial, even if the
jury is instructed to consider the statement as evidence only against the defendant
who made the statement. Bruton v. United States, 391 US. 123, 126, 88 S. Ct.
1620, 1622 (1968). In Richardson, however, the Supreme Court distinguished
8
Case: 12-13651 Date Filed: 04/02/2014 Page: 9 of 19
Bruton when a non-testifying co-defendant’s statement did not incriminate the
defendant on its face and the statement became incriminating only when linked
with other evidence. 481 U.S. at 208–209, 107 S. Ct. at 1707–1708. In such
situations, the jury is deemed to follow limiting instructions that the co-defendant’s
statement is to be considered by the jury only against the co-defendant and not
against this defendant (Eddie here). Id.
Here, there was no limiting instruction, so there is error. However, Eddie
did not object below so we review for plain error. To prevail under the plain error
standard, an appellant must show: (1) an error occurred; (2) the error was plain; (3)
it affected his substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings. United States v. Pena, 684 F.3d 1137, 1151 (11th Cir. 2012).
Because Marcus’s confession did not implicate Eddie at all, its mere existence as
evidence in the case did not adversely affect Eddie’s substantial rights. However,
Eddie argues that the three witnesses/participants had been seriously impeached
and that Marcus’s confession -- demonstrating that in fact Marcus had done what
he was accused of doing -- made their testimony more believable. We cannot
conclude that this adversely affected Eddie’s substantial rights. As the
Government points out, the wires and cleanser found at Eddie’s house corroborated
the three witnesses’ stories. While there were some differences between the
participants’ stories, all of the things that Eddie points to in his brief as differences
9
Case: 12-13651 Date Filed: 04/02/2014 Page: 10 of 19
are fairly minor. The three witnesses said almost the same thing, i.e., that Eddie
gave them the bombs, was involved in the planning, and let them meet at his
houses; he also called the police off when the participants were discovered at his
uninhabited house. Finally, the confession had limited probative value against
Eddie because it did not implicate him at all. Given the strength of the evidence
against Eddie, Eddie has not shown that his substantial rights were affected.
Turning to the pamphlets, again we review for plain error. There is no
indication that the jury considered the pamphlets against Eddie and the
Government put on extensive evidence about Eddie’s different motive, namely
money. Therefore, there was no error.1
B. Eddie’s Challenge to the Admission of Prior Bad Acts
Eddie argues that the district court improperly allowed in evidence regarding
completely unrelated bad acts that he supposedly performed. However, the
Government points out that Eddie opened the door to this evidence by placing his
character at issue by calling a character witness. Before Eddie called the witness,
the Government announced its intention to cross-examine the witness about
“specific instances that demonstrate that [Eddie] is deceiving others, particularly
his wife.” All of this was also set forth in the Government’s Rule 404(b) pretrial
notice. Eddie’s attorney responded “[I]t is all fair game.” Therefore, there is no
1
We reject as meritless Eddie’s arguments about the prosecutor’s closing
arguments.
10
Case: 12-13651 Date Filed: 04/02/2014 Page: 11 of 19
error.
C. Specific Instruction about Cooperating Witnesses
Eddie argues that the district court erred when it failed to instruct the jury
about the caution it should use when considering the testimony of the three
cooperating witnesses. Each of these witnesses, he asserts, had much to gain by
testifying against Eddie in terms of sentence reductions. He cites the pattern jury
instruction that the court did not give but also cites the testimony of each of the
witnesses about what they hoped to gain from their testimony.
Eddie did not request the instruction so we review for plain error. “Jury
instructions will not be reversed for plain error unless the charge, considered as a
whole, is so clearly erroneous as to result in a likelihood of a grave miscarriage of
justice, or the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Starke, 62 F.3d 1374, 1380–81 (11th Cir.
1995) (internal quotation marks omitted). We accord district courts broad
discretion in formulating jury instructions; district courts are not required to use the
Eleventh Circuit Pattern Jury Instructions, and this court has repeatedly approved
jury instructions that do not exactly track the language of the pattern instructions.
United States v. Veltmann, 6 F.3d 1483, 1492 (11th Cir. 1993). Here, there was no
error in the district court’s failure to give the accomplice instructions. During jury
11
Case: 12-13651 Date Filed: 04/02/2014 Page: 12 of 19
selection, the court instructed the jury that in deciding whether to believe a witness,
it should consider whether the witness had a particular reason not to tell the truth or
had a personal interest in the outcome of the case. The jury was informed at the
start of each of the cooperating witnesses’ testimony that each had pleaded guilty
and hoped to receive favorable sentencing, and each was cross-examined about it.
The district court’s instructions to the jury substantially covered the issue with
respect to the jury’s consideration of witness testimony generally (although not
specifically highlighting the testimony of accomplices). Finally, Eddie’s attorney
highlighted their status in closing and the district court reminded the jury after
closing to consider whether any witness had a personal interest in the outcome of
the case. Thus there was no plain error.
D. Eddie’s Obstruction Enhancement
Eddie argues that the district court erred when it imposed a sentencing
enhancement for obstruction of justice that was not accompanied by any specific
finding of a statement reflecting willful, material perjury. The court based the
enhancement on Eddie’s attempt to portray himself as someone who would have
no reason to associate with teenage criminals. Eddie points to cases where we
have reversed for district courts’ failure to make specific findings, and he argues
that just trying to present oneself as a respectable person does not reflect willful
12
Case: 12-13651 Date Filed: 04/02/2014 Page: 13 of 19
perjury. He points to the commentary at U.S.S.G. § 3C1.1, which cautions that not
all inaccurate statements or testimony necessarily reflect a willful attempt to
obstruct justice.
From the transcript, it is clear that the court accepted the prosecution’s
extensive argument about all of the lies Eddie told. After the Government finished
listing them, the court stated:
I also agree with the government that this defendant obstructed
justice. I could not have been more amazed at the number and the
extent of this defendant’s lies uttered in his testimony before the jury.
I have sat through many trials over 15-plus years, and I have never
witnessed a defendant in a criminal case take the stand and lie so
blatantly over and over and over again. And not about just tangential
matters. But -- and indeed, this defendant and his brother tried to
portray themselves as markedly different -- two completely different
characters. One, the -- the not-so-sane litigant representing himself,
professing to be a Messiah and seeking to overthrow the government.
And the other, the well-respected community and family man who
would have no reason to associate with these teenage criminals. And
some of the testimony that was impeached was uttered by this
defendant in direct examination seeking to portray himself in that light
to the jury. So it was material, it was not tangential.
Doc. 300 at 22-23. From our review of the transcript, we agree that Eddie’s lies
were not casual or misstatements; they were calculated to get himself acquitted of
the charges and the district court did not err in applying the enhancement.
II. MARCUS TALLEY
A. Competency
13
Case: 12-13651 Date Filed: 04/02/2014 Page: 14 of 19
Marcus challenges the district court’s finding of fact that he was competent
to stand trial. We have carefully studied Marcus’s arguments in his brief, the
relevant opinions in the court below, and the relevant parts of the record. We
cannot conclude that the findings of fact by Judge Jordan in Docket 199 are clearly
erroneous. While it is true that Marcus has a considerable history of mental health
evaluations, including some past diagnoses of mental illness, this issue was
considered with exceeding care in the court below. There were two extensive
evaluations, one by Dr. Feldman and another by Dr. Frederick. There were two
evidentiary hearings, and two opinions finding that Marcus was competent to stand
trial.
Judge Jordan’s findings are amply supported by the evaluations and opinions
of Drs. Feldman and Frederick. Dr. Feldman, a Bureau of Prisons’ forensic
psychologist, examined Marcus after his arrest. Because of Marcus’s lack of
cooperation, only a certain number of tests were administered, but Dr. Feldman did
review Marcus’s records. Dr. Feldman thought one of the prior tests indicated
malingering and thought that it was likely Marcus was feigning incompetence but
she could not rule out the possibility that he was suffering from a legitimate mental
illness. Dr. Feldman thought that Marcus had the capacity to assist with his
defense if he was motivated.
Judge Jordan ordered another evaluation when Marcus requested a de novo
14
Case: 12-13651 Date Filed: 04/02/2014 Page: 15 of 19
review of his competency. Dr. Frederick, a psychologist at the U.S. Medical
Center for Federal Prisoners in Springfield, Missouri, performed the evaluation and
delivered a battery of tests. He determined that Marcus was malingering. He
based part of his diagnosis on the fact that Marcus’s symptoms seemed to
disappear when he was out of a mental health center. But he also based his opinion
on the battery of tests he administered, his face-to-face meetings with Marcus, and
his observations of Marcus over a two-month period. Dr. Frederick’s testing
indicated psychosis but the validity factors signaled that Marcus was attempting to
give the impression of mental illness. Judge Jordan also noted that Dr. Frederick’s
diagnosis would explain some of the earlier statements about the possibility of
malingering and the fact that medications had no effect on Marcus. We thus reject
Marcus’s challenge.
B. Self-representation
Marcus also argues that his Sixth Amendment right to counsel was violated
when the district court permitted him to proceed pro se at trial with standby
counsel. Judge Altonaga conducted a more than adequate Faretta hearing. The
district judge had before her the aforesaid evaluations by Drs. Feldman and
Frederick. She had before her the record of the proceedings with respect to
competency, which had occurred before the case was assigned to her, and thus she
15
Case: 12-13651 Date Filed: 04/02/2014 Page: 16 of 19
knew that both the Magistrate Judge and Judge Jordan had conducted evidentiary
hearings and found that Marcus was competent to stand trial and was malingering.
With respect to Marcus’s reliance upon Indiana v. Edwards, 554 U.S. 164, 128 S.
Ct. 2379 (2008), we can assume arguendo, but need not decide, that a higher
standard might govern the issue of competency to waive counsel and proceed pro
se at trial in this case, as opposed to that articulated in Dusky v. United States, 362
U.S. 402, 80 S. Ct. 788 (1960). We need not articulate any precise standard for this
case because the record amply supports the district court’s conclusion under any
reasonable standard that Marcus was competent to waive counsel and to proceed
pro se as he did. This is true especially in light of the fact that Marcus did not
preserve this issue below, and therefore our review is pursuant to the plain error
analysis.
Judge Altonaga had two psychiatric reports before her indicating that
Marcus was capable of understanding the charges against him and could assist
counsel if he wanted to, but was malingering. These reports also informed the
Judge that Marcus talked about his case rationally and coherently with family or
others when he was not aware that he was being evaluated with respect to mental
health issues. The findings of competence to stand trial by the Magistrate Judge,
and the even more recent finding of competence by Judge Jordan, were very
current. Moreover, the actions of Marcus, upon which he now relies in arguing
16
Case: 12-13651 Date Filed: 04/02/2014 Page: 17 of 19
that Judge Altonaga should have been alerted to order still more psychiatric
evaluations, are actions identical to those so carefully considered by the Magistrate
Judge and Judge Jordan, and found to be malingering. Not only did Judge
Altonaga provide the warnings and elicit the understandings indicated in Faretta,
but she secured assurances that Marcus would use his stand-by counsel
appropriately. We cannot conclude that the district court erred in permitting
Marcus to proceed pro se with stand-by counsel. 2
C. Failure to Grant a Continuance
Marcus argues that the district court erred in failing to order a continuance.
However, he does not dispute the Gorvernment’s contention that Marcus did not
himself request a continuance at the hearing during which the Faretta colloquy
occurred, which was after his attorney withdrew the previously filed motion for
continuance. Nor does Marcus dispute the Gorvernment’s contention that he did
not ask for a continuance immediately before trial, during the discussion about his
not having civilian clothing. We cannot conclude that the district court abused its
discretion in failing to sua sponte grant a continuance.
2
Marcus’s argument that the district court should have appointed a new and
different stand-by counsel is without merit. The record is clear that his only dissatisfaction with
his existing appointed counsel was counsel’s disagreement with the unwise defense strategy
upon which Marcus was insisting.
17
Case: 12-13651 Date Filed: 04/02/2014 Page: 18 of 19
D. Juror No. 4
Marcus argues for the first time on appeal that the district court erred in
refusing to discharge juror No. 4 for cause. The juror had expressed discomfort
because she lived in the same area as the Defendants. However, questioning of the
juror elicited her statement that she could fulfill her oath as a juror and try the case
fairly to both sides. After the prosecutor and Eddie’s attorney indicated that the
juror need not be stricken for cause, the judge asked Marcus, who replied “I am all
right.” We thus cannot conclude that the district court abused its discretion.
E. Expert witnesses
Marcus argues that the district court erred when it summarily denied his
request to subpoena witnesses to support his mens rea defense and his explanation
of his urban guerrilla evidence. He asserts that it denied the request without
permitting a proffer of the evidence that would have been obtained and without
permitting him to make the application in an ex parte fashion.
The Constitution guarantees criminal defendants “a meaningful opportunity
to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324, 126
S. Ct. 1727, 1731 (2006). Here, Marcus was able to introduce documents relevant
to the testimony regarding his ideology, cross-examine cooperating witnesses
about the ideology, and argue the substance of his opinions to the jury. The court
18
Case: 12-13651 Date Filed: 04/02/2014 Page: 19 of 19
offered Marcus the opportunity to enter into evidence documents written by the
witnesses he sought to subpoena. Initially, the court ruled that Marcus’s Ninth
Amendment reservation of rights was not a legal defense to the charges so the
items would not be admitted. After the Government introduced Marcus’s
comments to Detective Lanier, the court reconsidered and allowed Marcus to enter
sections of the Federalist Papers and other treatises regarding Marcus’s perception
of the Government’s relationship to banks and to money. Marcus presented a
composite exhibit (with assistance of standby counsel), of which the court allowed
portions into evidence. Thus, Marcus was not denied the opportunity to present his
defense. 3
Having rejected all challenges to the convictions and sentences, 4 we
AFFIRM.
3
We reject Marcus’s argument that the Government failed to prove that Bank of
America was FDIC-insured as wholly without merit.
4
Any arguments of Defendants not expressly mentioned are rejected without need
for discussion.
19