United States v. Jason Anthony Hayes , 56 F. App'x 294 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2718
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Jason Anthony Hayes, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 14, 2003
Filed: February 25, 2003
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Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Jason Anthony Hayes appeals his convictions for being a domestic abuser in
possession of a firearm (18 U.S.C. §§ 922(g)(9) (2000), 924(a)(2) (2000)) and a felon
in possession of a firearm (18 U.S.C. §§ 922(g)(1) (2000), 924 (a)(2) (2000)). For
reversal, Hayes claims the District Court,1 in denying Hayes's motion for a new trial,
erred by finding, after an evidentiary hearing, that Hayes knowingly and voluntarily
waived his right to testify.
1
The Honorable R. E. Longstaff, United States District Judge for the Southern
District of Iowa.
The District Court did not err. A defendant who does not alert the trial court
that he wishes to testify when his attorney rests without calling him to the stand has
waived his right to testify. United States v. Bernloehr, 833 F.2d 749, 751-52 (8th Cir.
1987). In the present case, Hayes did nothing at trial to signal the District Court that
he disagreed with his trial counsel's decision to rest without Hayes's testimony.
Under Bernloehr, Hayes is barred from claiming he was denied his right to testify.
Even if Bernloehr were not controlling, the record is replete with evidence to
support a finding that Hayes was aware of, and knowingly and voluntarily waived,
his right to testify. This evidence includes Hayes's previous experience with the
criminal-justice system and the testimony of his trial counsel. The District Court
expressly found that Hayes was not a credible witness, a finding that is not clearly
erroneous. See United States v. Santos-Garcia, 313 F.3d 1073, 1081 (8th Cir. 2002)
(noting that a district court's credibility findings are virtually unreviewable on
appeal).
The judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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