U.S. v. Taylor

• Decision Date: 03 June 1991
• Docket Number: No. 89-2634,89-2634
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrance Ray TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 307

933 F.2d 307

UNITED STATES of America, Plaintiff-Appellee, v. Terrance Ray TAYLOR, Defendant-Appellant.

No. 89-2634.

United States Court of Appeals Fifth Circuit.

June 3, 1991.

Linda M. Gassaway, Waco, Tex. (Court-appointed), for defendant-appellant.

James L. Turner, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before BROWN, JOHNSON, and BARKSDALE, Circuit Judges.

JOHNSON, Circuit Judge:

Terrance Ray Taylor appeals from his conviction under 18 U.S.C. Sec. 751(a) for unauthorized departure from a halfway house. He challenges 1) the sufficiency of the evidence against him, 2) the district court's refusal to appoint counsel to represent him at sentencing, and 3) the calculation of his sentence under the federal sentencing guidelines. After a careful review of the record and the parties' briefs, this Court will uphold Taylor's conviction, but will remand the case for resentencing.

I. FACTS AND PROCEDURAL HISTORY

In 1986 Terrance Ray Taylor was convicted of altering a money order and sentenced to five years in prison. After serving nearly two years in prison, in September 1988 Taylor was transferred from a federal correctional facility to New Directions, a halfway house in Houston, Texas. The Bureau of Prisons had calculated a mandatory release date for Taylor of November 17, 1988. Twenty days before that date, on October 28, 1988, Taylor left the halfway house and did not return. Shortly thereafter he was arrested, without incident, at the auto repair shop where he had been working since being transferred to the halfway house.

Taylor was indicted, under 18 U.S.C. Sec. 751(a), ¹ for willfully escaping from federal custody. The district court initially assigned the federal public defender to represent Taylor, but Taylor waived his right to counsel, asking to represent himself. The district court properly allowed Taylor to do so, but appointed an attorney from the public defender's office to act as standby counsel during the trial. The jury found Taylor guilty of escape. After he was convicted, Taylor withdrew his request to represent himself, asking the district court to appoint counsel to represent him at sentencing. The district court ruled that Taylor's initial waiver of his right to counsel was effective and still binding, and denied Taylor's request. The district court did allow the attorney from the federal public defender's office to continue to serve as standby counsel. The district court sentenced Taylor to serve thirty-three months in prison. In response to a motion by Taylor, the district court later reduced Taylor's sentence to twenty-one months. Nonetheless, Taylor appeals, arguing 1) that the evidence was not sufficient to support his conviction, 2) that it was error to deny him counsel at sentencing, and 3) that he was not properly sentenced under the federal sentencing guidelines.

II. DISCUSSION

A. The Evidence Supporting Taylor's Conviction for Escape

A conviction for escape under Sec. 751(a) requires proof of three elements. The Government must show that the defendant made 1) an unauthorized departure or escape, 2) from custody of an institution where the prisoner is confined by direction of the Attorney General, 3) where the custody or confinement is by virtue either of arrest for a felony or conviction of any offense. United States v. Harper, 901 F.2d 471, 473 (5th Cir.1990); United States v. Spletzer, 535 F.2d 950, 953 (5th Cir.1976). Section 751(a) does not require that a defendant have a specific intent to escape; all the prosecution must show is that the defendant knew that his actions would result in his absence from confinement without permission. United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). ² In Spletzer, however, this Court held that because both the indictment and the jury instructions in that case treated a specific intent to escape as an element of the crime, under the doctrine of the law of the case specific intent became an element of the crime for Spletzer. 535 F.2d at 954. The same rule obtains here. Taylor was indicted for willfully escaping federal custody, and the district court instructed the jury, without objection, that specific intent was an element of the crime. Thus, as in Spletzer, the Government had to prove that Taylor acted with a specific intent to avoid further confinement.

Taylor contends that the evidence was not sufficient to allow the jury to conclude that he had such an intent. To prevail on such an argument Taylor must overcome a high hurdle: this Court must affirm the jury's verdict if, considering all of the evidence before the jury in the light most favorable to the Government, the jury could rationally have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Hopkins, 916 F.2d 207, 212 (5th Cir.1990). Having reviewed all of the evidence before the jury, this Court cannot say that the jury could not rationally have concluded that Taylor knew what he was doing when he left New Directions, and that he left with an intent to avoid further confinement there.

The Government introduced into evidence a document called an "acknowledgment of custody" which Taylor had signed upon arriving at New Directions. By that document, Taylor acknowledged that he understood that

federal inmates residing at New Directions Club, Inc., are in the custody of the Attorney General of the United States. Inmates who leave the New Directions facility without permission from the Federal Program Manager, or his authorized representative, shall be deemed an escapee from the custody of the Attorney General. I also understand that federal inmates who leave their place of employment (or training) without permission from the Federal Program Manager, or his authorized representative, or who fail to return to New Directions within the time prescribed, shall be deemed an escapee from the custody of the Attorney General of the United States.

The Government also showed that Taylor left the New Directions facility without authorization on October 28, 1988, and did not return. Taken together, the jury could rationally have found that these facts established each of the elements of the crime of escape. They show that Taylor 1) made an unauthorized departure 2) from a facility where he was confined at the direction of the Attorney General, 3) which confinement was the result of his conviction for altering a money order. Further, the evidence produced by the Government--particularly Taylor's acknowledgment of custody and the fact that he did not return to New Directions--allowed the jury to infer that Taylor knew he was not free to leave, and that he left with an intent to avoid confinement at New Directions.

Although Taylor argued that his early departure was the result of an honest mistake--he contended that he thought that he was entitled to twenty additional days off for good time--the jury was not required to accept Taylor's explanation. Without question, the evidence as to Taylor's state of mind was in conflict. It is precisely this sort of conflict, however, that the jury is called upon to resolve. See United States v. Merkt, 764 F.2d 266, 272 (5th Cir.1985) (intent is a question of fact that the jury must determine under the totality of the circumstances and after evaluating all of the evidence). This Court should not and cannot invade the function of the jury. Taylor's conviction must stand.

B. Representation by Counsel

Taylor next argues that the district court erred in refusing to appoint counsel to represent him at the sentencing phase of his trial. As noted above, a federal public defender was initially appointed to represent Taylor at trial, but Taylor refused that appointment, requesting to represent himself. The trial judge allowed Taylor to waive his right to counsel and proceed pro se, but the federal public defender attended the trial as standby counsel for Taylor. The standby counsel played a significant role in the trial, frequently consulting with Taylor and assisting him in presenting a motion for acquittal. After the jury returned its verdict, Taylor attempted to withdraw his waiver of his right to counsel, requesting that he be represented by counsel at sentencing. The district court denied Taylor's request on the basis that Taylor's initial election to proceed pro se was valid and still effective, and ordered instead that the federal public defender continue to serve as standby counsel.

The district court erred when it refused to allow Taylor to retract his waiver of his right to counsel. This Court has long held that a defendant who waives the right to counsel is entitled to withdraw that waiver and reassert the right. Beto v. Martin, 396 F.2d 432 (5th Cir.1968). Other courts also have consistently recognized that a defendant may change his mind about whether he will represent himself. See, e.g., United States v. Robinson, 913 F.2d 712, 718 (9th Cir.1990); United States v. Fazzini, 871 F.2d 635, 643 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 517, 107 L.Ed.2d 518 (1990); United States v. Holmen, 586 F.2d 322, 324 (4th Cir.1978). Of course, a defendant's rights to waive counsel and to withdraw that waiver are not unqualified. A trial court need not countenance abuse of the right to counsel or the right to waive it. A defendant is not entitled to "choreograph special appearances by counsel," McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984), or repeatedly to alternate his position on counsel in order to delay his trial or otherwise obstruct the orderly administration of justice. E.g., McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.), cert. denied, 474 U.S. 852, 106 S.Ct. 152, 88 L.Ed.2d 125 (1985) (trial...