                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4397


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LARRY RODGERS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:11-cr-00218-H-1)


Submitted:   April 16, 2013                 Decided:   August 12, 2013


Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.       Judge Diaz wrote a
separate concurring opinion.


Kelly L. Greene, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Larry     Rodgers,       Jr.,     appeals     his       conviction     after     a

jury convicted him of one count of conspiracy to commit armed

bank robbery, in violation of 18 U.S.C. § 371 (2006); one count

of armed bank robbery and aiding and abetting, in violation of

18 U.S.C. §§ 2113(a), (d) (2006), and 2 (2006); and one count of

using and carrying a firearm during and in relation to a crime

of violence and aiding and abetting, in violation of 18 U.S.C.

§§ 924(c)(1)(A)(ii) (2006) and 2.                 Rodgers was sentenced to 209

months’    imprisonment.          On    appeal,         Rodgers       argues      that     the

district     court    erred     in     allowing        him     to    represent      himself

because he was not competent to act as his own counsel, and

denied     him    a   fair     trial     in      its     management         of    courtroom

proceedings.

            The Sixth Amendment guarantees not only the right to

be   represented         by      counsel         but         also     the        right      to

self-representation.           Faretta v. California, 422 U.S. 806, 819

(1975).     The decision to represent oneself must be knowing and

intelligent,       id.   at    835,     and      courts       must     entertain         every

reasonable       presumption    against         waiver    of    counsel.          Brewer v.

Williams, 430 U.S. 387, 404 (1977).                    Because Rodgers contends he

was not competent to waive counsel, we review the record to

ensure that the waiver was voluntary, knowing, and intelligent.

United States v. Bernard, 708 F.3d 583, 588 (4th Cir. 2013).

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This issue, raised for the first time on appeal, is reviewed for

plain error.       United States v. Olano, 507 U.S. 725, 732 (1993);

Bernard, 708 F.3d at 587-88.

            While     a    trial      court     must      determine     if    a    waiver    of

counsel is knowing and intelligent, no particular interrogation

of the defendant is required, so long as the court warns the

defendant of the dangers of self-representation so that “‘his

choice is made with his eyes open.’”                      United States v. King, 582

F.2d 888, 890 (4th Cir. 1978) (quoting Faretta, 422 U.S. at

835).       “The     determination            of    whether       there      has    been    an

intelligent waiver of the right to counsel must depend, in each

case, upon the particular facts and circumstances surrounding

that case, including the background, experience, and conduct of

the accused.”        Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see

United States v. Singleton, 107 F.3d 1091, 1097-98 (4th Cir.

1997).

            We conclude that the district court did not err in

granting Rodgers’ request to waive counsel and proceed pro se.

Our   examination     of       the    record       as    a   whole     demonstrates        that

Rodgers’ election to proceed pro se was knowing, intelligent,

and   voluntary.          At    the    time    he       elected   to    proceed     pro     se,

Rodgers was fully aware of the nature of the charges against him

and   the   potential          punishments         he    faced    if   convicted.           The

district     court        also       informed       Rodgers       of    the       perils     of

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self-representation and stated its belief that he was making a

mistake.

           Rodgers contends that his history of depression and

learning disabilities, combined with the fact that he spent his

school years in special education classes, made him incompetent

to represent himself, and argues that the district court erred

in failing to sua sponte terminate his self-representation when

it became apparent he was unqualified to represent himself.           To

support this argument, Rodgers points to the Supreme Court’s

decision in Indiana v. Edwards, 554 U.S. 164, 171 (2008), and

states that “the right of self-representation is not absolute.”

Unlike the defendant in Edwards, however, Rodgers did not suffer

from   a   severe   mental   illness,   but   merely   displayed    some

difficulty communicating with the court and jury.         We conclude

that these difficulties were insufficient to require the court

to terminate Rodgers’ self-representation.

           Rodgers next contends that he was deprived of a fair

trial by the district court’s allegedly prejudicial conduct.           He

asserts that the court interfered with his ability to put on a

case, truncated his cross-examination of witnesses as well as

his own testimony, and ultimately forced him to rest his case.

We review these allegations for abuse of discretion.               United

States v. Castner, 50 F.3d 1267, 1272 (4th Cir. 1995).



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               Generally,        “[q]uestions         of    trial     management         are

quintessentially the province of the district courts.”                              United

States    v.    Smith,     452    F.3d    323,       332   (4th    Cir.    2006).        The

district court has two responsibilities in trial oversight —

ensuring that “matters are clearly presented to the jury” and

preventing “trials from becoming protracted and costly affairs.”

Id.      The    court     “must    exercise         reasonable      control      over    the

interrogation of witnesses and the presentation of evidence in

order to ensure the effective determination of the truth [and]

to avoid needless waste of time in the presentation of a case.”

Castner, 50 F.3d at 1272 (internal quotation marks omitted).                              We

will grant a new trial only if the district court’s actions

denied the appellant “a fair, as distinguished from a perfect,

trial.”     United States v. Villarini, 238 F.3d 530, 536 (4th Cir.

2001) (internal quotation marks omitted).

               Here, the district court did not excessively interfere

with   Rodgers’     exercise       of    his       right   to    proceed   pro     se,   but

properly       required    Rodgers       to    observe      the    rules    of     criminal

procedure and evidence and exercised its discretion to limit

repetitive and cumulative examination of witnesses.                              Thus, the

district court’s interventions into Rodgers’ case were for the

purpose of clarifying the evidence for the jury and ensuring

that     evidence    was    properly          presented         without    undue     delay.



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Therefore, we conclude that Rodgers has failed to demonstrate

that the district court’s conduct resulted in an unfair trial.

           Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral   argument   because    the   facts   and   legal

contentions     are   adequately   presented   in   the   materials     before

this court and argument would not aid the decisional process.



                                                                   AFFIRMED




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DIAZ, Circuit Judge, concurring:

     I   continue   to   doubt   the   wisdom   of   applying   plain   error

review to the appeal of a pro se defendant alleging a defective

Faretta waiver on the basis of mental incompetency, for “it is

paradoxical to expect a defendant to recognize his own ‘gray

area’ competency, and then object to his own motion to proceed

pro se.”   United States v. Bernard, 708 F.3d 583, 596 (4th Cir.

2013) (Diaz, J., dissenting).              But because the facts of this

case demonstrate no error in Rodgers’s Faretta waiver under any

standard of review, I concur in the judgment.




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