USA v. John Cockerham, Jr.

Filing

UNPUBLISHED OPINION FILED. [09-51115 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 10/13/2010 for Appellant John Cockerham Jr.; denying motion to file reply brief filed by Appellant Mr. John Cockerham, Jr. [6553059-2]; denying motion for extraordinary relief filed by Appellant Mr. John Cockerham, Jr. [6542813-2]; denying motion to relieve attorney filed by Appellant Mr. John Cockerham, Jr. [6542813-3]; denying motion to appoint counsel filed by Appellant Mr. John Cockerham, Jr. [6542813-4] [09-51115]

USA v. John Cockerham, Jr.

Doc. 0

Case: 09-51115

Document: 00511241707

Page: 1

Date Filed: 09/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51115 S u m m a r y Calendar September 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O H N COCKERHAM, JR., D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 5:07-CR-511-1

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* J o h n Cockerham, Jr., appeals his guilty plea convictions of conspiring to d e fr a u d the United States and to commit an offense against the United States, b r i b e r y , and conspiring to commit money laundering. Cockerham claims that h is right to a public trial was violated because the courtroom was closed during h is guilty plea hearing and because the district court did not announce that the c o u r tr o o m had been closed until it had finished taking his plea.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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Dockets.Justia.com

Case: 09-51115

Document: 00511241707 Page: 2 No. 09-51115

Date Filed: 09/22/2010

T h e Government does not invoke the appeal waiver provision of C o c k e r h a m 's plea agreement. Therefore, the waiver provision does not bar C o c k e r h a m 's appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2 0 0 6 ). The Government contends, however, that Cockerham waived his right to a public trial. T h e Sixth Amendment guarantees a public trial to all criminal defendants. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). A defendant may waive h is Sixth Amendment right to a public trial by failing to object to the closing of t h e courtroom. Peretz v. United States, 501 U.S. 923, 936 (1991); United States v . Hitt, 473 F.3d 146, 155 (5th Cir. 2006) ("Where a defendant, with knowledge o f the closure of the courtroom, fails to object, that defendant waives his right to a public trial."). A s the transcript of the guilty plea hearing makes clear, Cockerham's trial c o u n s e l urged that the proceedings be kept secret so as to increase his client's o p p o r t u n it ie s to provide substantial assistance to the Government and thereby o b ta in a reduction in his sentence. We have no difficulty inferring from the t r a n s c r ip t that Cockerham's trial counsel was aware of the closure of the c o u r tr o o m prior to and during Cockerham's plea hearing. Additionally, there is n o indication in the record that either Cockerham or his trial counsel objected t o the closure of the courtroom during the plea hearing itself, at any subsequent p r o c e e d in g , or by way of a written motion. Accordingly, we conclude that Cockerham waived his right to a public trial. See Hitt, 473 F.3d at 155 ("A d e fe n d a n t 's attorney's waiver of the right to a public trial is effective on the d e f e n d a n t ." ) . A fte r the parties submitted briefs, Cockerham filed two pro se motions. In the first such motion, he requested an order mandating his appointed a p p e lla te counsel to raise certain issues on direct appeal or, in the alternative, a n order dismissing his current attorney and appointing new appellate counsel.

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Case: 09-51115

Document: 00511241707 Page: 3 No. 09-51115

Date Filed: 09/22/2010

I n the second motion Cockerham moved for leave to file a pro se reply brief, or, in the alternative, for the appointment of new appellate counsel. C o c k e r h a m cannot force his appellate counsel to advance issues with w h ic h counsel does not agree, and he does not have the right to new appointed c o u n s e l who necessarily agrees with him. See Vega v. Johnson, 149 F.3d 354, 3 6 1 (5th Cir. 1998). He has no constitutional right to self-representation on a p p e a l, see Martinez v. Court of Appeal of California, 528 U.S. 152, 163 (2000), a n d he is not entitled to hybrid representation on appeal. See United States v. O g b o n n a , 184 F.3d 447, 449 & n.1 (5th Cir. 1999). Once counsel's brief is filed, a motion to proceed pro se is untimely. See United States v. Wagner, 158 F.3d 9 0 1 , 902-03 (5th Cir. 1998). Further, "[b]y accepting the assistance of counsel t h e criminal appellant waives his right to present pro se briefs on direct appeal." Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996). In view of the foregoing a u t h o r it ie s , Cockerham's pro se motions are denied. A F F I R M E D ; MOTIONS DENIED.

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