United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 9, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_______________
No. 01-31119
_______________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
SIDNEY JOSEPH,
Defendant - Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
_________________________
Before JOLLY, HIGGINBOTHAM, and MAGILL,* Circuit Judges.
MAGILL, Circuit Judge:
A jury convicted defendant-appellant Sidney Joseph of the
following: three counts of bank robbery, in violation of 18 U.S.C.
§ 2113(a) & (d) (2000); carjacking, in violation of § 2119; and
various weapons charges related to the above crimes, in violation
of §§ 924(c)(1)(A)(ii), 924(a)(2), and 922(g)(1). The district
court1 sentenced Joseph to a total of 462 months' incarceration.
*
Circuit Judge of the Eighth Circuit, sitting by designation.
1
The Honorable Edith B. Clement, United States District
Judge for the Eastern District of Louisiana.
Joseph appeals his convictions on five grounds: (1) the
district court erred in concluding Joseph was competent to stand
trial; (2) the district court erred in permitting Joseph to
represent himself; (3) the district court abused its discretion by
placing Joseph in a stun belt and shackles during trial; (4) the
district court abused its discretion in granting an upward
departure; and (5) the district court erred in refusing to suppress
statements made by Joseph prior to the reading of his Miranda
rights. Our jurisdiction is proper pursuant to 28 U.S.C. § 1291.
For the following reasons, we affirm.
I.
First, Joseph argues that the district court erred in finding
him competent to stand trial. "Due process prohibits the
prosecution of a defendant who is not competent to stand trial."
Dunn v. Johnson, 162 F.3d 302, 305 (5th Cir. 1998) (citation
omitted). A defendant is competent to stand trial if "he has the
present ability to consult with his lawyer with a reasonable degree
of rational understanding and has a rational as well as factual
understanding of the proceeding[] against him." Id. (citation and
internal quotations omitted). We "will not reverse the district
court's determination [of competence] unless it is clearly
arbitrary or unwarranted--a species of clear error review--but this
mixed question of fact and law requires us to re-analyze the facts
and take a hard look at the trial judge's ultimate conclusion."
2
United States v. Doke, 171 F.3d 240, 247 (5th Cir. 1999) (citation
and internal quotations omitted).
Joseph's counsel first raised the issue of competency three
days before the scheduled beginning of trial. The district court
continued the trial and ordered psychiatric evaluations. Joseph's
psychiatrist stated that she suspected mental illness, but could
not make a conclusive determination. The court appointed
psychiatrist testified that Joseph was uncooperative but that "[i]t
is within his voluntary control to be cooperative or not
cooperative." This psychiatrist noted that there could be some
underlying paranoia, but that Joseph did not exhibit the usual
symptoms of paranoia. The court appointed psychiatrist concluded
that Joseph "certainly is in possession of a lot of his faculties."
In addition, there was testimony at a competency hearing from
sheriffs, marshals, a pretrial service officer, and an FBI agent
indicating that Joseph consistently responded appropriately to law
enforcement requests and engaged in conversations regarding his
upcoming trial. There was testimony that on the day of one of his
psychiatric evaluations, Joseph responded appropriately to law
enforcement personnel, but then refused to cooperate with the
psychiatrist.
We conclude that this evidence as a whole provided a sound
basis for the district court's conclusion that Joseph was
competent. Therefore, we affirm the district court's decision that
Joseph was competent to stand trial.
3
II.
Second, Joseph argues that the district court erred by
allowing him to represent himself at trial, claiming that his
waiver of the right to counsel was not made knowingly and
intelligently. "We review constitutional challenges de novo."
United States v. Walker, 148 F.3d 518, 528 (5th Cir. 1998)
(citation omitted).
A defendant in a criminal trial has a constitutional right to
proceed without counsel, but only when he knowingly and
intelligently elects to do so. See Faretta v California, 422 U.S.
806, 833-35 (1975); see also Dunn, 162 F.3d at 307 (citations and
internal quotation omitted). A defendant who wishes to waive the
right to counsel "'should be made aware of the dangers and
disadvantages of self-representation, so that the record will
establish that "he knows what he is doing and his choice is made
with his eyes open."'" Dunn, 162 F.3d at 307 (quoting Faretta, 422
U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317
U.S. 269, 279 (1942))).
In determining whether a defendant has effectively waived the
right to counsel, the district court must consider various factors,
including defendant's age, education, background, experience, and
conduct. United States v. Davis, 269 F.3d 514, 518 (5th Cir. 2001)
(citation omitted). The court must ensure that the waiver is not
the result of coercion or mistreatment, and must be satisfied that
the accused understands the nature of the charges, the consequences
4
of the proceedings, and the practicality of waiving the right to
counsel. Id. (citation omitted).
On the morning of trial, Joseph's appointed defense counsel,
Mr. George Chaney, Jr., informed the court that Joseph did not wish
to be represented by counsel because Joseph lacked confidence in
his counsel. After expressing a desire to proceed pro se, the
court explained to Joseph the disadvantages of self-representation.
The court provided: "I seriously recommend to you that you allow
Mr. Chaney and his assistant to represent you . . . because they
are very good lawyers." After informing Joseph that Mr. Chaney
would remain as stand-by counsel, the court reiterated its warning:
"It is my strong recommendation to you that you allow [Mr. Chaney]
to do the questioning, that you allow him to do the cross-
examination, and that you allow him to put on evidence if there is
any evidence on your behalf." After explaining that Joseph had
shown no good cause for the appointment of a different defense
counsel, the district court urged once again, "I am discouraging
you from representing yourself." Despite these warnings, Joseph
proceeded pro se.2
The record indicates that the district court properly informed
Joseph of the dangers and disadvantages of self-representation
2
On the second day of trial, Joseph again expressed a desire
to represent himself, and Mr. Chaney again was appointed stand-by
counsel. On the third and final day of the trial, after direct
examination of the second witness, Joseph requested that Mr. Chaney
be reappointed, and Mr. Chaney completed the trial as counsel.
5
multiple times before the trial commenced. In addition, Joseph
made comments to the court about the superceding indictment issued
against him and the severity of the sentence he was facing. These
indicate that Joseph understood the nature of the charges against
him and the consequences of the proceedings.
We affirm the district court's decision to permit Joseph to
represent himself, as the requirements for a knowing and
intelligent waiver of representation by counsel were satisfied.
III.
Third, Joseph argues that the district court abused its
discretion by placing Joseph in a stun belt and shackles during the
trial. We review the decision to restrain an obstreperous
defendant for abuse of discretion. Illinois v. Allen, 397 U.S.
337, 343-44 (1970); United States v. Ellender, 947 F.2d 748, 760
(5th Cir. 1991) (citation omitted).
Shackling is an inherently prejudicial practice, permitted
only when justified by an essential state interest specific to each
trial. Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986). This court
has held that an essential state interest justifying shackling is
found where there is a danger of escape or injury to the jury,
counsel, or other trial participants. United States v. Hope, 102
F.3d 114, 117 (5th Cir. 1996) (citation omitted). The district
court is required to state, outside the presence of the jury, the
reasons for which it has chosen to shackle the defendant. Id.
(citation omitted).
6
At the request of the district court, the Marshal's Service
testified outside of the presence of the jury but on the record as
to Joseph's behavior. This testimony reveals that Joseph was both
physically and verbally combative on the way to and during trial.
In addition, two shanks, or homemade knives, were found on Joseph's
person on the third morning of trial. Based on these events, the
marshals recommended the use of a stun belt and shackles.
Concluding that Joseph posed a risk of harm to the marshals, court
officers, and others present at trial, the district court permitted
the use of these restraints.
We find no abuse of discretion in this action. The district
court properly stated the reasons for the use of restraints.
Further, there is no evidence that the jury was prejudiced by the
presence of these restraints, as the stun belt was not activated
during the trial, and both the belt and the shackles were kept out
of the view of the jury. Accordingly, we affirm the district
court's decision to restrain Joseph.
IV.
Fourth, Joseph argues that the district court erred in
granting an upward departure based on his criminal history. We
review a departure from the applicable guideline range for abuse of
discretion. United States v. Delgado-Nunez, 295 F.3d 494, 497 (5th
Cir. 2002) (citation omitted). "There is no abuse of discretion if
the judge provides acceptable reasons for departure and the degree
of departure is reasonable." Id. (citations and internal
7
quotation omitted).
After a thorough review of the record, we find that the
district court did provide acceptable reasons for its departure;
specifically, based on the totality of the circumstances, a
Criminal History Category of VI was most appropriate for Joseph.
Additionally, we find the upward departure of an additional 42
months for the bank robbery convictions reasonable under the
circumstances. Accordingly, we affirm the district court's
sentence.
V.
Finally, Joseph argues that the district court erred in
refusing to suppress a statement he made prior to the reading of
his Miranda rights. Police and FBI agents located Joseph at a
hotel. After ordering him out of one of the hotel rooms, an agent
informed Joseph that he was under arrest and began a pat-down. At
this time, but before the reading of his Miranda rights, an officer
asked Joseph if he had a weapon on him. Joseph responded, "[n]o,
sir, not on me. There's one in the room." A handgun was found in
the hotel room. Joseph argues that this statement should have been
suppressed because it was made prior to his Miranda warnings.
"We review a district court's denial of a motion to suppress
by (1) viewing the facts in the light most favorable to the
prevailing party, (2) accepting the district court's factual
findings unless clearly erroneous, and (3) considering all
questions of law de novo." United States v. Lampazianie, 251 F.3d
8
519, 523 (5th Cir. 2001) (citation omitted); see also United States
v. Aucoin, 964 F.2d 1492, 1498 (5th Cir. 1992) (citations omitted).
However, the district court's ruling, even if erroneous, does
not merit reversal of the defendant's conviction unless it affected
a substantial right. Aucoin, 964 F.2d at 1499. "In the context of
suppression of evidence, the test for harmless error is 'whether
the trier of fact would have found the defendant guilty beyond a
reasonable doubt [if the evidence had been suppressed].'" Id.
(citation omitted). Therefore, Joseph must show both that (1) the
district court erroneously admitted the statement, and (2) the
error was so prejudicial as to produce a different verdict.
Joseph has not met this burden. Even assuming, arguendo, that
the statement was admitted erroneously, based on the subsequent
discovery of the gun in the hotel room from which Joseph was
removed and subsequently arrested,3 we find that the jury would
have found Joseph guilty beyond a reasonable doubt even without the
statement's admission. Accordingly, we affirm the district court's
admission of the statement.
VI.
Accordingly, we affirm Joseph's conviction and sentence.
3
Joseph does not challenge the admission of the gun into
evidence; instead, he challenges only the admission of the
statements made regarding the gun.
9