                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 12 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                          Nos. 00-1242, 00-1243, 00-1370
                                                   (D.C. No. 99-CR-120-D)
    GARY D. DEWILLIAMS,                                   (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant Gary D. DeWilliams appeals        1
                                                       from the district court’s entry of

judgment and sentencing following a jury trial. The jury found Mr. DeWilliams

guilty of being a felon in possession of a firearm and ammunition          in violation of

18 U.S.C. § 922(g).    He was sentenced to 293 months’ imprisonment to be served

consecutively to the undischarged term pending in another federal criminal case.

       Police arrested defendant at a motel where they had gone to investigate

possible criminal activity. When they saw defendant, they thought he might be

a person they were seeking and asked for       his identification. Defendant said      his

name was Andre Loftis and presented Colorado            identification with that name.

The photo, however, did not match defendant. In the course of the encounter, the

police did a pat-down search for weapons. Defendant started struggling and

a high-capacity magazine fell to the floor. Police handcuffed him after

discovering he had a gun in the back of his pants.

       Defendant testified he had discovered the gun between the mattresses in

his brother’s motel room when he lay down on the bed. He was afraid that his

brother, Andre Loftis, and his friends were going to commit a crime. He called

his stepfather in order to reach a relative who is a Denver detective       2
                                                                                and put the

1
      Mr. DeWilliams, proceeding pro se, filed appeals Nos. 00-1242 and
00-1243 prematurely before the entry of judgment and sentencing. Counsel
timely filed appeal No. 00-1370. We have consolidated the appeals.
2
       The Denver detective testified that defendant’s        mother was “probably
                                                                            (continued...)

                                            -2-
gun and clip in a brown plastic bag to take them to his relative. When he left the

room, he saw the police, but felt he could not talk to them because he was on

federal parole and was worried about how they would react. He further testified

that he gave them the wrong identification by accident and followed it with the

correct one, both of which were in his sock.

       On appeal, defendant argues   the district court should not have published

a stipulation to the jury without his consent. He also contends the court should

have (1) permitted him to discharge his lawyer and represent himself at

sentencing, (2) instructed the jury on his necessity defense, (3) granted his

motions to suppress evidence, and (4) granted his motion to dismiss for speedy

trial violations.

       To obtain a guilty verdict on a charge of violating § 922(g), the

government must prove: (1) defendant was a felon; (2) the gun traveled in

interstate commerce, and (3) defendant possessed the gun. The stipulation

presented to the jury conceded two of the three elements, i.e., that defendant had

prior felony convictions and that the gun found on his person had traveled in

interstate commerce. Defendant argues he did not agree to stipulating to the

second element.


2
 (...continued)
the stepsister to my wife’s stepfather who passed away several years ago.”
R. Vol. 13 at 335.

                                         -3-
       A defendant has a right under the Fifth and Sixth Amendments to have

a jury determine guilt beyond a reasonable doubt on every element of a charged

offense. United States v. Gaudin , 515 U.S. 506, 509-10 (1995) (United States

Constitution “require[s] criminal convictions to rest upon a jury determination

that the defendant is guilty of every element of the crime with which he is

charged, beyond a reasonable doubt”).         A defendant may stipulate to elemental

facts, thus waiving his right to a jury trial on that element.      United States v.

Mason , 85 F.3d 471, 472 (10th Cir. 1996).          Before accepting the stipulation,

however, the court must determine whether           the defendant agreed to the

stipulation.   See, e.g. , Johnson v. Cowley , 40 F.3d 341, 346 (10th Cir. 1994).

While the district court need not directly question the defendant about the

stipulation, the court may only accept it “so long as the defendant does not

dissent from his attorney’s decision.”       Hawkins v. Hannigan , 185 F.3d 1146,

1155 (10th Cir. 1999) (upholding evidentiary stipulation against Sixth

Amendment challenge because “there is no evidence that [defendant] disagreed

with or objected to his counsel’s decision”);        see also United States v. Herndon ,

982 F.2d 1411, 1418 (10th Cir. 1992) (district court would be better advised to

directly address defendant to ensure “stipulation is entered into voluntarily, that

the defendant understands the stipulation, and that the stipulation has a factual

basis,” though where “district court took great care to ensure [defendant],


                                              -4-
through his trial counsel [and in defendant’s presence], understood the nature of

the stipulation” this court “cho[se] . . . not to exercise our supervisory power” to

disturb resulting conviction on this basis).

       We agree that defendant himself did not voluntarily stipulate to the second

element. Before trial, the government informed the court that “defendant may

or may not agree with this stipulation.” R. Vol. 12 at 8. The court inquired of

counsel whether he agreed to the stipulation and counsel stated that he felt the

stipulation was in his client’s best interests. Prior to publishing the stipulation

to the jury, the government told the court that defendant had “made it clear to

his attorney as well as to the government that he does not wish to stipulate to

the . . . second point [of the stipulation], which is that the gun and the

ammunition involved in this case traveled in interstate [commerce].” R. Vol. 12

at 169. Defense counsel told the court: “There is a stipulation. It stands.”    Id.

at 170. The stipulation was read to the jury. Finally, after the jury retired to

deliberate, counsel informed the court that defendant “maintains his objection to

my stipulation to the interstate element.”     Id. , Vol. 13 at 437.

       The court did not ask defendant about his purported disagreement, nor did

defendant volunteer any comment to indicate that he did not agree with the

stipulation. Prior to any discussion about the stipulation, however, defendant

had twice tried to tell the court that he was not represented by counsel and had


                                             -5-
tried to speak. The court told him, “You cannot address me; you’re represented

by counsel. I will not let you speak to the Court other than through your lawyer.

That’s why you have retained counsel.”        Id. at 8. 3 It clearly appears that any

attempt by defendant personally to indicate he did not agree with the stipulation

would have been rebuffed.

       Due to this unique situation, we cannot hold defendant at fault for not

attempting to speak directly to the court. The government, however, had made

the court aware of defendant’s position. While we do not require that the court

directly address the defendant to determine whether he agrees to the stipulation,

see Herndon , 982 F.2d at 1418, in a situation such as this, where the court was

affirmatively made aware defendant did not agree, the court was under a duty to

investigate further.

       As error occurred, we next discuss whether the error can be deemed

harmless pursuant to Fed. R. Crim. P. 52(a).       4
                                                       The government bears the burden

of proving a lack of prejudice under a trial error analysis.      See United States v.


3
      Counsel had earlier tried to withdraw from the case. The court denied his
motion viewing defendant’s behavior as attempts to further delay the trial.
Defendant had a total of three counsel before the district court and has had three
counsel before this court. Each time new counsel was appointed, the trial date
was delayed. The court’s position is easily understood.
4
      Because defendant brought this issue to the attention of the district court,
we review it under the Fed. R. Crim. P. 52(a) harmless error standard, not
Rule 52(b)’s standard of plain error.

                                             -6-
Olano , 507 U.S. 725, 734 (1993) . To warrant reversal, a harmless “error must

have been prejudicial: It must have affected the outcome of the district court

proceedings.” Id. In reviewing the claim, we evaluate the effect of the error on

the reliability of the jury verdict.   See Sullivan v. Louisiana , 508 U.S. 275, 279

(1993). Trial error which occurs “during the presentation of the case to the jury

. . . may . . . be quantitatively assessed in the context of the other evidence

presented in order to determine whether its [effect] was harmless beyond a

reasonable doubt.”     Arizona v. Fulminante , 499 U.S. 279, 307-08 (1991). If

error occurred and it is deemed harmless, i.e., it did not result in a fundamentally

unfair trial, the conviction should be affirmed on the basis “that the record

developed at trial established guilt beyond a reasonable doubt . . . .”   Pope v.

Illinois , 481 U.S. 497, 502-03 (1987) (quotation omitted).      5



       A harmless error analysis shows that vacation of the judgment is required

because the record contains no evidence at all on the second element. The

government had two witnesses available to testify on that element. When

counsel and the government agreed to the stipulation, the court permitted the

witnesses to leave. As the government was aware of defendant’s reservations

about entering into the stipulation, it could have presented its witnesses at trial


5
      We need not address the question of whether the error might be structural
because the record in this case reveals that the error was not harmless under our
harmless-error analysis. Thus, the result is the same under either approach.

                                             -7-
to establish the second element without violating the strictures set forth in        Old

Chief v. United States , 519 U.S. 172, 191-92 (1997).        See United States v. Tan ,

254 F.3d 1204, 1213 (10th Cir. 2001) (“      Old Chief does not require the exclusion

of other crimes evidence where there is a stipulation to an element of the

charged crime where the evidence is offered to prove an element other than

felony-convict status.”).

       To find the error here harmless, we would have to speculate as to the

government’s evidence on the second element. This we may not do. “The Sixth

Amendment requires more than appellate speculation about a hypothetical jury’s

action . . . .” Sullivan , 508 U.S. at 280. Further, if we were to hold that the

government could have presented sufficient evidence on the second element,

“the wrong entity [would] judge the defendant guilty.”            Id. at 281 (quotation

omitted ).

       We will address defendant’s remaining appellate issues as they may arise

again at retrial. Defendant argues that the trial court should have permitted him

to proceed pro se at sentencing. A defendant has an unqualified right to

self-representation only if the right is demanded before trial.         United States v.

Mayes , 917 F.2d 457, 462 (10th Cir. 1990) “If the right is not asserted before

trial, it becomes discretionary with the trial court whether to allow the defendant

to proceed pro se .” Id. (quotation omitted). Further, “[t]o invoke the right of


                                            -8-
self-representation, defendant must clearly and unequivocally assert his intention

in a timely manner.”    United States v. Beers , 189 F.3d 1297, 1303 (10th Cir.

1999). Defendant filed a motion to proceed pro se at sentencing on July 27,

2000. He filed a motion for appointment of new counsel on August 4, 2000. At

sentencing, counsel indicated that defendant desired new counsel. Defendant

did not “clearly and unequivocally assert his” desire to proceed pro se.

       Defendant argues that the court should have instructed the jury on his

necessity defense. Defendant testified at trial that he had discovered the gun

when he lay down on a bed in the motel room his brother had rented. He feared

his brother was going to attempt a drug ripoff and took the gun to prevent any

such action.

       “The refusal to give a particular jury instruction, even if the instruction is

an accurate statement of the law, is within the discretion of the district judge.”

United States v. Turner , 44 F.3d 900, 901 (10th Cir. 1995) (quotation omitted).

“A defendant is not entitled to an instruction which lacks a reasonable legal and

factual basis.”   Id. (quotation omitted).

       “The defense of necessity does not arise from a ‘choice’ of several courses

of action . . . . It can be asserted only by a defendant who was confronted

with . . . a crisis which did not permit a selection from among several solutions,

some of which did not involve criminal acts.”      Id. at 902 (quotation omitted).


                                             -9-
Defendant had several reasonable legal options he could have pursued.         See

United States v. Bailey , 444 U.S. 394, 410 (1980) (“if there was a reasonable,

legal alternative to violating the law . . . the defense[] [of necessity] will fail”).

The district court did not abuse its discretion in refusing to give this instruction.

Defendant could have called his relative to come to the motel to get the gun or

he could have told Aurora police that he was a convicted felon, but had a gun on

his person as he was afraid a crime was about to be committed.

      Defendant contends the court should have granted his motions to suppress

evidence the police discovered upon searching the motel room. Defendant had

told the officers to look in the room to find his U.S. Marshal identification. No

illegal search and seizure occurred. Most importantly, the evidence necessary to

establish the elements of the crime with which he was charged was the gun and

ammunition found on his person. No error occurred.

      Finally, defendant asserts the court should have granted his motion to

dismiss for speedy trial violations. Defendant made his initial appearance

April 16, 1999. Trial commenced June 6, 2000. However, no error occurred.

The delays in this case resulted from motions defendant filed in district court,

consideration of those motions by the court, and defendant’s requests for

continuances and are excluded in computing the time within which trial must

commence. See 18 U.S.C. § 3161(h).


                                          -10-
      The judgment of the United States District Court for the District of

Colorado is VACATED and the case is REMANDED to the district court for

further proceedings in accordance with this order and judgment.


                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




                                       -11-
