[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 22, 2008
No. 06-13782 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00251-CR-01-BBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL A. DIAZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 22, 2008)
Before BIRCH, CARNES and COX Circuit Judges.
PER CURIAM:
Michael A. Diaz (“Diaz”) appeals his convictions for armed bank robbery,
use of a firearm during a crime of violence, and possession of a firearm by a
convicted felon. On appeal, Diaz argues that his waivers of his rights to counsel
and to a jury were not knowing and voluntary. After reviewing the record and the
parties’ briefs, and with the benefit of oral argument, we conclude that Diaz did
not knowingly waive his right to a jury trial.1 Accordingly, we VACATE Diaz’s
convictions and REMAND.
I. BACKGROUND
Armed, Diaz twice robbed the same Atlanta bank on different dates in 2004.
He was arrested by officers of the Atlanta Police Department as he fled from the
bank after the second robbery.2 By a superseding indictment, Diaz was charged
with two separate counts of armed bank robbery, in violation of 18 U.S.C. §§
2113(a) and (d), two counts of using and carrying a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A), and one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).
1
Because we remand this case to the district court based upon our conclusion that Diaz’s
jury trial waiver was invalid, we do not address whether or not Diaz validly waived his right to
counsel. However, the district court is directed to revisit this matter in light of our opinions in
Jones v. Walker, ___ F.3d ___ , No. 04-13562, (11th Cir. August 20, 2008) (en banc) and United
States v. Garey, ___ F.3d ___, No. 05-14631 (11th Cir. August 20, 2008) (en banc).
2
At the time Diaz was arrested, he was on supervised release for a prior conviction for
felon in possession of a firearm in the Eastern District of Louisiana.
2
Diaz’s initial counsel had retained a mental health expert and requested a
continuance because he believed that Diaz was suffering from a mental illness.
Diaz sent a letter to the district court, in which he complained about his counsel.
At a hearing regarding Diaz’s letter, Diaz stated that his name was actually
D’Ineiehaimaye D’Inemani, not Michael Diaz, and he sought to discharge his
counsel. Diaz’s counsel explained to the court that, according to Diaz, after the
dates of the attempted robberies, a personality named D’Ineiehaimaye D’Inemani
had been “re-earthed” into the body formerly occupied by Michael Diaz.
Therefore, while Diaz may have committed the crimes when his personality
inhabited the body, D’Ineiehaimaye D’Inemani claimed to be innocent of the
charges. The district court permitted Diaz’s counsel to withdraw and substitute
another federal defender, Timothy Saviello (“Saviello”) to represent Diaz.
The court held a hearing to determine whether Diaz was competent to stand
trial. Dr. Michael Hilton (“Hilton”), a forensic psychiatrist who evaluated Diaz at
defense counsel’s request, testified that his evaluation included an three-hour
interview with Diaz, but he did not administer any written or oral tests. During the
interview, Diaz said that he was an individual called “Ieh,” and that he had
experienced roughly six personality changes since his adolescence. R5 at 10.
According to Diaz, each new personality was imbued only the information known
3
by the preceding personality. Hilton testified that Diaz either truly believed that
these personality changes had occurred, or that Diaz spent a “tremendous amount
of time memorizing these characters in anticipation of” fabricating a mental
illness. Id. at 11. Hilton concluded that Diaz was expressing a true belief. Id. at
18. Hilton assessed Diaz’s intelligence as generally average and that his IQ was at
the low end of the average range. Hilton was asked for his reaction to a report
prepared by a government expert which assessed Diaz’s IQ at 79. Hilton opined
that an individual with such an IQ normally would not be able to convincingly
fake a mental illness, though Hilton conceded on cross-examination that it was
possible that Diaz fooled him into diagnosing him as schizophrenic. He testified
that he believed that there was a good chance that Diaz was mentally ill and
showed signs of malingering.
Upon questioning by the district court, Hilton stated that Diaz could recount
the events that resulted in the charges against him, and Hilton agreed with the
district court that Diaz had “a reasonable degree of rational understanding about
what’s going on, why he’s in the situation he’s in.” Id. at 52. Saviello then
informed the court that Diaz had prepared several letters that he wished to read.
Diaz began by reaffirming that his true name was D’Ineiehaimaye D’Inemani. Id.
at 56. He then read two letters, which were about an entity called “D.I.” Id. at 58-
4
64. In another letter, Diaz claimed that he had not been examined by qualified,
impartial doctors, and had not received professional representation. In a final
letter, Diaz stated that Hilton’s report was fair but the report of the government’s
expert was forged and contained lies.
The government called Dr. Jorge Luis, a Bureau of Prisons forensic
psychologist, who had examined Diaz over a one-month period by order of the
court. Luis testified that Diaz refused to acknowledge himself as Michael Diaz
and claimed to be “another entity” during their initial meeting. Id. at 78-80. Luis
gave, or attempted to give, a number of oral and written tests to Diaz. According
to Luis, the results of Diaz’s I.Q. tests placed him in the “slightly below average”
to “average” range of intelligence, depending on the test. Id. at 95-97. Test
results also showed that Diaz was not suffering from neuropsychological damage
or disease. An initial test indicated that Diaz may have been malingering, and a
follow-up test indicated a 100 percent chance that Diaz was fabricating his
symptoms. Id. at 97-104. Luis also tested Diaz’s understanding of trial
proceedings and his competency to stand trial. The results of that test indicated
Diaz was incompetent, but they also indicated that he was feigning incompetence.
Id. at 112-13. Luis diagnosed Diaz with malingering and with a personality
disorder not otherwise specified, with schizotypal and antisocial features. Luis
5
opined that Diaz’s personality disorder did not affect his competency to stand trial
or to assist in his defense.
Following this hearing, Saviello submitted a brief arguing that Diaz was not
competent to stand trial, and that Hilton’s findings and conclusions carried more
weight than Luis’s because Hilton used a more complex methodology. Through
counsel, Diaz moved to substitute his attorney, arguing that his attorney had
provided insufficient representation. The district court denied Diaz’s motion for
new counsel, finding that Diaz had failed to state good cause for a new lawyer,
and that he did not have the right to be represented by a particular lawyer. The
district court also ruled that Diaz was competent to stand trial, finding that Diaz
understood the nature and consequences of the proceedings against him and that
Diaz could assist properly in his defense.
In pretrial discussions on the day of Diaz’s trial, Diaz stated that he had
motions to present. He began with a motion of “identity mix-up.” R7 at 4. Diaz
again stated that his name was D’Ineiehaimaye D’Inemani and said that he was
innocent of the charges against Michael Diaz, who was dead, having “lived out
transitional transformation until the next one, until D’Ine’s entity transcendents
even in incarnation and re-Earth experience.” Id. Diaz next moved to dismiss
Saviello and to proceed pro se, explaining that he did not want to be “under the
6
wardship of the court.” Id. at 6. The district court responded that Diaz was
“accused of a very serious crime” and that the court was preparing to have a jury
hear the evidence against him, and asked whether Diaz had any legal training. Id.
at 7. Diaz did not answer the question. The court again asked whether he had “any
legal training whatsoever,” and commented that this was a “very serious
proceeding with very serious consequences” and that he would be “making a
terrible mistake to try to proceed without a lawyer.” Id. Diaz responded that his
ability to speak on his own behalf was being “neglected” and that his ability to
prepare a proper defense team was limited. Id. at 7-8.
The court then asked Diaz directly whether he was requesting to proceed
without a lawyer. Diaz returned to a discussion of his motion regarding
jurisdiction and did not answer the question. Saviello informed the court that Diaz
previously had stated his desire to represent himself and argued that, under
Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680 (1993), Diaz was competent to
waive his right to counsel since he had been found competent to stand trial. R7 at
10-11. The district court then stated that, if it was Diaz’s request to proceed pro
se, based on the Godinez standard, Diaz could do so, but Saviello would remain as
stand-by counsel. Id. at 14.
7
The district court then told Diaz that it would ask Saviello to help him pick
a jury, and Diaz stated that he did “not want any juries infringed upon D’Ine
because they are not of D’Ine peers or D’Ine peoples but the plebeians and
colonizers [] of this occupational imperialistic power structure. I do not want no
juries infringed upon me.” Id. at 16-17. The district court asked Diaz if he was
saying that he wanted to proceed with a bench trial instead of a jury trial, and Diaz
responded that he did “not want no jurors, any jurors infringed upon
D’Ineiehaimaye.” Id. at 17. The district court asked Diaz to explain what he
meant by “infringed upon,” and Diaz responded that he meant “forced upon
D’Ine” and that it was not his will “to have this mockery of justice.” Id. Diaz
stated that he understood the court’s explanation that, if there was no jury to try
the case, then the district court would try it. Id. Again, the district court asked
Diaz if he wanted to proceed with a bench trial instead of a jury trial, and, again,
Diaz responded that he did not want “any jury infringed upon D’Ine.” Id.
After explaining the jury selection process, the role of the jury, and what
Diaz’s right to a jury trial entailed, the court stated that, Diaz could waive his right
to a jury, although the court wanted him to understand that his right was
guaranteed by the Constitution. Id. at 17-18. Diaz responded that he did not
recognize the court’s governing authority over D’Ineiehaimaye. Id. at 18. The
8
district court considered Diaz’s statement non-responsive and stated that Diaz had
to make a clear waiver of his right to a jury. Id. The district court then told Diaz
that, “unless you can tell me that you understand your constitutional right to a jury
and that you want to waive it, I’m going to bring the jury up here.” Id. at 18-19.
Diaz again responded that he did not recognize the district court’s authority. Id. at
19. The district court then stated that Diaz would have the opportunity to prove to
the jury that he was not the person who had committed the robberies and further
stated that Diaz’s waiver of his right to counsel was a “very serious thing” and
opined that eventually, during the trial, Diaz would “see how badly” he would
need Saviello’s assistance. Id.
The district court suggested to Diaz that he should allow Saviello to make
the opening statement when the jury arrived. Id. at 80. Diaz reiterated his position
that any jurors would be an infringement upon D’Ine because they were not of his
peers or people. The district court again asked Diaz if he wished to have a bench
trial instead of a jury trial, and Diaz responded, “Well, I understand what you're
saying as far as my right to waive it, but, again, I don’t recognize the court as
having –” Id. The district court interrupted Diaz and stated that it had to be “one
or the other,” and Diaz responded that he was “firm on the one and I don’t wish
the jurors to be infringed upon.” Id. at 81. Saviello stated that he discussed the
9
right to a jury with Diaz he believed that Diaz understood that right. Id. The court
then asked Saviello if Diaz was waiving that right and if Saviello thought Diaz
understood what he was waiving. Id. Saviello responded that he discussed the
rules of the court and his rights under the Constitution with Diaz, and he believed
that Diaz understood, but did not feel bound by those rules or the Constitution. Id.
at 81-82. Saviello stated that Diaz would be willing to give up his right to a jury,
but Diaz did not want his waiver to be misconstrued as an acquiescence to the
authority of the district court. Id. at 82. The district court asked Diaz if his
attorney “sa[id] that pretty well;” Diaz responded “[y]es” and also asked to have a
hearing at the International World Court. Id.
The district court informed Diaz that the waiver of his right to a jury must
be in writing, provided a waiver form to Diaz, and asked Saviello to review it with
him. Id. at 83. Saviello stated that Diaz would not sign the form because Diaz
believed that his written motion and the ensuing discussion sufficed to waive his
right to a jury trial, and Diaz was not inclined “to engage in a contract.” Id. at
83-84. The district court responded that Diaz’s written motion did not include a
clear enough request to waive his right to a jury. Id. at 84. Diaz responded that he
would not sign the document because, by doing so, he would be surrendering to
the court’s jurisdiction. Id. He again said that he did not wish to have those jurors
10
infringed upon him, since they were not of his people or peers. Id. After the court
reiterated that Diaz’s reference to his motion was insufficient for Diaz to waive his
right to a jury Diaz responded, “It is my right. It is my right. I would think that
would be enough.” Id. at 85. The district court stated that “for me it’s not,” to
which Diaz responded, “In other words, my right is just being denied?” Id. The
district court said that Diaz simply had failed to acknowledge that he was advised
of his right and understood what it meant to waive it. Id. Diaz then indicated that
he had been advised of his right to a jury and acknowledged that it was a
constitutional right. Id. The district court asked Diaz if wanted to proceed
without a jury, and Diaz responded, “Exactly – no. I don't want a jury infringed
upon.” Id. Diaz then repeated his position that the district court did not have
governing authority and that he wished to proceed in the International World
Court. Id. at 85-86.
The district court obtained signatures to the court’s jury waiver form from
Saviello and the government and then asked Diaz if he understood that the trial
would proceed without a jury. Id. at 86. Diaz responded, “I understand that my
right – well, yeah, I understand what you’re saying.” Id. at 86-87. The district
court again asked Diaz if he was stating in his motion that he did not want a jury,
and Diaz responded, “What I’m saying is that they are not of the D’Ineiehaimaye
11
peers or D’Ineiehaimaye peoples.” Id. at 87. When the district court repeated its
question, Diaz stated, “I’m saying that I don’t recognize the jury, as well as the
court, because they aren’t part of the same.” Id. The district court then stated,
“You can have a jury or you cannot have a jury. Which do you want?” Id. Diaz
responded, “I can have a jury. I can have a jury. I mean you want me to choose
. . . to be prosecuted?” Id. at 88. Asked again whether he wanted to have a jury,
Diaz replied that he did not recognize the jury or the jurisdiction of the district
court, and further stated, “I don’t recognize the jury. I’m not saying I don’t want
to have a jury.” Id. The district court told Diaz that he could have a jury, and Diaz
again said that he wanted to be heard by the International World Court where his
people and peers would render assistance and support. The district court again
asked if he wanted a jury and Diaz pleaded the Fifth Amendment, claiming that he
was being entrapped. Id. at 88-89. After an off-the-record discussion with the
government and Saviello, the district court found that Diaz’s written motion
constituted a waiver of his right to a jury and expressed concern that it would be
error to force Diaz to have a jury when he did not want one. Id. at 89. The district
court acknowledged that Diaz had not signed the waiver but found that he had
made the request orally and in writing. Id. Diaz objected to Saviello’s signature
on the waiver form on the grounds that Saviello did not represent him. Id. at 90.
12
The district court proceeded to hold a bench trial and found Diaz guilty of
all five counts of the superseding indictment. The district court again determined
that Diaz did not suffer from any mental disease or defect that rendered him unable
to understand the nature and consequences of the proceedings. The district court
also noted that, even though Diaz had relieved Saviello as his counsel, they had
consulted throughout the trial, including each time the district court asked Diaz if
he had an objection, wished to cross-examine a witness, or wished to make a
statement. The district court subsequently sentenced Diaz to a total term of 584
months of imprisonment. This appeal followed.
II. DISCUSSION
Diaz argues that the record is insufficient to establish that he knowingly and
voluntarily waived his right to a jury trial. Diaz argues that, absent a written
waiver, his request that a jury not be “infringed” upon him was an insufficient
waiver of his right to a jury trial, because his statements in the record imply that he
objected to the composition of the jury, not the jury itself, and the court did not
discuss fully the role of the jury in the trial.
“The adequacy of a jury trial waiver is a mixed question of fact and law
which we review de novo.” United States v. Farris, 77 F.3d 391, 396 (11th Cir.
1996). A defendant may waive his Sixth Amendment right to a jury trial when: (1)
13
he gives “express, intelligent consent”; (2) the government consents; and (3) the
waiver is “approved by the responsible judgment of the trial court.” Adams v.
United States ex rel. McCann, 317 U.S. 269, 277-78, 63 S. Ct. 236, 241 (1942).
The right to a jury is a personal right that the defendant himself must waive.
United States v. Joshi, 896 F.2d 1303, 1307 (11th Cir. 1990). Whether a
defendant’s waiver of a jury trial is intelligent and knowing depends on the
“unique circumstances of each case.” Adams, 317 U.S. at 278, 63 S. Ct. at 241.
Further, under the Federal Rules of Criminal Procedure, “[i]f the defendant is
entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a
jury trial in writing; (2) the government consents; and (3) the court approves.”
Fed. R. Crim. P. 23(a). We have explained that
the purpose of Rule 23(a) is to ensure that a criminal defendant is
aware of his jury right before waiving it and that any waiver is
personal and unequivocal[;] . . . we require strict compliance with the
rule. Thus, reversal is warranted where there is no written waiver
signed by the defendant in the record and the defendant asserts either
that he was unaware of his jury right or that he did not consent to its
waiver. This is not to say that [we] will invariably grant relief for
purely technical violations of the rule, as where a defendant
knowingly acquiesced in a waiver which was never reduced to
writing. If the defendant admits, or the government plainly
demonstrates, that at the time of the waiver the defendant was not
ignorant of his jury right and consented to the waiver, reversal would
not be in order, for the defendant cannot complain on appeal of an
alleged error invited or induced by himself.
14
United States v. Garrett, 727 F.2d 1003, 1012 (11th Cir. 1984).
In this case, Diaz did not sign the district court’s jury trial waiver form; the
form was signed only by Saviello, who was acting as stand-by counsel at the time,
the government, and the district judge. Prior to trial, Diaz had made a motion in
which he challenged the district court’s subject matter jurisdiction and requested
not “to have these jur[o]rs infringed upon D’Ine as they are not of Ine peoples nor
peers.” R2-103 at 1. Therefore, we consider whether or not Diaz effectively
waived his right to a jury trial through his written motion. Based on Diaz’s
motion, and his pre-trial statements regarding that motion in the district court, we
find that Diaz was objecting to the composition of the persons in the jury pool.
First, Diaz appears to have attempted to waive his right to a jury trial, but then,
when repeatedly asked if he wanted to proceed without a jury, Diaz responded: (1)
“Exactly – no. I don’t want a jury infringed upon”; (2) “What I’m saying is that
they are not of the D’Ineiehaimaye peers or D’Ineiehaimaye peoples”; and (3)
“I’m saying that I don’t recognize the jury, as well as the court, because they aren’t
part of the same.” R7 at 85, 87. When asked whether or not he wanted to have a
jury trial, Diaz questioned whether the district court was allowing him to choose
whether to be prosecuted. Id. at 88. Asked again whether he wanted a jury, Diaz
15
responded, “I don’t recognize the jury. I’m not saying I don’t want to have a
jury.” Id.
When considered as a whole, the court’s discussion with Diaz about his
right to jury trial reflects that Diaz was unsatisfied with the persons that would
form the jury, not that he wanted a bench trial. We recognize that isolated portions
of the record could be viewed as a waiver of Diaz’s right to a jury trial. For
example, when viewed apart from the remainder of the hearing, Diaz’s agreement
with his attorney’s statement that he was willing to waive his constitutional right
to a jury appears to be an unequivocal waiver. However, even after agreeing with
counsel’s statement, Diaz again indicated that he did not wish to have those jurors
infringed upon him since they were not of his people or peers, which to us
suggests that Diaz’s continuing objection was to the composition of the jury, not
the use of a jury as the factfinder at trial. See id. at 84. Diaz did not sign the
waiver of jury form, and the district court did not pursue the issue in enough detail
to enable us to discern whether or not Diaz was attempting to waive his right to a
jury trial through his written motion. Accordingly, we conclude that Diaz did not
validly waive his right to a jury trial.
16
III. CONCLUSION
Diaz appeals his convictions for armed bank robbery, use of a firearm
during a crime of violence, and possession of a firearm by a convicted felon. Diaz
argues that his waivers of his rights to counsel and to a jury were not knowing or
voluntary. We conclude that Diaz did not effectively waive his right to a jury trial
because he did not sign the district court’s jury waiver form, and his motion and
statements regarding his intent to waive his right to jury trial were equivocal.
Accordingly, we VACATE Diaz’s convictions and REMAND this case to the
district court. VACATED AND REMANDED
17
United States v. Diaz
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2008-08-22
Citations: 540 F.3d 1316
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