IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10672
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v
RYAN KEITH FIELDS
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CR-127-1-C
--------------------
January 24, 2003
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Ryan Keith Fields appeals his jury conviction for
possession with intent to distribute more than 50 grams of
cocaine base, possession of a firearm in furtherance of a drug
trafficking crime, and being a convicted felon in possession of a
firearm, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii),
and 18 U.S.C. §§ 2, 922(g)(1) and 924(c).
*
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that this opinion should not be published and is not precedent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. 02-10672
-2-
Fields argues that he was denied his right to self-
representation. A defendant’s desire to exercise the right to
self-representation must be made knowingly and intelligently, and
clearly and unequivocally. See Faretta v. California, 422 U.S.
806, 835 (1975); United States v. Martin, 790 F.2d 1215, 1218
(5th Cir. 1986). The right to self-representation extends to
sentencing proceedings. United States v. Davis, 285 F.3d 378,
385 (5th Cir. 2002).
Fields filed a written motion prior to trial indicating that
he wished to proceed with self-representation. At the hearing on
his motion for self-representation, he requested a continuance
premised on his admission that he was not prepared to represent
himself at trial due to his lack of knowledge of the federal
evidentiary rules and his unfamiliarity with the evidence in his
case. The district court denied his motion for a continuance,
and Fields appeals that denial, arguing that the result of the
denial was unduly harsh. If the district court’s denial of a
continuance is neither arbitrary nor unreasonable, this court
upholds the decision to deny the continuance, even when the
decision is harsh. United States v. Hughey, 147 F.3d 423, 431
(5th Cir. 1998). Fields has not shown that the district court’s
refusal to grant the continuance was an abuse of discretion.
Once Fields learned that he would not be granted a
continuance and he also learned that stand-by counsel would not
be able to assume an active role in the trial, Fields expressed
No. 02-10672
-3-
concern about his ability to represent himself and his request to
proceed with self-representation was no longer clear and
unequivocal. Therefore, Fields did not clearly and unequivocally
assert the right to self-representation, and the district court
did not commit error when it denied his motion. See Brown v.
Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (a defendant who
asserts the right to self-representation may be deemed to have
waived that right if he vacillates on the issue or abandons his
request altogether).
Fields also filed a motion prior to his sentencing hearing
in which he indicated that he wished to exercise the right to
self-representation. However, after the district court denied
his motion, Fields personally sought a continuance of the
sentencing hearing so that his court-appointed attorney could be
present. Once his court-appointed attorney returned, Fields
permitted her, without objection, to represent him fully
throughout the course of the proceeding. Thus, Fields’
subsequent conduct indicates that he equivocated on his assertion
of the right to self-representation, and the district court’s
denial of his motion is not reversible error. See Brown, 665
F.2d at 611.
Fields also argues that the district court abused its
discretion when it denied his motion for a new trial based on
newly discovered evidence that he contends supports his
justification defense. Fields sought a new trial based on police
No. 02-10672
-4-
reports indicating that the person to whom Fields was purportedly
bringing the drugs was arrested after the trial for possession of
drugs and prior to the trial for a crime of violence. Motions
for a new trial based on newly discovered evidence are disfavored
and are only properly granted when a defendant shows, inter alia,
that evidence would probably produce an acquittal at a new trial.
United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996).
Since a justification defense requires, inter alia, imminent fear
of bodily harm, see United States v. Posada-Rios, 158 F.3d 832,
873-74 (5th Cir. 1998), and the police reports do not establish
that Fields was in imminent fear of bodily harm, Fields has not
shown that the newly discovered evidence would produce acquittal
at a new trial. Therefore, the district court did not abuse its
discretion when it denied Fields’ motion for new trial. See
Freeman, 77 F.3d at 817.
Fields also argues that the district court erred when it did
not hold a hearing on his motion for a new trial. The district
court may deny a motion for a new trial without holding an
evidentiary hearing. See United States v. MMR Corp., 954 F.2d
1040, 1046 (5th Cir. 1992). Fields has not demonstrated that his
situation was sufficiently unique to warrant an evidentiary
hearing. See United States v. Hamilton, 559 F.2d 1370, 1373 (5th
Cir. 1977) (listing situations). Thus, the district court’s
decision not to hold a hearing was not error.
No. 02-10672
-5-
Fields argues that the felon in possession of a firearm
statute, 18 U.S.C. § 922(g)(1), is unconstitutional because it
does not require a “substantial” effect on interstate commerce.
His argument is foreclosed by United States v. Daugherty, 264
F.3d 513, 517 (5th Cir. 2001), cert. denied, 534 U.S. 1150
(2002).
Based on the foregoing, the judgment of conviction and
sentence are AFFIRMED.