United States v. Bernard

• Citation: 708 F.3d 583
• Decision Date: 28 February 2013
• Docket Number: No. 11–4054.,11–4054.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Defonte BERNARD, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

708 F.3d 583

UNITED STATES of America, Plaintiff–Appellee,

v.Michael Defonte BERNARD, Defendant–Appellant.

No. 11–4054.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 6, 2012.

Decided: Feb. 28, 2013.

ARGUED:Juan A. Arteaga, Simpson Thacher & Bartlett, LLP, New York, New York, for Appellant. Yvonne Victoria Watford–McKinney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:William T. Russell, Jr., Jeffrey E. Baldwin, Simpson Thacher & Bartlett, LLP, New York, New York, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before SHEDD, DIAZ, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge THACKER wrote the majority opinion, in which Judge SHEDD joined. Judge DIAZ wrote a dissenting opinion.

OPINION

THACKER, Circuit Judge:

Michael Defonte Bernard (“Appellant”) appeals the district court's decision allowing him to represent himself at trial despite his questionable mental capacity. Appellant contends that the Supreme Court's decision in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), established the broad legal principle that once a borderline competent defendant seeks to represent himself at trial, the district court must conduct an additional inquiry and hold the defendant to a higher standard of competency than that required to stand trial. But Edwards addressed only the question of whether the Constitution permits a court to force counsel on a criminal defendant who, although mentally ill, is nonetheless competent to stand trial. Id. at 177–78, 128 S.Ct. 2379.

Here, however, the district court granted Appellant's request to represent himself. As such, this case is more akin to Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), which held, “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Id. at 399, 113 S.Ct. 2680 (emphasis in original). Because we reject Appellant's interpretation of Edwards and are satisfied that the district court applied the correct legal standard, we affirm.

I.

A.

Appellant has a long history of mental illness. Emotionally and physically abused as a child, Appellant has suffered for many years from severe depression and mental illness, including chronic schizophrenia and paranoia. He has attempted suicide at least three times and has been involuntarilycommitted to mental health institutions on at least four separate occasions. On many of these occasions, Appellant was found to be abusing cocaine and marijuana to cope with his mental illness.

On April 22, 2009, the grand jury returned an indictment charging Appellant with, among other things, possessing with the intent to distribute and conspiring to possess with the intent to distribute 50 kilograms or more of marijuana, and possessing a firearm in furtherance of a drug trafficking offense. After concerns were raised respecting Appellant's mental condition, the district court ordered that he be evaluated. A government psychologist recommended Appellant be found incompetent to stand trial because of his schizophrenia, paranoid delusions, and disorganized thought processes. On October 7, 2009, the district court held a competency hearing during which it found Appellant incompetent and ordered him to receive treatment.

In a report dated March 22, 2010, a second government psychologist recommended Appellant be found competent to stand trial because the antipsychotic, antidepressant, and antianxiety medication Appellant was taking enabled him to sufficiently understand the judicial proceedings against him and to assist his counsel.

On June 4, 2010, the district court held a second competency hearing wherein it addressed Appellant's competency to stand trial and defense counsel's motion to withdraw, which was based on Appellant's request to proceed pro se. ¹ After defense counsel told the district court, “we do not oppose a finding that [Appellant] is competent to stand trial,” defense counsel addressed Appellant's request to represent himself as follows:

There's a case called United States v. Morano, M–O–R–A–N–O, which says that if they—the court uses the same standard in determining whether a defendant is competent to waive assigned counsel.

And since that standard has been met, I believe that you could find that he is competent to waive counsel. And he does have a motion that he wants to bring to the court's attention, that he wants to appear pro se and have me assigned as standby counsel.

Judge, I have warned him about it, but that's his feeling. He feels very strongly about it, and I've not been able to educate him or advise him that I don't think it's in his—actually in his total best interest. And so that's the motion that he wants the court to hear today.

J.A. 62–63.² The district court thereafter engaged in colloquy with Appellant concerning Appellant's request to waive counsel.³ The court granted defense counsel's motion to withdraw and granted Appellant's request to waive counsel, though Appellant consented to retaining standby counsel.

The district court subsequently held a bench conference with counsel for the Government and defense counsel to discuss Appellant's competency going forward. The court told counsel, “I'm frank to say that I'm not real comfortable with this.” J.A. 82. Regarding Appellant's competency to stand trial, the district court further recognized, “the situation today may not be the same tomorrow.... It's sort of a fluid situation.” Id. at 84. The court elaborated,

I mean, you know, competency or the question of insanity has a temporal quality. It has a qualitative aspect and a quantitative aspect. Some people can be perfectly rationale [sic].... And as of this moment, I'm satisfied, but I cannot tell you that I will be at any time in the future.... It's temporal, but also this sort of thing can vary from shades of white to black and go through a lot of degrees of gray.... And that's something that you can't make a firm evaluation—a firm and permanent evaluation of that is engraved in stone.

Id. at 85–86.

In this posture, the case proceeded to trial. During trial, Appellant was, among other things, able to make opening and closing statements, testify, and have his case re-opened in order to conduct an examination of a law enforcement officer who he had previously declined to cross-examine during the Government's case-in-chief. Yet, Appellant made no objections during the Government's case-in-chief, and failed to question two of the witnesses or call witnesses on his own behalf.

Ultimately, the jury deliberated for 12 minutes before finding Appellant guilty on all charges. On October 6, 2010, the district court convened a sentencing hearing, during which Appellant was fully represented by his former standby counsel.⁴ However, the court was quickly forced to continue the proceeding after it became clear that Appellant's mental condition was wholly compromised at that time.⁵ At the reconvened sentencing hearing, held on January 5, 2011, the district court sentenced Appellant to 180 months imprisonment.⁶ He now appeals.

B.

Appellant raises two principal issues on appeal. First, he argues the district court erred when it allowed him to exercise his right to self-representation at trial. He claims the court wrongly conflated the legal standards for assessing his competency to stand trial and his competency to represent himself at trial, the latter of which he alleges is more rigorous following Edwards. In this vein, Appellant also maintains the district court abused its discretion by failing, during trial, to sua sponte reconsider its findings that Appellant was competent to stand trial and waive counsel. Second, Appellant contends his trial counsel rendered ineffective assistance by incorrectly arguing that Appellant's competence to waive counsel at trial was governed by the same standard as his competence to stand trial.

II.

Because Appellant presents these arguments for the first time on appeal, we review for plain error. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Appellant must show that the district court erred, that the error was plain, and that it affected his substantial rights. Id. at 734, 113 S.Ct. 1770. With regard to the third element of that standard, Appellant must show that the alleged error actually “affected the outcome of the district court proceedings.” Id.⁷

III.

A.

We begin with the fundamental tenet that a criminal defendant has a Sixth Amendment right to self-representation. See Faretta v. California, 422 U.S. 806, 819, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Such a person may waive the right to counsel and proceed at trial pro se only if the waiver is (1) clear and unequivocal, (2) knowing, intelligent, and voluntary, and (3) timely. See United States v. Frazier–El, 204 F.3d 553, 558 (4th Cir.2000) (collecting cases). Even so, “the Faretta right to self-representation is not absolute, and ‘the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer.’ ” Id. at 559 (quoting Martinez v. Court of Appeal of Cal., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000)).

The Supreme Court first addressed the issue of competency to waive counsel in Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In that case, the defendant pleaded guilty in Nevada state court to three counts of first-degree murder. Id. at 391, 113 S.Ct. 2680. After he was found competent to stand trial, the defendant sought to discharge his attorneys and enter guilty pleas. Id. at 392, 113 S.Ct. 2680. The trial court found that the defendant had waived counsel. Id. at 393, ...