USA v. Vernier

Filing 511136764

USA v. Vernier

Doc. 511136764

Case: 08-31047

Document: 00511136764

Page: 1

Date Filed: 06/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 9, 2010 N o . 08-31047 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA,

P la in t iff - Appellee v. J O N A T H A N LEE VERNIER,

Defendant - Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:04-CR-20144

B e fo r e GARWOOD, STEWART, and CLEMENT, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Jonathan Lee Vernier appeals his conviction for a fe d e r a l carjacking in violation of 18 U.S.C. § 2119. The district court denied V e r n ie r 's request to represent himself at trial. After a review of the record, we A F F IR M .

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 08-31047

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No. 08-31047 I. A. I n April 2003, Vernier escaped from a Colorado state prison where he was s e r v in g a 12-year sentence for car theft. While hitch-hiking in Texas following h is escape, he hitched a ride with Ran Mesika, an Israeli citizen who was t r a v e l in g across the country selling jewelry from a van. After traveling with M e s ik a for about four days, Vernier struck Mesika with a tire iron, then kept h im tied up in the van until he killed him and dumped his body at an unknown lo c a tio n . Vernier continued toward Florida in the van he stole from Mesika, u s in g Mesika's stolen debit card and identification. Israeli law enforcement agents notified the FBI of the likely kidnapping o f Mesika. The FBI tracked Vernier to Key West and apprehended him after a d r a m a tic chase and resistance in May 2003. L o u i s ia n a . B. V e r n ie r was indicted for carjacking resulting in death in violation of 18 U .S .C . § 2119. He pleaded not guilty. Before trial, the Government requested t h a t Vernier be shackled during trial. The Government's motion included Mesika's body was found in

a s s e r tio n s that Vernier had escaped from prison twice, that he was able to get o u t of handcuffs, that he regularly possessed contraband and weapons in jail, t h a t he severely damaged a jail cell, that he resisted corrections officers' a tt e m p ts to search his cell, and that he inflicted injuries on himself and told c o r r e c t io n s officials that he wanted to kill himself and had tried to do so. The G o v e r n m e n t also asserted that it intercepted a telephone call in which Vernier t o ld a third party that he intended to disrupt his trial and generate sound bites fo r the news media. The district court held a hearing on the motion. Vernier waived his right t o be present at the hearing. At the hearing, the court heard testimony from a 2

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No. 08-31047 D e p u ty U.S. Marshal and an FBI agent that Vernier had taunted Mesika's fa m ily in court and had attempted to negotiate with them or to extort money fr o m them in exchange for telling them where to find Mesika's body. The FBI a g e n t also testified that the factual recitations in the Government's motion were a cc u r a te . The court concluded that, based on Vernier's "fairly constant

c o n t e n t io u s and defiant behavior" and the court's concerns about the safety of p e r s o n s in the courtroom, he would be shackled at trial but that the restraints w o u ld be hidden from the jury as much as possible.1 C. O n the first morning of trial, Vernier advised the court that he wanted to r e p r e s e n t himself at trial. The court told Vernier that it was concerned about h is history of disruptive behavior and that disruptions of the trial could result in his removal from the courtroom. Vernier responded that reports of his bad b e h a v io r were "rumors" and "a systematic plot" by jailers to discredit him. The court denied Vernier's request to proceed pro se at trial. The court c it e d "several factors" in denying the request. First, the court noted that Vernier w a s asserting his right to self-representation on the morning of trial and had n e v e r raised the issue before the court. Second, the court noted that Vernier had n o t expressed any dissatisfaction with his appointed lawyer. Third, the court n o te d that Vernier had waived his own appearance at the restraint hearing. F i n a lly , the court said its decision was "based on all the information" that was e n te r e d into the record at the restraint hearing.2

The court ordered skirting for the prosecution and defense counsel's tables at trial, and ordered that Vernier be seated at defense counsel's table before the jury entered to hide the ankle shackles from view. Vernier also addressed the court, stating that because of his limited legal knowledge he did not know he needed to file a formal motion to assert his right to self-representation. The district court replied, "Just one more reason not to let you represent yourself because of your limited legal knowledge." As Vernier attempted to continue, the district court stated that it had made its ruling "on other issues."
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No. 08-31047 V e r n ie r 's appointed lawyer objected on his behalf, arguing that Vernier's a s s e r tio n of the right to represent himself was timely and was not interposed for t h e purpose of delay because Vernier was ready to proceed with trial that day. T h e Government declined to join the objection and referred the court to the e v id e n c e presented in the motion to shackle Vernier. The Government also presented evidence regarding Vernier's attack on a p r is o n guard and attempt to escape from jail just days prior to trial. The G o v e r n m e n t 's witness testified that Vernier was armed with a shank during the e s c a p e attempt and that Vernier said he had been planning the attempt for three y e a r s . According to the witness, Vernier boasted that he was not going to go to p r is o n quietly but would "go out in a bloody confrontation" without regard to w h o m he would have to kill. The Government argued that Vernier's real

in t e n t io n in requesting to represent himself was to disrupt his trial and to try t o escape. The court said that the evidence about Vernier's recent escape

a tt e m p t added support to its decision not to allow self-representation and "that t h e r e are other things besides timeliness" supporting the decision. The court n o t e d its "discretion to run an orderly courtroom." The case proceeded to trial. The jury convicted Vernier as charged. The c o u r t allowed Vernier to represent himself at the sentencing hearing, although a p p o i n t e d counsel was present. The court denied a request for a downward d e p a r t u r e and sentenced Vernier to life in prison, with the term to run c o n s e c u t iv e ly to each of two other sentences and concurrently to a third s e n t e n c e . Vernier filed a timely pro se notice of appeal and is represented by a p p o in te d appellate counsel. II. V e r n ie r 's only contention on appeal is that he should have been allowed t o represent himself at trial. He argues that the court denied his motion on the b a s is of untimeliness and that his request was timely under Chapman v. United 4

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No. 08-31047 S ta t e s , 553 F.2d 886, 895 (5th Cir. 1977). He asserts that there were no other v a lid grounds for denying his request. The Government contends that the c o u r t 's denial of self-representation was not based on untimeliness but rather w a s justified by ample evidence indicating that Vernier's request was intended to give him the chance to disrupt his trial and to attempt another escape. This court reviews claims concerning the right of self-representation de n o v o . United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). The district c o u r t's factual findings to support its ruling are reviewed for clear error. Id. at 3 61 . An improper denial of the right of self-representation, if established,

r e q u ir e s reversal without further analysis for harmless error. United States v. M a j o r s , 328 F.3d 791, 794 (5th Cir. 2003). A competent criminal defendant has a Sixth Amendment right to r e p r e s e n t himself at trial if he knowingly chooses to do so and waives his right to counsel. Jones, 421 F.3d at 363; see also 28 U.S.C. § 1654. The right to selfr e p r e s e n ta tio n , however, is not absolute. Indiana v. Edwards, 128 S. Ct. 2379, 2 3 8 4 (2008). The right is forfeited by obstruction, disruptive conduct, or by a b u s in g the dignity of the courtroom. Id.; see also Faretta v. California, 422 U.S. 8 0 6 , 834 n.46 (1975). "Even at the trial level, therefore, the government's

in te r e s t in ensuring the integrity and efficiency of the trial at times outweighs t h e defendant's interest in acting as his own lawyer." Martinez v. Court of A p p ea l of Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000). U n d e r the general principle announced by the Supreme Court in Faretta, E d w a r d s , and Martinez, the right of self-representation is limited by the trial c o u r t 's responsibility to maintain order and safety and to prevent disruption and d e la y . See United States v. Long, 597 F.3d 720, 726 (5th Cir. 2010) (upholding d e n ia l of the right to self-representation where the defendant had been d is r u p t iv e in pretrial proceedings). We have noted in passing that a defendant's r e q u e s t to represent himself at trial may be rejected if it is intended to cause 5

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No. 08-31047 d e la y or some tactical advantage. Chapman, 553 F.2d at 895. Other circuits h o ld that a trial court may deny the right of self-representation when evidence in d ic a te s that the defendant intends to use the right to delay or disrupt the trial. S e e , e.g., United States v. Smith, 413 F.3d 1253, 1280­81 (10th Cir. 2005) (h o ld in g that the defendant's insolent behavior showed that he was playing "cat a n d mouse" with the court by requesting to represent himself); Buhl v. Cooksey, 2 3 3 F.3d 783, 797 (3d Cir. 2000) (noting that determining whether a pro se d e f e n d a n t intends only disruption and delay is the kind of determination district c o u r t s must make routinely, but holding that the court did not make a sufficient in q u ir y ); see also United States v. George, 56 F.3d 1078, 1084 (9th Cir. 1995) (h o ld i n g that the defendant's pre-trial conduct, including two escapes, showed th a t his request to represent himself was made for purposes of delay); see also U n ite d States v. Akers, 215 F.3d 1089, 1097­99 (10th Cir. 2000) (approving the d e n ia l of self-representation where evidence, including the defendant's pre-trial flig h t, supported the district court's conclusion that the motion for selfre p re se n ta tio n was intended to delay the proceedings). I n this case, if the district court had based its denial of self-representation s o le ly on the timing of Vernier's request, the court likely would have erred under C h a p m a n , where we held that a request for self-representation is timely if made b e fo r e the jury is selected. See Chapman, 553 F.2d at 887. The court arguably a ls o would have erred had it based its ruling only on Vernier's limited legal k n o w le d g e . See Faretta, 422 U.S. at 836 (indicating that a defendant's technical k n o w le d g e is not relevant to his right to control his defense). But neither reason was the sole basis for the district court's refusal to a llo w Vernier to represent himself. Instead, the district court based its ruling p r im a r ily on the same evidence that convinced the court to shackle Vernier for t r ia l. That uncontested evidence indicated that Vernier posed a risk of violence a n d escape, that he was defiant and troublesome, and that he boasted that he 6

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No. 08-31047 w a n te d to go out in a bloody confrontation, to disrupt his trial, and to make n ew s. Moreover, the Government presented additional testimony on the day of t r ia l that Vernier had attempted a violent escape from jail in the 48 hours p r e c e d in g the trial. The Government points out that Vernier's escape attempts o r other disruptions could have delayed the trial and hindered the prosecution, w h ic h relied on the testimony of witnesses from across the country and overseas. T h e court considered this evidence as an additional reason to deny Vernier's r e q u e s t to represent himself. Thus, there was no clear error in the district c o u r t 's findings.

I I I. B a s e d on our review of the evidence and the district court's reasoning, we c o n c lu d e that the district court did not err when it found that Vernier's escape a tt e m p ts and risk of violence posed a threat to the courtroom protocol of the tria l. Therefore, Vernier was not unconstitutionally denied his right to selfr e p r e s e n ta tio n . Accordingly, his conviction is AFFIRMED.

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