IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60950
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID SPICER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CR-141-ALL-LS
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October 1, 2002
Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.
PER CURIAM:*
David Spicer appeals his convictions for armed bank robbery,
using a firearm during a crime of violence, and being a felon in
possession of a firearm. Spicer first asserts that the district
court erred in failing to ensure that he knowingly and
voluntarily waived his right to counsel. The district court’s
colloquy with Spicer at his competency hearing indicates that
Spicer’s waiver of counsel was knowing and voluntary. See In re
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-60950
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Hipp, Inc., 5 F.3d 109, 115 (5th Cir. 1993). Because the record
is not sufficiently developed on the issue whether Spicer
received ineffective assistance of counsel, we decline to
consider Spicer’s argument that his waiver was involuntary
because the district court failed to inquire whether he was
exercising a choice between self-representation and ineffective
assistance, without prejudice to Spicer’s right to raise that
issue in a 28 U.S.C. § 2255 motion. See United States v. Kizzee,
150 F.3d 497, 502-03 (5th Cir. 1998).
Spicer further asserts that the district court erred in
failing to appoint an expert to assist him in his insanity
defense, pursuant to 18 U.S.C. § 3006(A). Spicer acknowledges
that because he did not request such an appointment in the
district court, this issue is subject to plain-error review. See
United States v. McIntosh, 280 F.3d 479, 482 (5th Cir. 2002). As
Spicer acknowledges in this appeal, his insanity defense was
based on Dr. Womack’s conclusion that he suffered from post-
traumatic stress disorder. However, this evidence that Spicer
suffered from mental problems generally was insufficient to give
the district court reasonable ground to doubt his sanity at the
time of the offenses. See Williams v. Collins, 989 F.2d 841, 845
(5th Cir. 1993). After diagnosing Spicer with post-traumatic
stress disorder, Dr. Womack went on to conclude that “[a]t the
time of the alleged offenses, [Spicer] did not suffer from a
mental disease or defect which would render him unable to
No. 01-60950
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appreciate the nature, quality, or wrongfulness of his behavior.”
See United States v. Abou-Kassem, 78 F.3d 161, 165-66 (5th Cir.
1996) (stating that “[a] person is legally insane if as a result
of a severe mental disease or defect, he was unable to appreciate
the nature and quality or the wrongfulness of his acts”)
(internal brackets, quotation marks, and citation omitted). The
district court thus did not err, plainly or otherwise, in failing
to appoint Spicer an independent psychiatric expert pursuant to
§ 3006A. See McIntosh, 280 F.3d at 482.
Spicer also contends that he was denied a fair trial because
the prosecutor elicited improper testimony regarding Dr. Womack’s
opinion on the ultimate issue of his sanity and, during closing
argument, urged the jury to convict Spicer based on Dr. Womack’s
opinion. Spicer acknowledges that he failed to object on this
ground at trial and, thus, that the standard of review is plain
error. See id. Even assuming that the district court clearly or
obviously erred in allowing testimony and argument regarding Dr.
Womack’s conclusion that Spicer did not have a mental illness
that prevented him from appreciating the wrongfulness of his
actions, there was no plain error. See id. The record shows
that Spicer himself admitted in evidence Dr. Womack’s second
report, which set forth his conclusion that Spicer did not suffer
from a mental disease or defect at the time of the alleged
offenses that rendered him unable to appreciate the wrongfulness
of his behavior. Thus, Spicer’s substantial rights were not
No. 01-60950
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affected by the district court’s failure to prevent the
prosecutor from presenting the same evidence and discussing it
during summation. See id.
Spicer also argues that he was denied a fair trial because
the prosecutor engaged in an impermissible argument during
summation that Spicer should be convicted based on his propensity
to commit crime as evidenced by his prior robbery convictions.
Contrary to Spicer’s assertions, the record does not reflect that
the prosecutor suggested that Spicer should be convicted because
his prior offenses showed his propensity to commit the charged
crimes. However, even assuming that the prosecutor’s remarks
were improper, they did not prejudice Spicer’s substantive
rights. See United States v. Munoz, 150 F.3d 401, 414-15 (5th
Cir. 1998). The challenged remarks did not cast serious doubt on
the correctness of the jury’s verdict, as Spicer stipulated to
the indictment’s allegations that he committed four prior armed
robbery offenses, the jury received cautioning instructions, and
Spicer admitted his guilt to the charged offenses and presented
only weak evidence of insanity. See id. at 415; United States v.
Iredia, 866 F.2d 114, 117 (5th Cir. 1989).
Finally, Spicer contends that his indictment was defective
under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because
it failed to charge his prior felonies, the type of firearm used,
and how it was used or brandished. Spicer acknowledges, however,
that the prevailing weight of authority fails to support his
No. 01-60950
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argument, and he states that he is raising the issue to preserve
it in the event of a change in the law. Given the statutory
career-offender enhancement based on Spicer’s prior convictions,
Spicer’s sentences did not exceed the applicable statutory
maximums. See 18 U.S.C. §§ 924(a)(2) & (c)(1)(A), 2113(a) & (d),
3559(a)(3) & (c)(1)(A), 3583(b)(2). Spicer is thus not entitled
to any relief under Apprendi, 530 U.S. at 490. The judgment of
the district court is AFFIRMED.
United States v. Spicer
Combined Opinion