United States v. Virgil Talley ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 15, 2008
No. 07-15452
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-00448-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VIRGIL TALLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 15, 2008)
Before ANDERSON, HULL, and MARCUS, Circuit Judges.
PER CURIAM:
Virgil Talley appeals his convictions for conspiracy to impede or injure an
officer of the United States, in violation of 18 U.S.C. § 372, and two counts of
endeavoring to influence, intimidate, or impede an officer of the United States, in
violation of 18 U.S.C. § 1503. On appeal, Talley argues that the district court (1)
erred in finding that he knowingly and intelligently waived his right to counsel, and
(2) abused its discretion by requiring him to wear shackles and to be partially
handcuffed at trial. After thorough review, we affirm.
I.
Ordinarily, a district court’s conclusion that a defendant validly waived his
Sixth Amendment right to counsel is a mixed question of law and fact that we review
de novo. United States v. Kimball, 291 F.3d 726, 730 (11th Cir. 2002). However,
because Talley raises this issue for the first time on appeal, our review is only for
plain error. See Fed. R. Crim. P. 52(b). Under plain error review, a district court’s
decision is reversible only where (1) an error occurred, (2) the error was plain, and
(3) the error affected substantial rights. See, e.g. United States v. Olano, 507 U.S.
725, 732 (1993). If these conditions are met, we may exercise our discretion to
address the trial court’s error, but only “if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535
U.S. 625, 631 (2002) (brackets and internal quotation marks omitted).
2
We review for an abuse of discretion the district court’s decision to require a
criminal defendant to wear shackles at trial, subjecting the ruling to “close judicial
scrutiny.” United States v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002) (quotation
marks omitted). Even where a district court abuses its discretion, however, we will
not vacate a conviction if the error was harmless. See United States v. Baker, 432
F.3d 1189, 1246 (11th Cir. 2005).
II.
In 1998, Talley was convicted in the United States District Court for the
Northern District of Florida on controlled substance and firearm charges, and was
sentenced to 295 months’ imprisonment. While incarcerated, Talley and a co-
conspirator filed fraudulent creditors’ liens, default notices, and a variety of other
fraudulent commercial instruments in an attempt to damage the personal finances of
the United States District Judge who presided over his trial, the Assistant United
States Attorney who prosecuted him, and the United States Attorney for the Northern
District of Florida.
In October 2006, Talley was charged with thirty-eight counts of mail fraud and
one count of obstructing justice. He was subsequently arraigned in the Northern
District of Florida before a magistrate judge who informed Talley of his right to
3
counsel, and asked whether Talley wished to have counsel appointed for him. Talley
replied that he wished to represent himself. The following colloquy ensued:
THE COURT: Mr. Talley, do you want to be represented by an
attorney?
DEFENDANT TALLEY: No.
THE COURT: You want to represent yourself in this case?
DEFENDANT TALLEY: As a, like I said, as me being the third-party
intervenor and by special visitation and attorney in fact for Virgil Talley,
Trust, I have wanted to go ahead and speak before you to let you know
that during this arraignment I will go ahead, because I don’t plan to
dispute what’s going on, as far as the facts alleged in the indictment.
THE COURT: Well, Mr. Talley, I know that you have a lot of titles that
you’ve assumed, and those titles may or may not be valid. I don’t know.
But today, today, it is the United States of America against Virgil Talley,
and I want to know if Virgil Talley wants to be represented by a lawyer.
Yes or no.
DEFENDANT TALLEY: No.
THE COURT: All right. Then I need to ask you some questions,
and I want you to answer them straightforwardly. Don’t hide behind or
give me anything about your attorney in fact or any of that stuff. It’s the
United States against Virgil Talley.
As you know you have the right to an attorney, and I can appoint an
attorney to represent you, if you don’t have the money to hire one.
As you also know you have the constitutional right to represent yourself.
And if you exercise that right to represent yourself, then you’ll waive
your right to be represented by an attorney.
4
Do you understand that?
DEFENDANT TALLEY: Yes, sir.
THE COURT: Have you ever studied the law?
DEFENDANT TALLEY: I’ve studied commercial law.
THE COURT: Have you ever studied criminal law?
DEFENDANT TALLEY: Criminal and civil law, yes, sir.
THE COURT: All right. Have you ever studied criminal law outside the
prison system?
DEFENDANT TALLEY: As the attorney in fact for Virgil Talley, no.
THE COURT: Have you ever represented yourself in a criminal action?
DEFENDANT TALLEY: As a pro se litigant, yes, in several --
THE COURT: Civil cases?
DEFENDANT TALLEY: In civil cases, yes, sir.
THE COURT: But not in criminal cases?
DEFENDANT TALLEY: No.
THE COURT: All right. You realize that -- and you tell me you’re not
going to dispute the indictment, and that may be true and may not, I
don’t know -- but you realize that, if you’re convicted, either based on
a trial or on your own plea, that you can be sentenced to additional time
in prison based on these charges; that is, in addition to the time you’re
serving currently. Do you understand that?
DEFENDANT TALLEY: Yes.
5
THE COURT: Ms. Adams, you’re here representing the United States
in this case.
MS. ADAMS: Yes, Your Honor, I am.
THE COURT: How many counts do we have against --
MS. ADAMS: There are --
THE COURT: -- this defendant?
MS. ADAMS: -- 39 counts -- 38 counts of mail fraud and one count of
obstruction of justice.
THE COURT: And what are the maximum penalties for those counts?
MS. ADAMS: Your Honor, it will be, I believe, five years as to each
mail fraud count, and I think five years on the obstruction of justice.
THE COURT: So it’s five years times 39 counts?
MS. ADAMS: Yes.
THE COURT: Mr. Talley, I’ll do the arithmetic for you, if you want me
to; but, if you are convicted on these charges, you can be sentenced
consecutively on each of those counts, which means that you can be
sentenced, in addition to the prison term you’re currently serving, to five
years times 38.
Do you understand that? That’s a big number; and, if you insist, I’ll try
to do the math and tell you what that number is. But do you understand
that that’s the sentence you’re looking at?
DEFENDANT TALLEY: Yes, I understand.
....
6
THE COURT: You understand what you’re charged with. Now, in the
federal system we have the federal rules of evidence, which will control
in this case; and we have federal rules of criminal procedure, which
control in this case. Are you at all familiar with the federal rules of
evidence?
....
DEFENDANT TALLEY: I would have to reference them, but I do know
how to go to them. As far as the citations, I can find them in the statutes
and reference them.
THE COURT: Okay. You understand that, as far as any evidentiary
matters in this case, those rules apply?
DEFENDANT TALLEY: Yes.
THE COURT: Have you any familiarity with the federal rules of
criminal procedure?
DEFENDANT TALLEY: Yes.
THE COURT: You understand that as regards to any procedure that is
carried out in this case that those rules apply?
DEFENDANT TALLEY: Yes.
THE COURT: You are currently incarcerated, I believe, in a federal
prison somewhere. But unless I’m wrong, until this case is tried, you’ll
be kept here in one of the local jails.
DEFENDANT TALLEY: Yeah.
THE COURT: You understand that the local jails don’t have law
libraries, and you will not have access to any research materials before
your trial.
7
DEFENDANT TALLEY: Yes, I’m fully aware of that. They already told
me that at Santa Rosa County Jail.
THE COURT: All right. I guess the bottom line here, Mr. Talley, is you
understand that, if you represent yourself, it’s you against the United
States. You’ve got no lawyer, you’ve got no one standing beside me.
Whatever name you may attach to yourself or whatever title you may
attach to yourself, it’s you against the United States. Do you understand
that?
DEFENDANT TALLEY: Yes, I understand the defendant will be
against the United States. As the plaintiff, the United States will be
against him.
THE COURT: Well, we haven’t gotten to the plaintiff part yet.
There’s an old saying in the law, Mr. Talley, that a lawyer who
represents himself has a fool for a client, because there have been
occasions in cases when lawyers represented themselves. The corollary
to that old saying is that a defendant who represents himself has a fool
for a lawyer. I’m not saying you’re a fool. I’m saying that it would be
very unwise for you to represent yourself in this case. My opinion is
that, in spite of your protestations about your legal titles, your legal
entitlements, who you are or how you approach this thing, if you
represent yourself, you are making a very grave error. That is my
opinion. Do you understand that? Yes?
DEFENDANT TALLEY: Yes, that’s your opinion.
THE COURT: Now, I want to encourage you in the strongest possible
terms to agree to let me appoint counsel for you, since presumably
you’re in prison and don’t have the money to hire one. Do you want me
to do that or not?
DEFENDANT TALLEY: No.
THE COURT: Do you understand that by refusing my offer to appoint
counsel for you you are waiving your right to an attorney in this case?
8
DEFENDANT TALLEY: Yes, that’s fully understood.
THE COURT: And I take it, based on our conversation, that your waiver
of an attorney in this case is entirely voluntary on your part and it has
not been forced on you by anyone.
DEFENDANT TALLEY: No, it hasn’t been forced.
THE COURT: Voluntary?
DEFENDANT TALLEY: It hasn’t been forced. I completely
understand what you’re saying.
THE COURT: Okay. All right. Well, you have the right to represent
yourself. That right will be afforded to you; and, from here on out,
you’re on your own.
In concluding the hearing, the magistrate judge added that Talley could change
his mind about representing himself at any point before the start of his trial. He also
appointed a public defender to serve as Talley’s stand-by counsel. Finally, when
Talley failed to provide a clear answer as to how he wished to plead, the magistrate
judge entered a not-guilty plea on Talley’s behalf.
Talley’s case was later transferred to the Middle District of Florida, but was
quickly returned to the Northern District, where it was reassigned to another district
judge, and where Talley was charged in a superseding indictment.1 During the
1
In the superseding indictment, the mail fraud and obstruction of justice charges were
dropped and replaced by the charges on which Talley was ultimately tried and convicted:
conspiracy to impede or injure an officer of the United States, in violation of 18 U.S.C. § 372,
9
arraignment on the superseding indictment, the district judge revisited Talley’s
decision to represent himself:2
THE COURT: Well, I know that previously you have elected to proceed
without an attorney, and I just want to revisit that decision. You seem
like an intelligent man. Why are you doing that?
THE DEFENDANT: Why am I doing that?
THE COURT: Yes.
THE DEFENDANT: Because it’s a private matter. This matter is a
private matter. It’s private nonnegotiable matter between the parties
....
THE COURT: Well, I’m not sure if I follow that. My question is why
do you feel you don’t need an attorney? You don’t have any legal
training, do you?
THE DEFENDANT: Well, the matter at hand, I have accepted this case
for value on -- on -- on 11-9-06, and I have returned it for closure. I
didn’t intend to dispute the facts in the charging instrument. However,
that day [the] Magistrate Judge . . . elected to enter a -- a plea not of my
own consent. And I spoke with him about that that day. However, I
wasn’t able to continue to finish speaking. And I elect to do the same at
this initial proceeding . . . . I accepted the case for value and I also
placed a special appearance bond for and on the record.
and endeavoring to influence, intimidate, or impede an officer of the United States, in violation
of 18 U.S.C. § 1503.
2
In this colloquy, as in his subsequent appearances before the district court, Talley’s
replies were often long, rambling, and obscure. For the sake of brevity, rather than providing a
verbatim account of each of Talley’s statements, we have reproduced only those parts of the
transcript necessary to capture the basic gist and tenor of his responses.
10
THE COURT: Well, let me just interrupt you. It’s not a private matter.
It’s a criminal charge, and you are facing criminal penalties because of
this, which may include a considerable amount of additional prison time
for you. Do you understand that?
THE DEFENDANT: I under --
THE COURT: It’s serious. It’s a serious matter. It’s not just a -- you
know, a whim that you can play out here.
THE DEFENDANT: I understand all that. But the point -- the case --
the case in being is, it’s a criminal matter and I have accepted -- and I
have accepted the matter for value, and I am, pursuant to Rule 8 --
THE COURT: Well, you don’t accept it for value. This is a charge that
the government is gonna prosecute you for. And you have the right to
have an attorney in this matter and --
THE DEFENDANT: Well, according --
THE COURT: -- I strongly urge you to have an attorney. One will be
appointed to represent you.
THE DEFENDANT: According to the Sixth Amendment to the
Constitution, I have the right to have effective assistance of counsel, if
I so choose. In this matter I do not choose. I’m not gonna participate in
this matter as far as allowing any jurisdiction, because it’s a matter that’s
without the form and jurisdiction of this court . . . .
....
THE COURT: But my question is, are you sure you want to proceed
without the benefit of the assistance of an attorney or a lawyer to
represent you?
THE DEFENDANT: I have a secured interest in the person named in the
indictment.
11
THE COURT: That’s -- that’s a meaningless response, Mr. Talley.
THE DEFENDANT: I wouldn’t --
THE COURT: Do you understand the consequences to you of not
having an attorney?
THE DEFENDANT: No, I don’t. I wish -- I don’t wish to have -- have
that. I waive it.
When the court later turned to the superseding indictment and asked whether
Talley understood the charges, Talley replied that he had read the document and that
he understood “the nature of the charges as it applies to the person that’s being
charged in the charging instrument as the superseding indictment.” He waived his
right to have the charges read to him, and when he once again refused to enter a plea,
the district court entered a plea of not-guilty on his behalf. At the conclusion of the
hearing, the district court also ordered that Talley undergo a competency evaluation.
Talley was subsequently examined by a forensic psychologist. The report
determined that Talley understood the nature and consequences of the proceedings
against him; it further concluded that Talley was mentally competent at the time of
the alleged offenses, and that Talley was mentally competent to stand trial.
Moreover, the psychologist opined that Talley’s odd behavior was deliberate and
calculated. Indeed, rather than betokening mental illness, the psychologist concluded
that Talley’s legal rambling was in fact part of a larger defense strategy being used
12
with increasing frequency by criminal defendants in federal court. As the report
explains:
[T]he tenets of this defense strategy are based on the following: an
individual can copyright and/or claim his own name and/or person as
property, that all crime is commercial crime, and that the Courts do not
have legitimate jurisdiction . . . to name a few . . . . In conclusion, the
defendant’s defense strategy is not based on confused or delusional
thinking, or any symptoms of an active phase of mental illness. Instead,
these ideas appear to be increasing in popularity among criminal
defendants. The defendant further asserted that his defense strategy is
a recourse in obtaining relief from his current federal sentence.
The district court subsequently issued an order adopting and incorporating the
psychologist’s report and finding that Talley was “competent to proceed in the case.”
The order specifically made reference to the psychologist’s opinion that Talley’s
“bizarre and incoherent arguments . . . are increasingly common among prisoners and
‘demonstrate organized, deliberate, and calculated behaviors.’” The order further
reminded Talley that he would be required to follow applicable evidentiary and
procedural rules while representing himself at trial. Talley does not challenge the
district court’s ruling that he was mentally competent.
On June 27, 2007, the government filed a second superseding indictment.
Because it contained no substantive changes from the previous charging document,
the district court did not immediately re-arraign Talley. Shortly before the start of his
trial, however, the district court conducted an abbreviated arraignment at the
13
government’s request. The district court again asked whether Talley wished to
represent himself and strongly admonished him against doing so. Talley refused to
allow himself to be represented and indeed refused to participate in the proceedings
at all.
THE COURT: All right. And, let’s see. Mr. Talley, are you ready?
THE DEFENDANT: Uh -- I’m not here to participate, but if that
constitutes being ready.
THE COURT: Well, you have to be present for the trial, so whether you
participate is somewhat up to you. But I do need to tell you that my job
is to ensure that you get a fair trial to the extent that I can possibly do so.
And, you know, it’s your life on the line. It’s years of additional prison
time that you are facing. So any -- any lack of cooperation by you in the
trial may prove to be detrimental to your own case. I think you need to
know that. Do you understand what I’m saying?
THE DEFENDANT: No, I don’t understand.
THE COURT: Well, failure to cooperate in your trial may be perceived
by the jury, which is the trier of fact, as indicating, first of all, that you
are guilty as charged, but also may create a feeling of animosity from the
jury toward you. So I’m not sure that failure to cooperate in the trial is
going to be perceived by the jury as helpful to your case. Do you see
what I’m saying now?
THE DEFENDANT: For and on the record, I am appearing separately
under the circumstances as third-party intervenor . . . .
THE COURT: Mr. Keith, you have been appointed as stand-by . . .
counsel, and I do request that you sit at the table and be close to Mr.
Talley to be available for consultation at anytime [sic] that he wants you
14
to do it. Mr. Talley, are you gonna be representing yourself in this trial
or are you gonna assist -- have the assistance of Mr. Keith?
THE DEFENDANT: I’m not presenting my person nor myself at this
trial, because I will not participate. And again, I am not --
THE COURT: That’s not my question. Listen to my question. The
question --
THE DEFENDANT: No.
THE COURT: -- is are you gonna represent yourself or are you gonna
have Mr. Keith assist you?
THE DEFENDANT: No.
THE COURT: You are not going to represent yourself?
THE DEFENDANT: Nor will he assist me.
THE COURT: You don’t want -- you don’t want any legal counsel at
all?
THE DEFENDANT: No.
THE COURT: Are you waiving your right to any legal counsel?
THE DEFENDANT: I can’t waive a right to trial?
THE COURT: I’m sorry?
THE DEFENDANT: I cannot waive a right to trial when the matter is
nonexistent.
THE COURT: Well, I’m simply advising you that if you are not going
to utilize Mr. Keith, and you are not gonna do anything, you are both de
15
facto and essentially waiving any right to counsel which is guaranteed
to you under the Sixth Amendment of the Constitution.
THE DEFENDANT: I have -- for and on the record, I have the right to
assistance of counsel pursuant to the Sixth Amendment to the
Constitution, but I -- I choose not to partake in any justiciable
controversy that’s dealing with unproved being. And Mr. Keith shall
not represent my person, because I have a secured interest in that
property.
THE COURT: You don’t have a secured interest -- there is no property
issue in this trial. The issue really is your own liberty, whether you are
gonna be convicted of these charges and sentenced to additional prison
time. And I can -- I can assure you with a great deal of confidence that
failure to participate in this trial is going to be detrimental to your own
interest.
....
THE COURT: Do you understand the charges against you, the same
charges as in the previous superseding indictment?
THE DEFENDANT: No, I don’t.
THE COURT: All right. Well, they have been previously explained to
you and are exactly the same. And before I enter a plea of not guilty for
you, how do you plead?
THE DEFENDANT: I object to you entering a plea on my behalf.
Finally, just before the start of the trial, the court made one last attempt to
caution Talley about proceeding pro se:
THE COURT: -- again, Mr. Talley -- Mr. Talley, everything you said is
really a non sequitur. It has nothing to do with the criminal charges and
the serious penalties that you are facing. And again, I --
16
THE DEFENDANT: Where is the complaining party?
THE COURT: -- need to make sure that you understand that it’s in your
own interest that --
THE DEFENDANT: A legal description can’t charge --
THE COURT: Wait a minute. Let me finish, Mr. Talley. It’s in your own
interest to participate actively or have your stand-by attorney represent
you because trials are very complex. They are very involved. And
everything that you have said is indicative of the total misunderstanding
of the nature of the proceedings and the way the legal system operates.
We have already had you examined. There is no question about your
competency to stand trial. You are operating under a gross
misconception of -- of how the trial is going to operate. So, again, my
advice to you is to call upon your attorney to represent you. If not, if
you insist on representing yourself, my recommendation to you is that
you actively participate.
Talley again refused to let counsel represent him.
It was also during this final hearing that Talley’s stand-by counsel noted for the
record that Talley was in shackles, and that one of Talley’s hands had been
handcuffed. Talley’s stand-by counsel stated that the court had given no reason for
ordering the restraints, and he expressed concern about their potential influence on
the jury. The district court stated that, given the substantial sentence that Talley was
serving, he should remain in shackles.
After these events, the trial began. Talley remained silent throughout the
proceedings. He made no opening or closing statements, put on no evidence, and
17
refused to respond to questions from the court. The jury found Talley guilty on all
counts, and he was sentenced to fifty-seven months’ imprisonment, to be served
consecutively to the 295-month sentence he was already serving for his 1998
conviction on controlled substance and firearm charges.
III.
On appeal, Talley first contends that the district court erred in finding that he
knowingly waived his right to trial counsel. Specifically, he claims that he was never
adequately informed of the risks associated with representing himself. We disagree.
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that
before a defendant waives his right to counsel, he “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 eyes open.” Id. at 835(internal quotation marks omitted). Whether this requirement has been met “depends
upon the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.” United States v. Garey, No.
03-0083, --- F.3d ----, 2008 WL 3850284, at *9 (11th Cir. Aug. 20, 2008) (en banc)
(internal quotation marks omitted). The “ultimate test for whether there has been a
valid waiver of the right to counsel is not the trial court’s express advice, but rather
the defendant’s understanding.” United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.
18
1995) (internal quotation marks omitted). We have identified several factors that are
useful in determining whether a defendant has knowingly chosen to represent
himself:
1) the defendant’s age, health, and education; 2) the defendant’s contact
with lawyers prior to trial; 3) the defendant’s knowledge of the nature
of the charges and possible defenses and penalties; 4) the defendant’s
understanding of the rules of evidence, procedure and courtroom
decorum; 5) the defendant’s experience in criminal trials; 6) whether
standby counsel was appointed and, if so, the extent to which standby
counsel aided in the trial; 7) any mistreatment or coercion of the
defendant; and 8) whether the defendant was attempting to manipulate
the trial.
Kimball, 291 F.3d at 730-31.
Applying these factors to the present case, we conclude that Talley’s decision
to represent himself was indeed knowing. First, the record discloses no concern
relating to Talley’s age, health, or education. At the time in question, he was thirty-
eight years old, had completed two years of college, and could read and write.
Further, the record indicates that Talley had sufficient knowledge of the charges
against him. The magistrate judge informed Talley of the offenses charged in the
original indictment and told Talley that he faced a potential sentence of five years for
each of the indictment’s thirty-nine counts. Talley replied that he understood.
Likewise, when Talley was arraigned on the superseding indictments, the district
court informed him of the crimes he was charged with and the severity of the
19
penalties attached to them.3 Indeed, the district court told Talley that it was his “life
on the line.”
In addition, Talley possessed an adequate familiarity with the relevant
procedural and evidentiary rules. Specifically, Talley stated that he knew the Federal
Rules of Evidence and the Federal Rules of Criminal Procedure would apply at his
trial. As we explained in Kimball, the purpose of the Faretta inquiry is “not to
determine the extent of a defendant’s legal knowledge or to determine how good of
a trial advocate a defendant will be,” but to ensure only that the defendant is aware
that the rules exist and that he will be bound by them. Kimball, 291 F.3d at 731.
Talley also had previously been a defendant in a federal criminal trial, and he
had represented himself in civil cases. Moreover, stand-by counsel was appointed to
assist him. Additionally, Talley concedes that his decision to represent himself was
voluntary and he raises no challenge to the district court’s finding that he was
mentally competent. Finally, the examining psychologist opined that Talley’s
3
It does not appear from the record that the district court discussed with Talley the
specific sentences possible under the superseding indictments. While informing defendants of
the potential penalties they face is optimal, failure to do so does not make a waiver invalid. See,
e.g., Fitzpatrick v. Wainwright, 800 F.2d 1057, 1066 n.6 (11th Cir. 1986) (waiver was valid
despite the fact that, while defendant understood the serious nature of the charges against him,
the record did not show that he knew the possible penalties he might receive if convicted); see
also United States v. Kimball, 291 F.3d 726, 732 (11th Cir. 2002) (waiver valid even though
district court gave defendant an inaccurate estimate of probable sentence).
20
seemingly nonsensical use of legal jargon was a tactic designed to manipulate the
proceedings. Such posturing, we have observed, indicates “a greater understanding
of the proceedings and an understanding of the risks and complexities of a criminal
trial.” Fitzpatrick v. Wainwright, 800 F.2d 1057, 1067 (11th Cir. 1986).
Talley nevertheless complains that he was not adequately warned about the
risks of self-representation because the district court’s inquiries into his decision were
less thorough than the magistrate judge’s. This, Talley claims, runs afoul of our
statement in Strozier v. Newsome, 926 F.2d 1100 (11th Cir. 1991), that “the closer
[a defendant’s] waiver hearing is to trial, the more rigorous, searching, and formal the
questioning of the trial judge should be.” Id. at 1105. But Talley’s argument ignores
the fact that, as noted above, the ultimate criterion for determining a waiver’s validity
is not the trial court’s advice but the defendant’s understanding. Cash, 47 F.3d at
1088. As we have recounted, our review of the record satisfies us that Talley
adequately understood the risks of representing himself: the magistrate judge’s initial
colloquy ensured that Talley was adequately apprised of the dangers when he was
first indicted; and the district court’s subsequent inquiries and warnings, when taken
in concert with the magistrate judge’s initial colloquy, were sufficient to establish that
Talley continued fully to understand the risks of self-representation after the filing of
the superseding indictments.
21
Talley’s argument also ignores the fact that his own uncooperativeness
hampered the judges’ attempts to discuss the risks of self-representation with him.
As we recently observed in Garey, “an unwilling defendant can foil a district court’s
best efforts to engage in dialogue, thereby preventing the court from eliciting clear
information regarding the defendant’s understanding of the dangers of proceeding pro
se.” Garey, --- F.3d ----, 2008 WL 3850284, at *10. We further explained:
[W]hen confronted with a defendant who has voluntarily waived counsel
. . . and who refuses to provide clear answers to questions regarding his
Sixth Amendment rights, it is enough for the court to inform the
defendant unambiguously of the penalties he faces if convicted and to
provide him with a general sense of the challenges he is likely to
confront as a pro se litigant.
Id.Like the defendant in Garey, Talley’s uncooperativeness made it difficult for
the court to explore with him as fully as possible the risks and dangers of his decision.
Indeed, Talley’s conduct appears to have been calculated to have just such an effect.
Under the circumstances, the steps taken by the magistrate judge and the district
judge were appropriate: they informed Talley of the offenses with which he had been
charged; they explained the seriousness of the penalties he faced if convicted; they
conveyed to him a sense of the difficulties he would encounter if he were to proceed
pro se; and they assigned stand-by counsel to assist him.
22
In short, reviewing the record in this case, we conclude that the district court
did not plainly err in finding that Talley knowingly waived his right to trial counsel.
IV.
Next, Talley claims that his conviction must be overturned because the district
court required him to appear before the jury in shackles and handcuffs. While we
agree that the district court erred on this point, we decline to overturn Talley’s
conviction because we conclude that the error ultimately was harmless.
We have held that physical restraints “should be used as rarely as possible,”
given their potential to affect the jury’s view of the defendant and to erode the
defendant’s presumed innocence. Durham, 287 F.3d at 1304. We have also held,
however, that there are circumstances under which shackles are appropriate to ensure
a safe and orderly trial. Id. Before ordering that a defendant be shackled during a
trial, the district court must make a case-specific and individualized assessment that
takes account of: (1) the defendant’s criminal history and the nature of the pending
charges, with special attention to whether either involved violent acts; (2) whether the
defendant has disrupted criminal proceedings in the past; and (3) whether the
defendant has engaged in any threatening behavior. Baker, 432 F.3d at 1244. The
district court must state on the record its reasons for requiring the defendant to wear
restraints. Durham, 287 F.3d at 1304. In determining whether the district court
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abused its discretion, we consider (1) whether requiring the defendant to wear
shackles furthered an essential state interest and (2) whether the trial court considered
less restrictive methods of restraint. Id.Upon review of the record and consideration of the parties’ briefs, we conclude
that the district court abused its discretion in requiring Talley to wear shackles and to
remain partially handcuffed during his trial. There is no indication from the record
that the court made a case-specific and individualized decision that such measures
were appropriate. Talley was not charged with a violent crime; he had never exhibited
threatening behavior in any of his appearances before the court; and there was no
particularized finding that Talley represented an escape risk. Nor, finally, did the
district court consider less restrictive methods of addressing any risk Talley posed.
Under these circumstances, Talley’s right to due process was infringed. Deck v.
Missouri, 544 U.S. 622, 629 (2005) (unjustified shackling is a violation of due
process).
Having concluded that the district court erred in requiring Talley to be shackled,
we must ask whether the error was harmless. Violation of a constitutional right will
be found harmless if the government can show beyond a reasonable doubt that the
error complained of did not contribute to the resulting verdict. See, e.g., United States
v. Candelario, 240 F.3d 1300, 1307 (11th Cir. 2001). Here, Talley failed to present
24
any defense whatsoever to the government’s case. Indeed, although he refused to
enter a plea, he repeatedly stated that he did not wish to contest the allegations in the
indictment. It is simply implausible to think that the trial’s outcome might have been
different if Talley had not been shackled. See, e.g., Boswell v. State of Alabama, 537
F.2d 100, 104 (5th Cir. 1976) (defendant’s appearance before venire in shackles and
prison garb was harmless error beyond a reasonable doubt).4 Furthermore, although
Talley was given the option of wearing civilian clothes during the trial, he elected to
wear his prison uniform. In this case, the wearing of restraints presented no greater
risk of juror prejudice to Talley than the wearing of prison garb. Cf. United States ex
rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir. 1973) (defendant suffered no
prejudice by being tried in prison garb since jury was already aware that he was
incarcerated and “[n]o prejudice can result from seeing that which is already known”).5
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit that were rendered prior to
October 1, 1981.
5
At the conclusion of his opening brief, Talley half-heartedly asserts that requiring him to
wear shackles constituted a structural error affecting his trial as a whole, and that the district
court’s decision therefore should not be subject to traditional harmless error analysis. The
Supreme Court has repeatedly emphasized that structural errors are very rare. Neder v. United
States, 527 U.S. 1, 8 (1999). Talley makes no effort to explain why his case belongs in this
category, nor attempts to distinguish his case from the many others in which we have subjected
claims of wrongful shackling to harmless error analysis. See, e.g., Baker, 432 F.3d at 1246 (even
assuming district court abused its discretion in shackling defendants, error would be harmless
beyond a reasonable doubt); Durham, 287 F.3d at 1308 (applying harmless error analysis to
district court’s requirement that defendant wear stun belt).
25
We reiterate that defendants may be shackled only when necessary, and only
after the district court has made a case-specific and individualized assessment of the
nature of the danger posed by the defendant. In this case, however, we hold that while
the district court failed to meet these requirements, its error was harmless beyond a
reasonable doubt. Accordingly, we affirm Talley’s conviction.
AFFIRMED.
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