United States v. Awala

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-11-2008
USA v. Awala
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5479
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-5479
UNITED STATES OF AMERICA
v.
GBEKE AWALA,
Appellant
No: 06-2718
UNITED STATES OF AMERICA
v.
GBEKE MICHAEL AWALA,
Appellant
On Appeal from the United States District Court
for the District of Delaware
D.C. No. 04-cr-00090
District Judge: Hon. Kent A. Jordan
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 6, 2007
Before: McKee, Chagares & Hardiman, Circuit Judges
(Filed: January 11, 2008)
OPINION
McKee, Circuit Judge
Gbeke Awala appeals his conviction for illegal re-entry following deportation from
the United States in violation of 8 U.S.C. §§ 1326(a), (b)(2). For the reasons that follow,
we will affirm the judgment of conviction.
Inasmuch as we write primarily for the parties who are familiar with this case, we
need not recite the factual or procedural background.
I.
Awala relies in large part upon Illinois v. Allen, 397 U.S. 337 (1970) in arguing
that the district court erred in not allowing him to return to the courtroom after removing
him because of his outburst. The Court in Allen recognized three general responses to a
disruptive defendant. Awala stresses that the judge here did not adopt any of the
responses authorized under Allen, and he notes that the judge did not allow him the same
opportunity to return to the trial that Allen was afforded. Awala also stresses that his
attorney twice told the court that he (Awala) wished to return and promised to behave if
allowed to return. Nevertheless, the court persisted in forbidding Awala’s return. Awala
claims that this was a violation of his Fifth and Sixth Amendment rights.
Although the court’s response here was not one of the responses discussed and
approved in Allen, the Court in Allen carefully avoided limiting a trial court’s options.
The Court did not hold that the Constitution only permitted the three responses to
disruptive behavior that it discussed. Rather, the Court merely held that the trial court’s
response to Allen’s conduct was not an abuse of discretion or a constitutional violation.
Id. at 347. Given the nature of Awala’s conduct, and the judge’s appropriate and well-
founded concern that Awala was attempting to manipulate the process, we cannot
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conclude that the trial court here abused its discretion in not allowing Awala to return to
the courtroom.
Awala also cites Fed. R. Crim. P. 43. That Rule states that a defendant must be
present “at every trial stage including jury empanelment and the return of the verdict.”
However, the rule also provides that a defendant waives the right to be present “when the
court warns the defendant that it will remove the defendant from the courtroom for
disruptive behavior, but the defendant persists in conduct that justifies removal from the
courtroom.” Fed. R. Crim. P. 43(c)(1)(C). Awala claims he was not warned about
removal as required by the Rule. The record is to the contrary. The court told Awala:
“You’ve got to compose yourself or I will take you out of here,” and “Can you compose
yourself and do you want me to continue or do you want me to have you removed from
the courtroom?” Awala was also warned before the trial even began. He became
disruptive during a hearing on his motions, and he was warned then that he would be
removed and stand-by counsel would be appointed if he did not behave.
II.
Awala also claims that the court should have granted a mistrial after his outburst.
However, the trial judge concluded (with substantial justification), that Awala’s
distruptive behavior “was more likely than not calculated to cause a mistrial,”* and gave
an appropriate curative instruction.
*
After the defendant was removed from the courtroom, he told a Deputy Marhsall: “I
did what I had to do. I had to do it.” App. 383.
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Awala argues that the court should have conducted a voir dire of the jurors to
ascertain if they could be objective after his outburst. However, he never requested any
such voir dire, and it was not required given the court’s instructions. Moreover, as we
have previously explained, allowing “courtroom outbursts and disruptions” to constitute
“justifications for retrials. . . would provide an easy device for defendants to provoke
mistrials whenever they choose to do so.” United States v. Bamberger, 456 F.2d 1119,
1128 (3d Cir. 1972).
III.
Awala argues that the district court erred in failing to allow counsel to argue the
corpus delicti rule in his closing argument and refusing to give the jury any instruction on
the rule. The court refused to give the proffered instruction because the court was not
persuaded that the proffered instruction was a correct statement of the law and because it
was submitted after jury instructions had already been submitted and approved by both
parties.
By failing to raise this issue until after jury instructions had already been approved,
Awala has waived it. Moreover, even if it had been raised, the request should have been
rejected because the corpus delicti doctrine does not apply here. See Warszower v.
United States, 312 U.S. 342 (1941).
IV
Awala’s challenge to the weight and sufficiency of the evidence is an extension of
his corpus delicti argument. He claims that, absent his own statements, the only evidence
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of his alienage is his Nigerian birth certificate and Agent Gonzalez’s statement that there
was nothing in Awala’s file to prove he was an American citizen. However, his own
statement and Agent Gonzalez’s testimony were properly in evidence, and the evidence
introduced is sufficient to support the verdict. United States v. Hodge, 321 F.3d 429, 439
(3d Cir. 2003).
V.
Awala has filed a pro se motion arguing for the opportunity to file a pro se brief.
However, he continues to be represented by Mr. Stretton who is an exceptionally capable,
experienced and professional attorney. We reject Awala’s argument that Stretton is no
longer representing him because we have not granted Stretton leave to withdraw, and
Stretton has submitted a brief on behalf of Awala. Accordingly, Stretton is more than the
standby counsel Awala tries to portray him as. Inasmuch as Awala continues to be ably
represented, we will not consider Awala’s pro se brief. See L.A.R. 31.3.
Conclusion
For all the reasons set forth above, we will affirm the judgment of conviction.
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