United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 16, 2007
Charles R. Fulbruge III
Clerk
No. 05-50934
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
MARIO GUILLERMO IBARRA,
Defendant-Appellant
Appeal from the United States District Court
For the Western District of Texas
(05-CR-15)
Before DAVIS, DENNIS and PRADO, Circuit Judges.
PER CURIAM*
In this direct criminal appeal, Defendant-Appellant Mario
Guillermo Ibarra (“Ibarra”) challenges his convictions under 18
U.S.C. § 911 and 8 U.S.C. § 1326 on the ground that he was denied
the right to represent himself at trial. We AFFIRM.
*
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this opinion should not be published and is not precedent except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.
I.
On December 6, 2004, Ibarra was arrested by United States
Customs and Border Protection inspectors at a port of entry in El
Paso, Texas. Ibarra was accused of violating 18 U.S.C. § 911
(falsely and willfully representing himself to be a U.S. citizen)
and 8 U.S.C. § 1326 (attempting to reenter the United States after
prior deportation). Richard Mattersdorf (“Mattersdorf”) was
appointed to represent Ibarra in the district court.
Three days after his appointment, Mattersdorf moved to
withdraw as counsel for Ibarra on the ground of a conflict between
the two men. As support for the motion, Mattersdorf explained that
Ibarra did not believe that Mattersdorf was his lawyer and that
Ibarra had specifically said he did not want Mattersdorf to
represent him. The court denied the motion to withdraw.
On May 5, 2005, Mattersdorf filed a second motion for leave to
withdraw and in support detailed a meeting he had with Ibarra in
which Ibarra had torn up a psychiatric evaluation counsel had given
him, had informed counsel that he did not request or want his
services, and had hung up his telephone on his side of the attorney
visiting booth and refused to pick it back up. Mattersdorf asked
the court to grant the motion to withdraw during the following
exchange in a May 5, 2005, hearing on the subject of Ibarra’s
competency:
MATTERSDORF: Mr. Ibarra . . . does not desire my
services. I believe he may prefer to represent himself .
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. . .
THE COURT: Well, he’s not going to represent
himself.
IBARRA: Your Honor, can I say a word? . . . I just
want to let you know that I didn’t like the [psychiatric]
evaluation. It was so negative and even though I have
emotional problems . . . I am an honest person,
trustworthy and responsible . . . .
THE COURT: I can understand what you’re saying, but
. . . you are not a citizen. You have no right to remain
in this country.
IBARRA: Well, I am a U.S. citizen. I have two
nationalities and that’s all I’m going to say. I’m not
willing to say anything more.
THE COURT: Okay. If I appoint you another attorney,
are you going to cooperate with the attorney?
IBARRA: I will not coop—I am not going to cooperate
with any attorneys because that’s the truth and nothing
but the truth, so–
THE COURT: Okay.
IBARRA: If the country wants to reject me, it’s up to
them, because I am an honest, responsible person and I
have been serving the country as well; never caused any
problems. That’s all I’m going to say.
THE COURT: Okay. Okay. We’ll set you for trial.
After the court addressed the psychiatric evaluation, which
had determined Ibarra possessed the ability to understand the
proceedings against him as well as sufficient ability to consult
with his attorney and assist in his own defense, the following
exchange took place:
MATTERSDORF: Would the Court entertain a motion to
allow Mr. Ibarra to proceed pro se?
THE COURT: No. Don’t give him any ideas.
MATTERSDORF: Well, he already has the idea, Your
Honor. I wish I could take credit for giving him–
THE COURT: He’s already convicted himself [in a
letter to the court], quite frankly. Anything he says is
going to be–is not going to make any difference. I may
find as a matter of law he’s not a citizen. Period . .
. .
THE COURT: June the 20th. You will represent him.
And don’t give him any ideas about pro se. It’s bad
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enough having a fool for a client.
IBARRA: Sir,–Your Honor can I say a word?. . . I am
30 years old and I don’t want nobody to represent me. So
I want you just to give your final decision or decisions
because I don’t want to waste my time.
THE COURT: What do you mean you want a decision? Are
you pleading guilty?
IBARRA: I don’t want him. I don’t need no
attorneys. I already tell you that–
(emphasis added). At this point, the court did not further address
the issue of self-representation but instead the discussion turned
to Ibarra’s right to a jury trial. The court explained to Ibarra
that he had a better chance in front of a jury than he would in a
bench trial and after statements by Ibarra disputing the charges
against him, the court set the case for a jury trial.
On June 14, 2005, a pretrial conference was held at
Mattersdorf’s request to inform his client in open court of the
Government’s plea bargain. At the conference, Ibarra restated his
belief in his innocence:
IBARRA: I didn’t commit any misdemeanors or any
offense, those things that [the AUSA] was talking about.
I have no idea. I am an honest person and responsible
person, and I feel bad about it and disappointed of the
authorities and the way they have been treating me, and
the way I have been, you know.
Plus that’s why one of the reasons that I don’t
really agree to have an attorney and not even to be in
front of a judge and in front of the jury, or on trial,
is because it’s kind of, you know, it’s like making fun
of me . . . .
(emphasis added). Ibarra ultimately refused the plea bargain.
On June 20, 2005, the case proceeded to jury trial with
Mattersdorf acting as counsel. At the conclusion of the trial, the
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jury found Ibarra guilty on both counts and the trial judge
sentenced him to a four year term of non-reporting probation.
On appeal, Ibarra, still represented by Mattersdorf, argues
the district court denied him his Sixth Amendment right to self-
representation when it failed to consider or grant him the
opportunity to proceed pro se despite what Ibarra construes as four
separate oral motions, including: (1) Mattersdorf’s statements at
the May 5, 2005, competency hearing that Ibarra “may prefer to
represent himself” and his inquiry to the court at that same
hearing as to whether “the Court [would] entertain a motion to
allow Mr. Ibarra to proceed pro se;” (2) Ibarra’s statement at the
competency hearing that “I am 30 years old and I don’t want nobody
to represent me;” (3) Ibarra’s statement at the competency hearing
that “I don’t need no attorneys;” and (4) Ibarra’s statement at the
June 14, 2005, pretrial conference that “I don’t really agree to
have an attorney.”
II.
Ibarra’s constitutional challenge to the district court’s
rulings are reviewed de novo.1
III.
In Faretta v. California, the Supreme Court held that a
defendant has a Sixth Amendment right to represent himself if he
knowingly and intelligently chooses to forego the assistance of
1
United States v. Virgil, 444 F.3d 447, 452 (5th Cir. 2006).
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counsel.2 Unlike the Sixth Amendment right to counsel, which is in
effect until waived, the right to self-representation is not
effective until asserted.3 To assert his right of
self-representation, a defendant must “knowingly and intelligently”
waive his right to counsel, and the request must be “clear and
unequivocal.”4
Where a fundamental constitutional right such as the right to
counsel is concerned, courts indulge every reasonable presumption
against waiver.5 In the absence of a clear election to forego
counsel, a court should not quickly infer that a defendant
unskilled in the law has waived counsel and has opted to conduct
his own defense.6 This circuit strictly construes the “clear and
unequivocal” requirement.7
In Burton v. Collins, we held that where surrounding dialogue
gave rise to reasonable competing interpretations attributable to
a defendant’s inquiry into whether he could represent himself, such
competing interpretations were “the best evidence that [the
defendant] did not clearly and unequivocally assert his right to
2
422 U.S. 806, 819, 836 (1975).
3
Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982).
4
Faretta, 422 U.S. at 835; Brown, 665 F.2d at 610.
5
Burtons v. Collins, 937 F.2d 131, 133 (5th Cir. 1991).
6
Id. (internal citations and quotations omitted).
7
Id.
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representation.”8 In Burton, the defendant asked for new counsel
just prior to his request for self-representation. The trial court
denied both requests. On appeal, we held that the request for new
counsel made it unclear as to whether the subsequent statement
regarding self-representation was merely an expression of
dissatisfaction with current counsel or an assertion of the right
to self-representation. We stated that “[i]n absence of a clear
indication by the defendant of his desire to waive his fundamental
constitutional right to counsel, we are unwilling to infer from an
ambiguous record that such a waiver existed.”9
In this case, statements delivered contemporaneously with the
purported self-representation requests similarly create a
reasonable interpretation of the requests other than an
interpretation that Ibarra sought to waive his fundamental
constitutional right to counsel. One reasonable interpretation is
that Ibarra’s statements were simply meant to express his
dissatisfaction with his detention and the judicial process. For
instance, as detailed above, before statements regarding waiver of
counsel at the May 5th competency hearing, Ibarra had stressed his
innocence: “Well I am a U.S. citizen. I have two nationalities and
that’s all I’m going to say. I’m not willing to say anything more
. . . I am not going to cooperate with any attorneys because that’s
8
Id. at 134.
9
Id. (citations omitted).
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the truth and nothing but the truth.” Further, after the purported
self representation requests, Ibarra said “so I want you just to
give your final decision or decision because I don’t want to waste
my time.” Similarly, Ibarra’s statement at the June 14th pre-trial
hearing that “I don’t really agree to have an attorney” should be
viewed in the context of the words which came immediately
afterwards: “[I don’t agree] not even to be in front of a judge and
in front of the jury or on the trial, is because it’s kind of, you
know, it’s like making fun of me . . . .”
These statements can reasonablely be interpreted as verbal
protests meant to express Ibarra’s disagreement with his detention
and the whole notion of a trial on his guilt or innocence rather
than an assertion of the right to self-representation. The
reasonableness of this interpretation is bolstered by the lack of
any affirmative request on the part of Ibarra to present his case
directly to the jury. Instead, Ibarra’s statements only concern
the discharge of counsel. Because the statements are subject to a
reasonable competing interpretation unrelated to the waiver of the
right to counsel and the assertion of the right to self-
representation, Ibarra has not established that he clearly and
unequivocally asserted his right to self-representation.10
Finally, the statements of Mattersdorf, while they better
articulate a request for self-representation on behalf of Ibarra,
10
See id.
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also fail to establish a clear and unequivocal request for self-
representation. As demonstrated by the excerpts above, Ibarra
failed to support counsel’s two statements on the issue of self-
representation and instead interrupted the discussion between the
court and counsel on this matter twice; the first time to criticize
the psychological evaluation and the second time to ask for an
immediate resolution of his case. Under these circumstances, we
will not infer a waiver of the right to counsel.11
IV.
For the foregoing reasons, Ibarra’s convictions are
AFFIRMED.
11
See id. (noting that courts indulge every reasonable
presumption against waiver of the right to counsel; in absence of
clear indication by the defendant of his desire to waive right to
counsel, the court would not rely on an ambiguous record to draw
such an inference).
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