United States v. Fortenberry , 350 F. App'x 906 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2009
No. 08-20748
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TIMOTHY ALAN FORTENBERRY,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-70-ALL
Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
Timothy Alan Fortenberry was convicted by a jury of three counts of
receiving child pornography and one count of possession of child pornography
involving the sexual exploitation of minors. The district court sentenced
Fortenberry to three concurrent terms of 168 months of imprisonment and one
concurrent term of 120 months of imprisonment. The district court also
imposed a lifetime term of supervised release, which included a special condition
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20748
barring Fortenberry from using the internet without prior written permission
from his probation officer.
Fortenberry elected to represent himself in the district court, and the
district court held a hearing to determine if Fortenberry’s waiver of his right to
counsel was knowing and intelligent. Fortenberry now argues on appeal that
the hearing conducted by the district court was inadequate because the district
court permitted the Government to ask Fortenberry some of the questions that
went to the determination that his waiver was valid.
Pursuant to the Sixth and Fourteenth Amendments, a state criminal
defendant has the right to the assistance of counsel. Faretta v. California, 422
U.S. 806, 807 (1975). However, “the Constitution does not force a lawyer upon
a defendant.” Id. at 814-15 (internal quotation marks omitted). A defendant
maintains the right to represent himself in a criminal trial. Id. at 815, 821.
In United States v. Davis, 269 F.3d 514, 516-20 (5th Cir. 2001), the case
relied on by Fortenberry for the proposition that the district court erred in
allowing the prosecutor to conduct some of the questions in the Faretta hearing,
the district court conducted an exceedingly brief Faretta hearing in which it
primarily relied on warnings given by counsel, whom the defendant “no longer
trusted.” We concluded that the hearing did not satisfy Faretta. Id. at 520.
Unlike in Davis, the district court questioned Fortenberry at length about
his understanding of the district court’s role in the federal government, the jury
selection and trial process, the risk that he was too intimately involved with the
case to “see[] things from a distance,” the risk that the jury might make certain
conclusions about him based on his decision to represent himself, and the near
impossibility of presenting himself as a witness. The district court admonished
Fortenberry that his decision to proceed pro se was a “foolish choice.”
The district court then allowed the Government to question Fortenberry.
The Government asked Fortenberry whether he had represented himself in any
other trial; understood the charges against him; understood the Sentencing
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No. 08-20748
Guidelines and the penalties that could be imposed if he was found guilty; was
familiar with the Federal Rules of Evidence and the Federal Rules of Criminal
Procedure; and understood the details of a plea bargain he had previously
rejected. Further, unlike the defendant in Davis who presumably trusted the
neutrality of the bench, the record reflects that the district court and anyone
licensed to practice therein were all mistrusted by Fortenberry. The district
court’s permitting the Government to question Fortenberry during his lengthy
Faretta hearing did not render Fortenberry’s waiver of counsel less than
knowing and intelligent.
Fortenberry also challenges the adequacy of the warnings he received
regarding the waiver of counsel at his sentencing hearing and the adequacy of
his apprehension of “possible defenses to the charges and circumstances in
mitigation thereof.” Von Moltke v. Gillies, 332 U.S. 708, 724 (1948). The record
reflects that Fortenberry was adequately informed about the range of
imprisonment he faced, about the plea offer he rejected, and about the
Sentencing Guidelines under which he was sentenced. Fortenberry made a
double jeopardy argument similar to the one in United States v. Davenport, 519
F.3d 940, 943-48 (9th Cir. 2008), in which the Ninth Circuit held that entry of
judgment based on a guilty plea to one count of receiving child pornography, in
violation of 18 U.S.C. § 2252A(a)(2), and one count of possessing child
pornography, in violation of § 2252A(a)(5)(B), violated double jeopardy because
possession offense was a lesser included offense of receipt offense. However, the
Government argued that the possession and receipt counts against Fortenberry
occurred on different days and therefore did not violate double jeopardy
principles.
The record does not reflect that Fortenberry had an inadequate
understanding of lesser included offenses and the possible defenses available to
him. Based “on the circumstances of th[is] individual case, the district court”
properly “exercise[d] its discretion in determining the precise nature of the
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No. 08-20748
warning” given to Fortenberry to determine that his waiver of the right to
counsel was knowing and intelligent. Davis, 269 F.3d at 519.
Fortenberry next argues that he was unduly prejudiced by the prosecutor’s
closing remarks. Fortenberry argues that the prosecutor “ask[ed] the jury to
solve the serious social problem of child rape by convicting” him. Fortenberry
also argues that the prosecutor improperly gave his opinion when he told the
jury that a guilty verdict would be “a very proper verdict.”
Fortenberry admits that he did not object to the prosecutor’s statements
at trial and that review should therefore be for plain error. See United States v.
Thompson, 482 F.3d 781, 785 (5th Cir. 2007). Plain-error review involves the
following four prongs: First, there must be an error or defect that has not been
affirmatively waived by the defendant. Second, the error must be clear or
obvious, i.e., not subject to reasonable dispute. Third, the error must have
affected the defendant’s substantial rights. Fourth, if the above three prongs are
satisfied, we have the discretion to correct the error only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.” Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009) (internal quotation marks and
citation omitted).
The ultimate question on review is “whether the prosecutor’s remarks cast
serious doubt on the correctness of the jury’s verdict. In answering this
question, we consider (1) the magnitude of the prejudicial effect of the
prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge,
and (3) the strength of the evidence supporting the conviction.” Thompson, 482
F.3d at 785 (internal quotation marks and citation omitted).
The district court instructed the jury before closing arguments were made
to “consider only the evidence presented during the trial, including the sworn
testimony of the witnesses and the exhibits that have been admitted; . . . [and
to r]emember that any statements, objections, or arguments made by the
lawyers are not evidence.” “We presume that the jury follows the instructions
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No. 08-20748
of the trial court unless there is an overwhelming probability that the jury will
be unable to follow the instruction and there is a strong probability that the
effect is devastating.” United States v. Tomblin, 46 F.3d 1369, 1390 (5th Cir.
1995) (internal quotation marks and citation omitted). Fortenberry “presents
no convincing argument that the jury did not follow the instruction given by the
trial court.” Id. at 1390-91. Moreover, the evidence of Fortenberry’s guilt was
extensive, and he did not attempt to refute his guilt of the offense conduct.
Rather, Fortenberry attempted only to persuade the jury that the district court
lacked jurisdiction to convict him. The district court’s instructions and the
weight of the evidence against Fortenberry “dissipated the potential prejudice
of the prosecutor’s statements,” and any error in their regard does not require
reversal under the plain error standard. Id. at 1391.
Fortenberry last challenges the special condition of his lifetime term of
supervised release that prohibits him from using the internet without prior
written approval from his probation officer. Fortenberry admits that he did not
challenge this provision in the district court. Thus, our review of this special
condition of supervised release is for plain error. See United States v.
Weatherton, 567 F.3d 149, 152 (5th Cir. 2009), cert. denied, – S. Ct. –, 2009 WL
2421734 (U.S. Oct. 5, 2009).
The district court has wide discretion to impose conditions of supervised
release. See United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001). “The
district court has the discretion to impose conditions reasonably related to the
history and characteristics of the defendant or his general rehabilitation.”
United States v. Cothran, 302 F.3d 279, 290 (5th Cir. 2002) (internal quotation
marks and citations omitted). This discretion is limited by 18 U.S.C. § 3583,
which requires that the conditions must be reasonably related to the factors set
forth in 18 U.S.C. § 3553(a)(1) and (a)(2)(B)-(C). These factors include: (1) “the
nature and circumstances of the offense and the history and characteristics of
the defendant,” (2) the need “to afford adequate deterrence to criminal conduct,”
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No. 08-20748
(3) the need “to protect the public from further crimes of the defendant,” and (4)
the need “to provide the defendant with needed [training], medical care, or other
correctional treatment in the most effective manner.” § 3553(a)(1)-(2). The
conditions “cannot involve a greater deprivation of liberty than is reasonably
necessary to achieve the latter three statutory goals.” Paul, 274 F.3d at 165.
Thus far, this court has approved a complete ban on internet usage for the
three year term of supervised release imposed on a defendant who “used the
Internet to encourage exploitation of children by seeking out fellow ‘boy lovers’
and providing them with advice on how to find and obtain access to ‘young
friends.’” Id. at 169. More recently, the Third Circuit upheld a conditional
internet ban, like the one at issue here, for a defendant’s ten-year term of
supervised release. United States v. Thielemann, 575 F.3d 265, 270, 278 (3d Cir.
2009).
Although we recognize the conditional ban on the internet usage for a
lifetime is a harsh condition of supervised release, we cannot say that
Fortenberry has demonstrated that imposition of the same was plainly
erroneous. To show plain error, one thing the appellant must show is an error
that is clear or obvious. Puckett, 129 S. Ct. at 1429. To constitute clear or
obvious error, the error must be, at a minimum, clear or obvious under current
law at the time of appellate consideration. United States v. Dupre, 117 F.3d 810,
817 (5th Cir. 1997). Fortenberry has not made a showing that any alleged error
in imposing the challenged supervised release condition was clear or obvious at
the time of his trial or is clear or obvious under the current law of this circuit.
The judgment of the district court is AFFIRMED.
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