United States v. John Cockerham, Jr. , 396 F. App'x 66 ( 2010 )

Case: 09-51115 Document: 00511241707 Page: 1 Date Filed: 09/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2010
No. 09-51115
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN COCKERHAM, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CR-511-1
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
John Cockerham, Jr., appeals his guilty plea convictions of conspiring to
defraud the United States and to commit an offense against the United States,
bribery, and conspiring to commit money laundering. Cockerham claims that
his right to a public trial was violated because the courtroom was closed during
his guilty plea hearing and because the district court did not announce that the
courtroom 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-51115 Document: 00511241707 Page: 2 Date Filed: 09/22/2010
No. 09-51115
The Government does not invoke the appeal waiver provision of
Cockerham’s plea agreement. Therefore, the waiver provision does not bar
Cockerham’s appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir.
2006). The Government contends, however, that Cockerham waived his right to
a public trial.
The 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
his Sixth Amendment right to a public trial by failing to object to the closing of
the 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
of the closure of the courtroom, fails to object, that defendant waives his right to
a public trial.”).
As the transcript of the guilty plea hearing makes clear, Cockerham’s trial
counsel urged that the proceedings be kept secret so as to increase his client’s
opportunities to provide substantial assistance to the Government and thereby
obtain a reduction in his sentence. We have no difficulty inferring from the
transcript that Cockerham’s trial counsel was aware of the closure of the
courtroom prior to and during Cockerham’s plea hearing. Additionally, there is
no indication in the record that either Cockerham or his trial counsel objected
to the closure of the courtroom during the plea hearing itself, at any subsequent
proceeding, 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
defendant’s attorney’s waiver of the right to a public trial is effective on the
defendant.”).
After the parties submitted briefs, Cockerham filed two pro se motions.
In the first such motion, he requested an order mandating his appointed
appellate counsel to raise certain issues on direct appeal or, in the alternative,
an order dismissing his current attorney and appointing new appellate counsel.
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No. 09-51115
In 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.
Cockerham cannot force his appellate counsel to advance issues with
which counsel does not agree, and he does not have the right to new appointed
counsel who necessarily agrees with him. See Vega v. Johnson, 149 F.3d 354,
361 (5th Cir. 1998). He has no constitutional right to self-representation on
appeal, see Martinez v. Court of Appeal of California, 528 U.S. 152, 163 (2000),
and he is not entitled to hybrid representation on appeal. See United States v.
Ogbonna, 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
901, 902-03 (5th Cir. 1998). Further, “[b]y accepting the assistance of counsel
the 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
authorities, Cockerham’s pro se motions are denied.
AFFIRMED; MOTIONS DENIED.
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