United States v. Antonio Flores-Martinez

REVISED MAY 7, 2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 11-40376 April 16, 2012

Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff - Appellee
v.

ANTONIO FLORES-MARTINEZ,

Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Appellant Antonio Flores-Martinez (“Flores-Martinez”) was convicted
under 8 U.S.C. § 1326(a) and (b)(1) for being found unlawfully present in the
United States after previous deportation subsequent to a felony conviction. On
appeal, he challenges his conviction on the grounds that: (1) the district court
violated his due process right to a fair trial when it denied him a
psychological/psychiatric evaluation for competency purposes and failed
thereafter to sua sponte conduct a hearing on the question of his competency to
stand trial; and (2) the district court denied him his constitutional right to testify
in his defense. For the reasons discussed below, we AFFIRM.
 No. 11-40376

FACTUAL BACKGROUND
In 2008, Flores-Martinez, a citizen and national of Honduras, was
deported from the United States after being convicted of the felony of possession
of a weapon for an unlawful purpose. In 2009, Flores-Martinez was
apprehended by immigration agents in Laredo, Texas and charged with illegal
reentry after deportation. While in custody, he made a claim to possible
derivative citizenship through his deceased father. Immigration officials
investigated his claim but ultimately determined that it was without merit.1
Subsequently, because delays in the prosecution of his case had led to Flores-
Martinez having “already spent more time in federal custody than he would have
received had he been convicted,” his case was dismissed and he was again
deported to Honduras.
Less than three months later, Border Patrol Agents found Flores-Martinez
crossing the Rio Grande River. As a result, Flores-Martinez was charged under
8 U.S.C. § 1326(a) and (b)(1) with being found unlawfully present in the United
States after deportation subsequent to a felony conviction.
Over the course of proceedings, Flores-Martinez was disruptive in certain
ways and “difficult” with his counsel. During most of this time, his counsel and
the court agreed that Flores-Martinez’s conduct was the result of his fervent,
though legally incorrect, belief that he was entitled to citizenship due to his
father’s service in the United States military during World War II.

1
According to the government’s motion in limine, during the prosecution of Flores-
Martinez in 2009 for illegal reentry, he claimed derivative United States citizenship based
upon his father’s military service during World War II. According to the government, “[r]ecords
indicate that the Defendant’s father served as a Merchant Marine from November 1944 to
August 1945 and was Honorably Discharged. There is no indication that his father ever
applied for or was granted United States citizenship based upon his military service or for any
other reason. The Defendant was not able to prove any valid claim of United States
citizenship[.]”

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At a pretrial conference in the district court, defense counsel for Flores-
Martinez orally moved for and was granted an unopposed continuance because
Flores-Martinez was continuing to be “extremely difficult” and uncooperative
with his counsel. Defense counsel stated that during the continuance, he
intended to procure at his own expense an independent mental health evaluation
of Flores-Martinez because
I feel it’s important, Your Honor, before I turn around and end up
in a situation where I have no other choice but to proceed with trial
knowing full well that he’s going to end up with a lot, lot, lot more
time than he should otherwise get if he was to decide to plead guilty.
Thereafter, Dr. David Morón (“Dr. Morón”), a psychiatrist, met with Flores-
Martinez for approximately fifteen to twenty minutes before Flores-Martinez
walked out of the evaluation “angry, aggressive, [and] refusing to speak or
answer any additional questions.”
At the next pretrial conference, defense counsel represented that Flores-
Martinez “refuse[d] to cooperate with anything in this particular case. He
believes that it’s a case that should be dismissed, period, 100 percent, with
nothing more, and on that basis, Your Honor, it’s very difficult to talk to him or
to prepare for trial or anything.” Defense counsel further stated that Dr.
Morón’s report had indicated that Flores-Martinez did not appear to have any
mental health problems but that Dr. Morón could not be completely certain
because he had not been able to properly evaluate him.
At the conference, the district court addressed Flores-Martinez and
directed questions to him about his mental health history. Flores-Martinez
responded in the negative to the district court’s question of whether he had ever
been treated for any mental illness or addiction to drugs of any kind, and
whether he was under the influence of any medication that could inhibit his
ability to understand the proceedings. In addition, Flores-Martinez offered that
he was “a person that considers himself to be healthy in mind.” Furthermore,

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Flores-Martinez answered the district court’s question affirmatively regarding
whether he understood that he was being accused of the crime of being an alien
unlawfully found in the United States.
The district court then addressed defense counsel and asked if Flores-
Martinez had been able to assist in his defense, to which defense counsel
responded, “very little.” Following up, the district court asked “whether he has
shown any signs of mental health disorder that would make it difficult for him
to assist you in his defense,” to which defense counsel responded, “[s]pecifically
in regards [sic] to that, no, Your Honor, there has been no problem. . . .
Specifically to the issue of competency [to stand trial], I believe he is competent.”
The next day, the district court resumed the pretrial conference, at which
time defense counsel for Flores-Martinez—now arguing that his client may be
mentally incompetent—made an oral motion requesting that Flores-Martinez be
given a court-ordered mental health evaluation “on the basis of his inability to
provide any assistance to counsel.” The district court observed that it saw
“something different between being unable and unwilling, and that’s the main
thing here.” In addition, the district court noted that it did not “see anything
here that indicates that he is not competent. I think that [his] . . . being
emotional or overemotional is not an element of – of competency as far as I’m
concerned. Unless a psychologist . . . or especially a psychiatrist has opined that
he’s incompetent and has . . . a medical basis for that diagnosis, then I’m – I’m
ready to proceed[.]” Then, the district court reviewed Dr. Morón’s report and
noted that because Dr. Morón had already tried to evaluate Flores-Martinez only
to be refused, any additional attempt would likely be equally futile. In response,
defense counsel suggested that Flores-Martinez may be less recalcitrant if he
were sent away for a court-ordered evaluation to be conducted at one of the out-
of-state federal prison facilities. The district court denied the motion.

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Five days later, the case proceeded to jury trial, at the beginning of which
the district court summarized Dr. Morón’s report and determined that nothing
in the record indicated any reason to doubt Flores-Martinez’s competency to
stand trial. Then, the district court warned that if Flores-Martinez was
disruptive during the trial, he would be removed from the courtroom.
Immediately, Flores-Martinez stated as follows:
Your Honor [sic] supposed to be honest with the jury – the jury and
all that. You guys dropped the charges already. Tell the jury that
my father fought for this country. My father’s a U.S. veteran.
That’s why I’m complaining. You guys sent me to Honduras just to
lose my arm. This is how you guys, you know, paid to [sic] my
father.
The district court again warned Flores-Martinez against disrupting the
proceedings, but Flores-Martinez retorted that because the judge was “not being
honest . . . [w]ith the jury,” he did “not want to be here anymore.” In response,
the district court ordered that “the record reflect that the defendant has
requested his absence from the courtroom,” had Flores-Martinez removed, and
informed the jury that “the defendant has requested that he not be in the
courtroom during the trial, so we will be proceeding . . . [with the defendant] ‘in
absentia.’” Subsequently, during a recess after the direct examination of a
government witness, the district court brought Flores-Martinez into the
courtroom to ask if he wanted to return for the remainder of the trial. Flores-
Martinez answered that he did.
When the government rested its case-in-chief, the district court recessed
to permit defense counsel to confer with Flores-Martinez prior to putting on his
case-in-chief. During the recess, defense counsel requested to make a record to
address the issue of whether Flores-Martinez would testify in his defense.
Defense counsel stated that Flores-Martinez wanted to testify but that he only

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wanted to testify as to matters that had been excluded by the limine order
granted on the government’s motion:2
I know that it’s our case in chief next because the government has
rested in this particular case. My concern is my client, Your Honor,
he wants to testify. He wants to talk to the jury, but he wants to
talk to the jury about what this Court has ordered liminied [sic] out,
and that’s all he wants to talk about, about the facts he feels he’s
entitled to, his right to be here in the United States because of the
Army service of his father, the injuries, the service – connected
injuries that he has with the military and things of that nature.
(emphasis added). Defense counsel then requested that the district court reverse
its limine order so that the defense could present the information regarding why
Flores-Martinez believed that he had a right to be in the United States and was
not violating any laws. The district court denied the request to reverse its limine
order, at which point the defense stated that it had nothing further to offer.
However, when the district court began seating the jury in the courtroom, the
following transpired:
THE DEFENDANT: Your Honor, can I address the jury?
THE COURT: Mr. Flores[-Martinez] –
THE DEFENDANT: (Speaking Spanish.)
THE COURT: – I’m asking the jury to please be seated. Mr.
Flores[-Martinez] –
THE DEFENDANT: (Speaking Spanish.)
THE COURT: Please remove the defendant from the courtroom.
THE DEFENDANT: My father is a Veteran of the second World
War. Look how they have me.

2
The government’s motion in limine requested that the district court “issue an order
precluding the Defendant and/or his attorney from questioning witnesses or eliciting testimony
and offering any evidence to the jury, on direct or cross-examination, concerning: a) the
dismissal of the Defendant’s prior indictment alleging a violation of Title 8 U.S.C. § 1326 [the
2009 illegal reentry charge]; b) the citizenship or domicile of any of the Defendant’s family
members, specifically that the Defendant’s father was not granted United States citizenship
after his military service; and c) the Defendant’s claim of fear of returning to Honduras.”

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Flores-Martinez was removed from the courtroom. The defense then announced
that it had no witnesses or additional evidence to present and would rest its
case.
Before the reading of the charge and outside the presence of the jury,
Flores-Martinez was brought back into the courtroom and his counsel made a
formal request on the record for a bill of exceptions permitting Flores-Martinez
to testify to the court. The district court granted the bill of exceptions. However,
Flores-Martinez refused to speak. As a result, defense counsel then asked to
make a proffer instead with Flores-Martinez still in the courtroom, which the
district court allowed, as follows:
[T]he purpose of his testimony in this particular case is that he
firmly believes that he is entitled to some citizenship because of
what his father has done for this country.
There is a situation that basically says a citizen is one that
has given his allegiance to the United States. In this particular
case, my client knows for a fact that his father gave his allegiance,
100 percent of it, to the United States government when he enlisted,
when he enrolled in the military being a member of the armed forces
during a period of time, Your Honor, of approximately five to six
years during which this country was at war in the major World War
II.
He feels that because of the sacrifices that his father has done
for this country in terms of fighting alongside with normal shoulder
– soldiers, having received the benefits that he has otherwise
received such as Veteran’s benefits, medical treatment through the
Veteran Administration, the fact that he was honorably discharged,
the fact that he has always gotten a pension from the military as far
as this is concerned in regards [sic] to his service, along with the
facts that he has lived here in this country for a number of years –
. . . since he was a young man – and I’m referring to my client, Mr.
Flores[-Martinez], every time that I have mentioned “he” in this
particular presentation – and that is what he wanted to get to the
jury for the jury to understand and to see with the hope[ ] that the
jury would be able to take that into consideration in determining
whether he is here in this country or whether he was found in this
country and his status being illegal.

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 No. 11-40376

After the proffer was made, defense counsel made an oral motion for an acquittal
on the grounds that the government had failed to present sufficient evidence to
prove its case. The district court denied the motion, and the remainder of the
trial proceeded without incident.
The jury convicted Flores-Martinez, and the district court sentenced him
within the Sentencing Guidelines range to sixteen months imprisonment and
three years supervised release. This timely appeal followed, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
A. Mental Competency3
“It has long been accepted that a person whose mental condition is such
that he lacks the capacity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in preparing his defense may
not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975); see also
Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam). Accordingly, “the
conviction of an accused person while he is legally incompetent violates due
process.” Pate v. Robinson, 383 U.S. 375, 378 (1966) (citation omitted).
In addition to this substantive right, the criminal defendant has a
procedural due process right that guarantees “procedures adequate to guard an
accused’s right not to stand trial or suffer conviction while incompetent.”

3
While this appeal was pending, Flores-Martinez completed his imprisonment term and
was removed from the United States to Honduras. Shortly before oral argument, the
Government contended that Flores-Martinez’s absence from the United States mooted his
appeal regarding the competency hearing. Flores-Martinez’s challenge to his conviction based
upon the claim that the court should not have proceeded to trial without holding a competency
hearing is not mooted by his deportation or sentence completion. See United States v.
Villanueva-Diaz, 634 F.3d 844, 848-49 (5th Cir.), cert. denied, 132 S. Ct. 110 (2011); United
States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006) (per curiam) (“To the extent a
defendant appeals his conviction, his appeal is not moot simply because his term of
imprisonment has expired.” (citation omitted)). In any event, his counsel has subsequently
advised us that Flores-Martinez has again been found present in the United States; seemingly,
the question of mootness is itself moot.

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Holmes v. King, 709 F.2d 965, 967 (5th Cir. 1983) (citations omitted). Depending
on whether a case involves a procedural competency claim or a substantive
competency claim, different standards are applicable:
To show a substantive violation, an accused must prove an
inability either to comprehend or participate in the criminal
proceedings. . . . To show a procedural violation, the accused must
point to evidence before the trial court that raised a bona fide doubt
about competency. Once such a doubt is known to the trial court, it
must conduct an adequate hearing.
Id.
Flores-Martinez’s defense counsel made an oral motion for a court-ordered
mental competency evaluation in an out-of-state federal facility, but did not
move for a mental competency hearing. The statutory directive contained in 18
U.S.C. § 4241 provides that a criminal defendant whose competency is in
question may be subjected to a mental competency hearing. If neither the
defendant nor the government moves for such a hearing, § 4241(a) requires the
district court to sua sponte conduct a hearing “if there is reasonable cause to
believe that the defendant may presently be suffering from a mental disease or
defect rendering him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings against him or to
assist properly in his defense.” In addition, under § 4241(b), the court “may
order” that a mental competency examination be conducted on the defendant
prior to the competency hearing.
An abuse of discretion standard applies to the district court’s failure to sua
sponte conduct a mental competency hearing and its denial of the defense’s
motion for a mental competency evaluation.4 United States v. Ruston, 565 F.3d

4
If the district court had gone further and made an ultimate competency finding, we
would review that factual finding for clear error. See United States v. McKnight, 570 F.3d 641,
648 (5th Cir. 2009) (“Whether a defendant ‘suffers from a mental disorder or incapacitating
mental illness is a question of fact reviewed under the clearly erroneous standard’ but this
Court takes a ‘hard look’ at the ultimate competency finding.” (citing Moody v. Johnson, 139

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892, 901 (5th Cir. 2009) (“Whether the district court erred in not sua sponte
holding a competency hearing is reviewed for abuse of discretion.”); United
States v. Messervey, 317 F.3d 457, 463 (5th Cir. 2002) (citing United States v.
Davis, 61 F.3d 291, 304 (5th Cir. 1995) (“Whether ‘reasonable cause’ exists to put
the court on notice that the defendant might be mentally incompetent is left to
the sound discretion of the district court.” (citation omitted))); United States v.
Williams, 998 F.2d 258, 263 (5th Cir. 1993). We have consistently observed that
“‘[t]he district court is in the best position to determine the need for a
competency hearing.’” Ruston, 565 F.3d at 901 (citation omitted). However, “[i]f
the trial court received evidence, viewed objectively, that should have raised a
reasonable doubt as to competency, yet failed to make further inquiry, the
defendant has been denied a fair trial.” Mata v. Johnson, 210 F.3d 324, 329 (5th
Cir. 2000).
The Supreme Court has held that there are “no fixed or immutable signs
which invariably indicate the need for further inquiry to determine fitness to
proceed,” noting that “the question is a difficult one in which a wide range of
manifestations and subtle nuances are implicated.” Drope, 420 U.S. at 180.
However, it is clear that “[i]n determining whether the court should order a
mental competency hearing, the court must consider three factors: (1) the
existence of a history of irrational behavior, (2) the defendant’s demeanor at
trial, and (3) prior medical opinion on competency.” Ruston, 565 F.3d at 902
(citing Messervey, 317 F.3d at 463); see also Davis, 61 F.3d at 304 (citing Davis
v. Alabama, 545 F.2d 460, 464 (5th Cir. 1977)). Although all three factors are
“relevant in determining whether further inquiry is required,” under certain
circumstances, “even one of these factors standing alone” may be sufficient.
Ruston, 565 F.3d at 902 (citation omitted).

F.3d 477, 482 (5th Cir. 1998))).

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However, in regard to the factor of the defendant’s demeanor at trial, we
have expressly held that “where trial episodes alone constitute the evidence of
a defendant’s incompetence, those episodes need to be ‘sufficiently manifest’ for
a trial judge to be required to sua sponte order a mental competency exam.”
Messervey, 317 F.3d at 463 (citing Davis, 61 F.3d at 304). For example, in
Messervey, we found that the trial court did not abuse its discretion in refusing
to sua sponte conduct a competency hearing where the only suggestions of
reasonable cause to doubt the defendant’s competency were a few minor trial
episodes. Id.
Moreover, we have explicitly recognized that due process “does not
mandate a full-blown hearing every time there is the slimmest evidence of
incompetency.” Curry v. Estelle, 531 F.2d 766, 768 (5th Cir. 1976) (per curiam)
(citation omitted); see also United States v. Horovitz, 584 F.2d 682, 683 n.3 (5th
Cir. 1978) (per curiam). Indeed, procedural due process only requires that the
procedures be “‘adequate’ to resolve the issue raised,” and what is “adequate”
“flexes with the fact matrix in which it arises.” Curry, 531 F.2d at 768.
Here, Flores-Martinez argues that the district court should have ordered
a mental health examination and then sua sponte conducted a competency
hearing because there was reasonable cause to believe that he might be
incompetent to stand trial. For support, he points to: (1) his demeanor and
behavior in the courtroom; (2) his aggressive, hostile, and volatile encounters
with his counsel; (3) the lack of any prior medical opinion that he was competent
because the sole attempt at a mental health evaluation by Dr. Morón was
inconclusive; (4) the expressed intention to seek a mental health evaluation of
him by his defense counsel from the 2009 illegal reentry case based on his
inability to assist in his own defense; and (5) defense counsel’s belief that he did
not appear to be able to assist in his own defense or make appropriate choices
and decisions about how to proceed below.

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The record does not demonstrate any reasonable cause that would warrant
doubting Flores-Martinez’s mental competency to stand trial. Rather, it reveals
an angry individual refusing to cooperate with and provide assistance to his
defense counsel because he disagrees with the prosecution for a rational—albeit
legally incorrect—reason. As the district court pointedly noted, there is
“something different between being unable and unwilling” to assist counsel. Our
precedents have concluded likewise, expressly holding that “[a] defendant who
has it ‘within his voluntary control to . . . cooperat[e],’ is not incompetent merely
because he refuses to cooperate.” United States v. Simpson, 645 F.3d 300, 306
(5th Cir.), cert. denied, 132 S. Ct. 541 (2011) (quoting United States v. Joseph,
333 F.3d 587, 589 (5th Cir. 2003)).
The majority of Flores-Martinez’s inappropriate outbursts at trial
regarded his father’s military service for the United States and why he felt that
he was being wrongly and unjustly prosecuted. His conduct, while angry and
inappropriate, was not divorced from reality. Each time he was questioned by
the district court, his responses demonstrated that he fully understood the
nature of the proceeding. The basis for his ire—while legally incorrect—is not
irrational: he believed that his father’s military service to this country should
have led to citizenship for his father and, therefore, him. We conclude that the
district court did not err by denying the defense’s motion for a court-ordered
mental competency evaluation and by not sua sponte conducting a mental
competency hearing thereafter.
B. Right to Testify
Flores-Martinez argues that he was deprived of his constitutional right to
testify. As noted above, at the relevant time, Flores-Martinez’s defense counsel
informed the district court that Flores-Martinez wanted to testify, but that “he
wants to talk to the jury about what this Court has ordered liminied [sic] out,
and that’s all he wants to talk about.” (emphasis added). On appeal, Flores-

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Martinez does not challenge the district court’s refusal to reconsider its exclusion
in limine of certain evidence or the propriety of the exclusion of that evidence.
Instead, he argues that the district court’s rulings amounted to a deprivation of
his right to testify and that, had he been permitted to testify, (1) he could have
testified as to matters other than those excluded by the limine order, and (2) the
jury would have had a chance to “‘eyeball’ him and to judge his demeanor and
his mental state.” According to Flores-Martinez, had the jury “‘eyeball[ed]’ him”
while he testified, the jury could have formed reasonable doubt as to whether
Flores-Martinez had the requisite mental state for conviction.
In response, the government argues that the district court did not prevent
Flores-Martinez from testifying at trial. Rather, the government maintains that
the district court did nothing more than uphold its order granting the
government’s motion in limine by prohibiting Flores-Martinez from testifying
regarding matters deemed irrelevant to the proceedings. In addition, the
government maintains that the evidence in the case overwhelmingly established
Flores-Martinez’s guilt, and that the excluded “evidence regarding his father was
no defense to the charges.”
It is well established that “[e]very criminal defendant is privileged to
testify in his own defense, or to refuse to do so.” Harris v. New York, 401 U.S.
222, 225 (1971); see, e.g., Rock v. Arkansas, 483 U.S. 44, 49-53 (1987); Emery v.
Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (“A criminal defendant has a
constitutional right to testify on his own behalf.” (citation omitted)). However,
the right to testify “is not without limitation.” Rock, 483 U.S. at 55; see, e.g.,
United States v. Scheffer, 523 U.S. 303, 308 (1998) (“A defendant’s right to
present relevant evidence is not unlimited, but rather is subject to reasonable
restrictions. A defendant’s interest in presenting such evidence may thus bow
to accommodate other legitimate interests in the criminal trial process.”
(emphasis added; internal footnote, citations, and quotation marks omitted));

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United States v. Pierce, 959 F.2d 1297, 1304 n.13 (5th Cir. 1992) (concluding on
appeal from the denial of relief under 28 U.S.C. § 2255 that defendant’s
contention that his counsel’s “refusal to allow him to testify at the suppression
hearing . . . denied him his constitutional right to testify on his own behalf” was
without merit since “even assuming that the testimony would have been
admissible,” defendant had “failed to demonstrate the relevance of the issue, or
any resulting prejudice”); United States v. Winkle, 587 F.2d 705, 711 (5th Cir.
1979) (concluding on direct appeal that it is “well within [the district court’s]
discretion concerning questions of relevance” to exclude a criminal defendant’s
testimony when it is “irrelevant”). Indeed, “[n]umerous . . . procedural and
evidentiary rules control the presentation of evidence and do not offend the
defendant’s right to testify.” Rock, 483 U.S. at 55 n.11 (citations omitted); see,
e.g., Nix v. Whiteside, 475 U.S. 157, 173-74 (1986) (holding that “there is no right
whatever—constitutional or otherwise—for a defendant to use false evidence,”
and since there is “no permissible choice to testify falsely,” a criminal defendant
is deprived of “neither his right to counsel nor the right to testify truthfully” by
“defense counsel tak[ing] steps to persuade [him] to testify truthfully,” or risk
counsel’s withdrawal).
Here, after conferring with Flores-Martinez, defense counsel informed the
district court that Flores-Martinez only wanted to testify regarding matters that
had been excluded by the motion in limine and requested reconsideration of the
ruling. There was no indication that Flores-Martinez desired to testify on any
other subject; rather, his counsel directly stated to the contrary in his
reconsideration request. Indeed, even when Flores-Martinez was being removed
from the courtroom, his outburst to the jury was regarding the excluded topic of
his father’s military service.
Moreover, the district court granted Flores-Martinez a bill of exceptions
on defense counsel’s motion. He did not take this opportunity to inform the

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district court of what he would have testified about; instead, he refused to speak,
prompting defense counsel’s request to make a proffer. The district court
permitted the proffer, and as earlier stated, the only matters discussed were
those excluded by the district court’s limine order. Thus, the situation, as
unequivocally made known to the district court at the time, was that Flores-
Martinez desired to testify only about matters the court had already ruled
irrelevant. Flores-Martinez does not contend that he had a constitutional right
to testify to irrelevant matters, and the law, as discussed above, is to the
contrary.5
In his brief filed with us on direct appeal, Flores-Martinez argues for the
first time that he could have testified regarding subjects not covered by the
limine order. No objection was raised in this regard below; indeed, the
consistent indication to the district court was that Flores-Martinez only wanted
to testify about the matters excluded by the limine order. See United States v.
Olano, 507 U.S. 725, 731 (1993) (“‘No procedural principle is more familiar to
this Court than that a constitutional right,’ or a right of any sort, ‘may be
forfeited in criminal as well as civil cases by the failure to make timely assertion
of the right before a tribunal having jurisdiction to determine it.’” (citation
omitted)); United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). Accordingly, we review any subjects that Flores-Martinez could have
testified to other than those covered by the proffer and limine order for plain

5
After having been previously removed from the United States subsequent to a felony
conviction, Flores-Martinez was found in the United States without the consent of the Attorney
General or an excuse obviating such consent. See 8 U.S.C. § 1326. Since the matters discussed
in the proffer are irrelevant to the crime of illegal reentry, see United States v.
Treviño-Martinez, 86 F.3d 65, 68 (5th Cir. 1996), and a criminal defendant has no right to
present irrelevant testimony, see, e.g., Pierce, 959 F.2d at 1304 n.13, we cannot say that the
district court committed error by not allowing Flores-Martinez to testify to the jury regarding
these matters.

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error.6 See FED. R. CRIM. P. 52(b); United States v. Ricardo, 472 F.3d 277, 285
(5th Cir. 2006) (applying plain error review on direct appeal to defendants’
argument that the district court’s statements “impermissibly chilled their
constitutional right to testify” because defendants had failed to object at trial);
United States v. Bourgeois, 423 F.3d 501, 506 (5th Cir. 2005) (applying plain
error review on direct appeal to each of defendant’s constitutional challenges
since none were raised in the district court); United States v. Gourley, 168 F.3d
165, 171 n.10 (5th Cir. 1999) (applying plain error review to defendant’s right to
testify argument raised for the first time on direct appeal). Under the plain
error standard, Flores-Martinez must show that (1) it was error to deny him his
right to testify, (2) the error was “clear or obvious, rather than subject to
reasonable dispute,” and (3) the error affected his “substantial rights, which in
the ordinary case means . . . that it ‘affected the outcome of the district court
proceedings.’” Puckett v. United States, 556 U.S. 129, 135 (2009) (citing Olano,
507 U.S. at 732-34). Even if the first three prongs are met, we will consider
exercising our discretion to remedy the error only if the error “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.” Id. (citation
and internal quotation marks omitted).

6
Flores-Martinez argues that he properly preserved his claim regarding the denial of
his right to testify, notwithstanding the absence of a formal objection at trial. On that basis,
he argues that de novo review applies to this constitutional question. We have held that an
objection to the violation of a constitutional right is not inadequate merely because of the
failure to use “the magic words, ‘I object.’” United States v. Johnson, 267 F.3d 376, 380 (5th
Cir. 2001). However, notwithstanding the absence of “magic words,” given (1) defense counsel’s
representation to the district court that Flores-Martinez only wanted to testify about excluded
matters, (2) Flores-Martinez’s outburst regarding his father’s military service, and (3) the
proffer, we cannot agree that Flores-Martinez properly preserved his claim as to matters
outside those covered by the proffer and limine order. See United States v. Potts, 644 F.3d 233,
236 (5th Cir. 2011), cert. denied, 80 U.S.L.W. 3563 (U.S. Apr. 2, 2012) (No. 11-6414)
(“Ordinarily, we review a constitutional question de novo. If, however, a defendant—as
here—does not properly preserve his claim, we review for plain error.” (internal citations
omitted)).

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 No. 11-40376

Here, we have more than the mere “failure to object” that is so often the
subject of plain error review. Instead, we have a contention on appeal that
directly contradicts the representation made at trial that Flores-Martinez
wanted to testify only about excluded matters. Despite Flores-Martinez’s
blanket assertion now that he would have testified to other matters, when the
district court granted Flores-Martinez the opportunity to make a bill of
exceptions, he refused to talk. Then, when his defense counsel made his proffer
in Flores-Martinez’s presence summarizing what Flores-Martinez would have
testified to, the entirety of the proffer only concerned matters that had been
excluded as irrelevant.7
Even assuming arguendo that the district court erred by not permitting
Flores-Martinez to testify regarding the (still) unstated matters, by no means
was the error “clear or obvious,” as required for plain error review. Id. It is
undisputed that the right to testify is a fundamental and personal constitutional
right that only the criminal defendant himself may waive. See, e.g., United
States v. Hung Thien Ly, 646 F.3d 1307, 1313 (11th Cir. 2011) (“Although often
framed as a right to testify, it is more properly framed as a right to choose
whether to testify. . . . This right to choose is personal as well as fundamental,
and the defendant must make this decision himself.” (citing United States v.
Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc))); United States v.
Mullins, 315 F.3d 449, 452 (5th Cir. 2002). However, it is not at all clear or

7
Indeed, if his outburst to the jury regarding his father’s military service was a brief
preview of the testimony he would have given, the suggested practice of permitting
Flores-Martinez to take the stand to see if he would try to testify to anything other than
excluded matters, while usually a good approach, probably would have been imprudent here
since he had repeatedly shown that he neither respected nor accepted the district court’s limine
order. In fact, given defense counsel’s representation that Flores-Martinez only wanted to
testify regarding excluded matters and Flores-Martinez’s repeated defiance of the limine order,
the district court may have concluded—quite reasonably—that permitting Flores-Martinez to
take the stand would infect the integrity of the trial so that only a bill of exceptions or a proffer
would be advisable under the circumstances.

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obvious that the district court must second-guess defense counsel’s
representation to the court that the defendant would only testify regarding
excluded matters in order to ascertain whether the defendant knowingly and
voluntarily waived his right to testify regarding any relevant, non-excluded
matters. See, e.g., United States v. Babul, 476 F.3d 498, 500 (7th Cir. 2007)
(“[C]hoices about trial practice and management . . . are committed to counsel,
not only because they are numerous . . . but also because they are the sort of
choices for which legal training and experience are most helpful. A defendant
may act as his own advocate, but when he chooses to have a lawyer conduct the
defense, the lawyer gets to conduct the defense and not just whisper advice in
the defendant’s ear each time a decision must be made.” (citation omitted));
United States v. Ortiz, 82 F.3d 1066, 1071-1072 (D.C. Cir. 1996) (holding on
direct appeal that the “district court properly relied on counsel’s assertion that
[defendant] had acquiesced in her advice not to testify and made no inquiry of
[defendant] himself,” where “[n]othing in the trial record gave the district court
any reason to doubt” the representation by defendant’s counsel that defendant
had waived his right to testify); United States v. Joelson, 7 F.3d 174, 177 (9th
Cir. 1993) (“Although the ultimate decision whether to testify rests with the
defendant, he is presumed to assent to his attorney’s tactical decision not to have
him testify. The trial court has no duty to advise the defendant of his right to
testify, nor is the court required to ensure that an on-the-record waiver has
occurred.” (internal citations and quotation marks omitted)).
Flores-Martinez points to no authoritative precedent for the proposition
that a district court may not rely upon counsel’s representations—made in the
defendant’s presence—as to the defendant’s intentions in this regard. Indeed,
some courts have even suggested that such a court inquiry may be
inappropriate. See Hung Thien Ly, 646 F.3d at 1314-17; Siciliano v. Vose, 834
F.2d 29, 30 (1st Cir. 1987) (“To require the trial court to follow a special

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procedure, explicitly telling defendant about, and securing an explicit waiver of,
a privilege to testify . . . could inappropriately influence the defendant to waive
his constitutional right not to testify, thus threatening the exercise of this other,
converse, constitutionally explicit, and more fragile right.” (citations omitted)).
Thus, we conclude that the district court did not plainly err in relying upon the
representation by defense counsel that the defendant wanted to testify only to
irrelevant matters.8
We note also that the crime of illegal reentry is not a specific intent crime,
and a mistake of law is thus not a defense. See Treviño-Martinez, 86 F.3d at 68
(“[T]he language of the statute [8 U.S.C. § 1326] belies the existence of a
requirement of specific intent. . . . Congress did not impose a requirement of
specific intent anywhere in the statute nor did it provide that an alien’s

8
Flores-Martinez argues that the right to testify is a constitutional right so basic to a
fair trial that its infraction can never be treated as harmless error. On that basis, he contends
that the denial of the right to testify is a structural error (as opposed to a trial error) and that
it should be reversible per se and not subject to harmless error analysis. First and foremost,
we conclude no error was committed under the facts here presented. Further, “[o]nly in rare
cases has [the Supreme] Court held that an error is structural, and thus requires automatic
reversal.” Washington v. Recuenco, 548 U.S. 212, 218 (2006) (footnote omitted). Flores-
Martinez points to no authority supporting his argument that such an error is structural.
In any event, we need not decide this question because “[h]armless error . . . is a rule
of constitutional law, whereas plain error is a rule of appellate procedure. An error not
susceptible to harmless error review is nevertheless susceptible to plain error review if the
defendant did not object at trial.” United States v. Phipps, 319 F.3d 177, 189 n.14 (5th Cir.
2003) (citing United States v. Shunk, 113 F.3d 31, 36 (5th Cir. 1997)). Indeed, just because a
structural error “requires reversal when preserved does not mean that it likewise requires
reversal when not preserved.” Shunk, 113 F.3d at 36 (citing United States v. Jobe, 101 F.3d
1046, 1061-62 (5th Cir. 1996)). Even assuming there was error, since we conclude that Flores-
Martinez cannot show the error was “clear or obvious,” we need not address whether a
structural error alleviates a defendant’s burden under plain error to show prejudice. See
United States v. Marcus, 130 S. Ct. 2159, 2164-65 (2010) (pointing out that previous Supreme
Court cases addressing the plain error standard have “noted the possibility that certain errors,
termed ‘structural errors,’ might ‘affect substantial rights’ regardless of their actual impact on
an appellant’s trial,” but disposing of the case without resolving the question because the error
at issue was “non-‘structural’”); Puckett, 556 U.S. at 140 (“This Court has several times
declined to resolve whether ‘structural errors’—those that affect ‘the framework within which
the trial proceeds,’—automatically satisfy the third prong of the plain-error test. Once again,
we need not answer that question . . . .” (citations omitted)).

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 No. 11-40376

reasonable belief that he was legally entitled to reenter the United States is a
defense to criminal liability.”). Accordingly, not only is Flores-Martinez’s belief
that he was entitled to reenter the United States because of his father’s military
service not a defense, but also his “innocent” mental state is irrelevant. Thus,
the argument that he was denied the opportunity to have the jury “‘eyeball’ him”
during his testimony to determine his mental state is unavailing. See id.
AFFIRMED.

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