     Case: 13-41091      Document: 00512693538         Page: 1    Date Filed: 07/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit


                                      No. 13-41091
                                                                                    FILED
                                                                                July 10, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                                 Plaintiff – Appellee
v.

ALBERTO MEJORADO

                                                 Defendant – Appellant



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:12-CR-364


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Appellant Alberto Mejorado (“Mejorado”) appeals his conviction and
sentence of 120 months of imprisonment for possession with the intent to
distribute    more     than    five    kilograms     of   cocaine,     in   violation           of
21 U.S.C. §§ 841(a)(1)(A) and 842(b)(1)(A). The sole issue on appeal concerns
the district court’s decision to allow Mejorado to waive the right to counsel and
represent himself at a suppression hearing. Because Mejorado validly waived
counsel, we AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-41091


      On the evening of April 20, 2012, United States Border Patrol agents
arrested Mejorado at the Falfurrias, Texas, checkpoint after a canine was
alerted to narcotics in Mejorado’s car. The search of the vehicle turned up
several bundles of cocaine. After a Border Patrol agent read the arrestee his
Miranda rights, Mejorado admitted that he had knowingly smuggled the drugs
in question but insisted that he was unaware what type of drugs they were.
Mejorado stated that earlier that day, at the instruction of two unnamed
persons, he parked his car at a Wal-Mart in Alamo, Texas, left the keys inside,
entered the store and remained there until he received a phone call informing
him that the drugs had been stashed in his vehicle. Mejorado was directed to
drive north, and advised that he would be given further instructions once he
passed through the Falfurrias checkpoint. Additionally, Mejorado told a Drug
Enforcement Agency agent—who also read him his Miranda rights—that he
believed he was smuggling between 40 and 45 pounds of marijuana.
      Mejorado was charged with one count of possession with intent to
distribute more than five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1)(A) and 842(b)(1)(A). Before trial, Mejorado was represented by
several attorneys and underwent two competency evaluations.            Retained
counsel represented Mejorado at his arraignment, but later withdrew, citing
“differences in opinion on the strategy that should be employed.”     The court
appointed the Federal Public Defender to represent Mejorado, but Mejorado
eventually asked for another attorney.        Finally, Juan Reyna (“Reyna”)
appeared for Mejorado and moved the magistrate judge to commit the
defendant for a psychiatric evaluation to determine his competency.         The
magistrate granted the motion.    At a subsequent hearing, Judge Head, the
presiding district court judge, ordered a second competency evaluation. Both
examinations concluded that the defendant was competent to stand trial.
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                                       No. 13-41091


Shortly before the second competency report was filed, Mejorado moved to
waive representation.          Judge Head conducted a hearing, granted the
defendant’s motion to represent himself, and appointed Reyna as standby
counsel. 1   Mejorado, now pro se, next moved to suppress his post-arrest
statements and argued in favor of the motion at the evidentiary hearing. The
court denied the motion and admitted the statements. At trial, Mejorado
allowed Reyna to defend him, and the jury returned a guilty verdict. Mejorado
underwent a third competency examination before sentencing, and was again
deemed competent.            Judge Head sentenced him to 120 months of
imprisonment.
       It is well-established that a defendant’s decision to represent himself
must be made knowingly and voluntarily. Faretta v. California, 422 U.S. 806,
835, 95 S. Ct. 2525, 2541 (1975). The district court is responsible for ensuring
that the waiver of counsel is not the result of coercion or mistreatment, and
must be satisfied that the accused understands the nature of the charges, the
consequences of the proceedings, and the dangers and disadvantages of self-
representation. United States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003). To
make this determination, the court must consider, inter alia, “defendant’s age,
education, background, experience, and conduct.” Id.




       1 Mejorado mentions that the court violated his Fifth and Sixth Amendment rights by
preventing him from consulting with Renya during the suppression hearing, but fails to
adequately brief this assertion. The closest that Mejorado comes to arguing the point is the
Delphic reference in his reply brief to McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944
(1984). Mejorado, however, does not explain how McKaskle, which held that a defendant’s
Sixth Amendment right are not violated when a trial judge appoints standby counsel, or any
other case or authority supports his view. Accordingly, the issue is waived. United States v.
Bailentia, 717 F.3d 448, 449 (5th Cir. 2013) (holding that an inadequately briefed assertion
is waived on appeal), cert. denied, 134 S. Ct. 543 (2013); FED. R. APP. P. 28(a)(8) (requiring
that an issue raised on appeal be supported by contentions, reasons, and citations).
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                                 No. 13-41091


      It is impossible to read the Faretta transcript here and not conclude that
Mejorado was aware of what he was doing when, against the repeated
warnings of Judge Head, he waived his right to counsel. Judge Head conducted
a thorough inquiry that tracked the controlling authorities as well as the
recommended colloquy set forth in the BENCHBOOK FOR U.S. DISTRICT COURT
JUDGES § 1.02(C) (6th ed. 2013). Through a series of incisive questions, the
court ascertained that Mejorado was not coerced into proceeding pro se and
knew the risks associated with representing himself in a drug possession
prosecution.   To ensure that Mejorado appreciated the perils of self-
representation, Judge Head pointedly asked Mejorado if he had ever needed to
undergo an operation, and whether he had a doctor perform the surgery. When
Mejorado answered both questions affirmatively, the court noted that trying a
case pro se was equivalent to performing an operation on oneself. Judge Head
also made certain that Mejorado understood exactly the kind of representation
that he was waiving. The court examined Reyna about his trial experience in
Mejorado’s presence, and then contrasted Reyna’s extensive criminal defense
background with Mejorado’s complete lack of experience and background in
criminal litigation.   On several occasions, the court strongly admonished
Mejorado in the simplest terms that proceeding without counsel was a very
bad idea.   Judge Head advised Mejorado that he had a better chance of
acquittal with Renya defending him, and that he had not seen a single criminal
defendant proceed pro se during his 31 years as district court judge.
Throughout the hearing, Mejorado made comments to the effect that he
understood the dangers and practical challenges of self-representation, but
still desired to proceed pro se. In sum, the court’s Faretta inquiry clearly
establishes that Mejorado’s waiver of counsel was knowing and voluntarily.


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                                 No. 13-41091


      Mejorado argues that the district court’s ruling conflicts with Indiana v.
Edwards, 554 U.S. 164, 128 S. Ct. 2379 (2008). In Edwards, the Supreme
Court held that a State could insist that a criminal defendant with sufficient
mental competence to stand trial must proceed with counsel where the
defendant lacks the mental capacity to conduct his own trial defense. Id. at
174, 128 S. Ct. at 2385-86. The defendant in Edwards was found to suffer from
mental illness, delusional thinking, and for a time was deemed incompetent to
stand trial. Id. at 167-68, 128 S. Ct. at 2382. Here, each of the experts who
examined Mejorado found him not to have any mental illness, but to have been
malingering and intentionally appearing less intelligent to avoid punishment.
Thus, the present case is distinguishable from Edwards.
                                                                  AFFIRMED




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