[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 11, 2002
THOMAS K. KAHN
No. 01-11856 CLERK
D. C. Docket No. 00-00106 CR-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAPHONSE YOUNG,
a.k.a. Akilio Young,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Alabama
(April 11, 2002)
Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and MILLS*, District
Judge.
_________________________
*Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting by
designation.
DUBINA, Circuit Judge:
In this case, we consider an issue of first impression in this circuit: whether a
defendant’s right to proceed pro se is unqualified if the defendant asserts his
request after the jury is empaneled but before the jury is sworn. Following the
dictate of Chapman v. United States, 553 F.2d 886 (5th Cir. 1977),1 and several
other circuits’ interpretive holdings, we hold that a defendant’s right of self-
representation is unqualified if the defendant asserts that request before the jury is
empaneled, absent any indication that the defendant is attempting to delay the
proceedings. Applying this rule to the present case, we conclude that the district
court properly denied defendant Laphonse Young’s (“Young”) request to proceed
pro se as untimely because Young asserted his request after the jury was
empaneled.
BACKGROUND
The government charged Young in a two-count federal indictment. Count
One charged Young with possession of stolen mail, in violation of 21 U.S.C. §
1708. Count Two charged Young with possession of a firearm after a felony
conviction, in violation of 18 U.S.C. § 922(g)(1). The evidence at trial consisted of
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October
1, 1981.
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postal inspectors’ testimony that numerous individuals complained about stolen
mail from post office boxes in the city of Mobile, Alabama. During the
investigation, Young became the primary suspect. The postal inspectors set up a
video surveillance at one of the post office locations where previous thefts had
occurred. The video captured Young taking mail from a post office box. The
postal inspectors arrested him. Young proceeded to trial where a jury found him
guilty on both counts. Young then perfected this appeal.
ISSUES
1. Whether the district court properly denied Young’s motion to proceed
pro se.
2. Whether the district court abused its discretion by admitting into evidence
the checks comprising Government’s Exhibit 11.
3. Whether the district court abused its discretion by admitting hearsay
evidence at trial.
4. Whether the prosecutor engaged in misconduct during the closing
argument.
5. Whether the postal inspectors violated Young’s Fourth Amendment
rights by searching his post office box without a warrant.
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6. Whether the cumulative impact of the errors asserted by Young deprived
him of a fair trial.
DISCUSSION2
Young contends that the district court violated his constitutional right to
proceed pro se. We disagree and hold that the district court properly denied
Young’s request as untimely because Young asserted his right after the parties had
selected the jury.
In Faretta v. California, 422 U.S. 806, 817-18, 95 S.Ct. 2525, 2532 (1975),
the Supreme Court held that the Sixth Amendment right to the assistance of
counsel includes the right to represent oneself. In making its pronouncement, the
Court discussed the timeliness of a request to proceed pro se. The Court twice
described the timing of Faretta’s request to represent himself: once that he
requested it “weeks before trial,” and once that he requested it “well before the date
of trial.” 422 U.S. at 835, 807, 95 S.Ct. at 2541, 2527. The Court mentioned the
timeliness of the request in both the opening paragraphs and the breadth with
which the Court announced its decision. Id. at 835-36, 95 S.Ct. at 2541. Although
the Court’s holding did not specifically concern the timeliness of the defendant’s
2
We discuss only Young’s first issue regarding his right to proceed pro se. Because we find
no merit to Young’s remaining issues, we affirm the district court’s disposition of those issues
without further discussion. See 11TH CIR. R. 36-1.
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request to proceed pro se, the Court did discuss the necessity of timeliness of the
request.
In discussing Faretta, other circuits have considered the timeliness of a
defendant’s request for self-representation. See e.g., Buhl v. Cooksey, 233 F.3d
783, 795 (3d Cir. 2000) (holding that a defendant’s request for self-representation
was timely because he first made it several weeks before trial and then reasserted
the request the day before the trial began); United States v. Walker, 142 F.3d 103,
109 (2d Cir. 1998) (holding that a defendant’s request for self-representation was
untimely although he made it before empaneling of the jury because he asserted the
request after nineteen days of voir dire); Savage v. Estelle, 924 F.2d 1459, 1463 n.7
(9th Cir. 1990) (noting that the defendant’s request for self-representation was
timely because he asserted it before voir dire and thus before the jury was
empaneled); United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979)
(holding that a defendant’s request for self-representation was untimely because he
made it after the jury had been selected and before the trial court had sworn the
jury).
Our circuit, however, has not addressed the issue of timeliness of a pro se
request in a case where a defendant asserts his right of self-representation after the
parties have selected a jury. Our predecessor, the Fifth Circuit, considered a case
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where the defendant asserted his right to proceed pro se before the empaneling of
the jury. Chapman, 553 F.2d at 888. In discussing the timeliness of Chapman’s
request, the court held that “a demand for self-representation must be honored as
timely if made before the jury is selected, absent an affirmative showing that it was
a tactic to secure delay.” Id. at 887. Subsequently, our circuit, in dicta, stated that
“[s]everal courts, including our predecessor the Fifth Circuit, have held that a
defendant’s request to represent himself is timely if made prior to the jury’s being
selected or sworn.” Horton v. Dugger, 895 F.2d 714, 717 (11th Cir. 1990). The
defendant in Horton asserted his right to self-representation after the parties had
selected the jury and the trial judge had sworn the jury. Thus, Horton’s
interpretation of Chapman’s holding had no bearing on the facts presented by that
case because Horton’s request was untimely since it was asserted after the jury was
empaneled and sworn.
Following our precedent in Chapman, we conclude that a defendant’s
request to proceed pro se is untimely if not made before the jury is empaneled.
Accordingly, the district court here properly denied Young’s request to proceed
pro se since he made his request after the parties had selected the jury. “[C]ourts
must consider the fundamental nature of the right and the legitimate concern for
the integrity of the trial process. . . . If there must be a point beyond which the
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defendant forfeits the unqualified right to defend pro se, that point should not come
before meaningful trial proceedings have commenced.” Chapman, 553 F.2d at
895. In this case, the meaningful trial proceedings commenced when the parties
selected the jury; therefore, Young’s request for self-representation was untimely.
CONCLUSION
The precise holding of Chapman requires that a district court honor as
timely a defendant’s demand for self-representation if the defendant asserts the
right before the jury is selected, absent an affirmative showing that the defendant
made the request in order to delay the trial proceedings. 553 F.2d at 887.
Following that precise holding, we conclude that Young’s request, which he
asserted after the parties selected the jury but before the judge swore the jury, was
untimely. Accordingly, we affirm the district court’s order denying Young’s
request to proceed pro se.
AFFIRMED.
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