                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                    March 16, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 05-50934




                     UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee


                               VERSUS


                      MARIO GUILLERMO IBARRA,


                                                  Defendant-Appellant



          Appeal from the United States District Court
                For the Western District of Texas
                            (05-CR-15)



Before DAVIS, DENNIS and PRADO, Circuit Judges.

PER CURIAM*

     In this direct criminal appeal, Defendant-Appellant Mario

Guillermo Ibarra (“Ibarra”) challenges his convictions under 18

U.S.C. § 911 and 8 U.S.C. § 1326 on the ground that he was denied

the right to represent himself at trial.     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this opinion should not be published and is not precedent except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.
                                         I.

     On December 6, 2004, Ibarra was arrested by United States

Customs and Border Protection inspectors at a port of entry in El

Paso, Texas.      Ibarra was accused of violating 18 U.S.C. § 911

(falsely and willfully representing himself to be a U.S. citizen)

and 8 U.S.C. § 1326 (attempting to reenter the United States after

prior   deportation).          Richard    Mattersdorf       (“Mattersdorf”)      was

appointed to represent Ibarra in the district court.

     Three     days    after   his   appointment,          Mattersdorf   moved   to

withdraw as counsel for Ibarra on the ground of a conflict between

the two men.    As support for the motion, Mattersdorf explained that

Ibarra did not believe that Mattersdorf was his lawyer and that

Ibarra had     specifically      said    he    did   not    want   Mattersdorf    to

represent him.        The court denied the motion to withdraw.

     On May 5, 2005, Mattersdorf filed a second motion for leave to

withdraw and in support detailed a meeting he had with Ibarra in

which Ibarra had torn up a psychiatric evaluation counsel had given

him, had informed counsel that he did not request or want his

services, and had hung up his telephone on his side of the attorney

visiting booth and refused to pick it back up.                 Mattersdorf asked

the court to grant the motion to withdraw during the following

exchange in a May 5, 2005, hearing on the subject of Ibarra’s

competency:

        MATTERSDORF: Mr. Ibarra . . . does not desire my
   services. I believe he may prefer to represent himself .


                                         -2-
   . . .
        THE COURT:     Well, he’s not going to represent
   himself.
        IBARRA: Your Honor, can I say a word? . . . I just
   want to let you know that I didn’t like the [psychiatric]
   evaluation. It was so negative and even though I have
   emotional problems . . . I am an honest person,
   trustworthy and responsible . . . .
        THE COURT: I can understand what you’re saying, but
   . . . you are not a citizen. You have no right to remain
   in this country.
        IBARRA: Well, I am a U.S. citizen.       I have two
   nationalities and that’s all I’m going to say. I’m not
   willing to say anything more.
        THE COURT: Okay. If I appoint you another attorney,
   are you going to cooperate with the attorney?
        IBARRA: I will not coop—I am not going to cooperate
   with any attorneys because that’s the truth and nothing
   but the truth, so–
        THE COURT: Okay.
        IBARRA: If the country wants to reject me, it’s up to
   them, because I am an honest, responsible person and I
   have been serving the country as well; never caused any
   problems. That’s all I’m going to say.
        THE COURT: Okay. Okay. We’ll set you for trial.

     After the court addressed the psychiatric evaluation, which

had determined Ibarra possessed the ability to understand the

proceedings against him as well as sufficient ability to consult

with his attorney and assist in his own defense, the following

exchange took place:

          MATTERSDORF: Would the Court entertain a motion to
     allow Mr. Ibarra to proceed pro se?
          THE COURT: No. Don’t give him any ideas.
          MATTERSDORF: Well, he already has the idea, Your
     Honor. I wish I could take credit for giving him–
          THE COURT: He’s already convicted himself [in a
     letter to the court], quite frankly. Anything he says is
     going to be–is not going to make any difference. I may
     find as a matter of law he’s not a citizen. Period . .
     . .
          THE COURT: June the 20th. You will represent him.
     And don’t give him any ideas about pro se.     It’s bad


                               -3-
     enough having a fool for a client.
          IBARRA: Sir,–Your Honor can I say a word?. . . I am
     30 years old and I don’t want nobody to represent me. So
     I want you just to give your final decision or decisions
     because I don’t want to waste my time.
          THE COURT: What do you mean you want a decision? Are
     you pleading guilty?
          IBARRA: I don’t want him.         I don’t need no
     attorneys. I already tell you that–

(emphasis added).      At this point, the court did not further address

the issue of self-representation but instead the discussion turned

to Ibarra’s right to a jury trial.         The court explained to Ibarra

that he had a better chance in front of a jury than he would in a

bench trial and after statements by Ibarra disputing the charges

against him, the court set the case for a jury trial.

     On   June   14,    2005,   a   pretrial   conference   was   held   at

Mattersdorf’s request to inform his client in open court of the

Government’s plea bargain.      At the conference, Ibarra restated his

belief in his innocence:

          IBARRA: I didn’t commit any misdemeanors or any
     offense, those things that [the AUSA] was talking about.
     I have no idea. I am an honest person and responsible
     person, and I feel bad about it and disappointed of the
     authorities and the way they have been treating me, and
     the way I have been, you know.
          Plus that’s why one of the reasons that I don’t
     really agree to have an attorney and not even to be in
     front of a judge and in front of the jury, or on trial,
     is because it’s kind of, you know, it’s like making fun
     of me . . . .

(emphasis added).      Ibarra ultimately refused the plea bargain.

     On June 20, 2005, the case proceeded to jury trial with

Mattersdorf acting as counsel.       At the conclusion of the trial, the



                                     -4-
jury found Ibarra guilty on both counts and the trial judge

sentenced him to a four year term of non-reporting probation.

     On appeal, Ibarra, still represented by Mattersdorf, argues

the district court denied him his Sixth Amendment right to self-

representation   when   it   failed     to   consider   or   grant   him   the

opportunity to proceed pro se despite what Ibarra construes as four

separate oral motions, including: (1) Mattersdorf’s statements at

the May 5, 2005, competency hearing that Ibarra “may prefer to

represent himself” and his inquiry to the court at that same

hearing as to whether “the Court [would] entertain a motion to

allow Mr. Ibarra to proceed pro se;” (2) Ibarra’s statement at the

competency hearing that “I am 30 years old and I don’t want nobody

to represent me;” (3) Ibarra’s statement at the competency hearing

that “I don’t need no attorneys;” and (4) Ibarra’s statement at the

June 14, 2005, pretrial conference that “I don’t really agree to

have an attorney.”

                                  II.

     Ibarra’s constitutional challenge to the district court’s

rulings are reviewed de novo.1

                                  III.

     In Faretta v. California, the Supreme Court held that a

defendant has a Sixth Amendment right to represent himself if he

knowingly and intelligently chooses to forego the assistance of


     1
      United States v. Virgil, 444 F.3d 447, 452 (5th Cir. 2006).

                                      -5-
counsel.2   Unlike the Sixth Amendment right to counsel, which is in

effect until waived, the right to self-representation is not

effective        until    asserted.3           To    assert    his       right     of

self-representation, a defendant must “knowingly and intelligently”

waive his right to counsel, and the request must be “clear and

unequivocal.”4

     Where a fundamental constitutional right such as the right to

counsel is concerned, courts indulge every reasonable presumption

against waiver.5         In the absence of a clear election to forego

counsel,    a    court   should   not    quickly      infer   that   a   defendant

unskilled in the law has waived counsel and has opted to conduct

his own defense.6        This circuit strictly construes the “clear and

unequivocal” requirement.7

     In Burton v. Collins, we held that where surrounding dialogue

gave rise to reasonable competing interpretations attributable to

a defendant’s inquiry into whether he could represent himself, such

competing       interpretations   were        “the   best   evidence     that    [the

defendant] did not clearly and unequivocally assert his right to



     2
      422 U.S. 806, 819, 836 (1975).
     3
      Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982).
     4
      Faretta, 422 U.S. at 835; Brown, 665 F.2d at 610.
     5
      Burtons v. Collins, 937 F.2d 131, 133 (5th Cir. 1991).
     6
      Id. (internal citations and quotations omitted).
     7
      Id.

                                        -6-
representation.”8       In Burton, the defendant asked for new counsel

just prior to his request for self-representation. The trial court

denied both requests.        On appeal, we held that the request for new

counsel made it unclear as to whether the subsequent statement

regarding       self-representation          was     merely   an    expression       of

dissatisfaction with current counsel or an assertion of the right

to self-representation.         We stated that “[i]n absence of a clear

indication by the defendant of his desire to waive his fundamental

constitutional right to counsel, we are unwilling to infer from an

ambiguous record that such a waiver existed.”9

       In this case, statements delivered contemporaneously with the

purported       self-representation          requests      similarly       create     a

reasonable       interpretation       of     the     requests      other    than    an

interpretation        that   Ibarra     sought       to   waive    his    fundamental

constitutional right to counsel.             One reasonable interpretation is

that       Ibarra’s   statements      were       simply   meant    to    express    his

dissatisfaction with his detention and the judicial process.                        For

instance, as detailed above, before statements regarding waiver of

counsel at the May 5th competency hearing, Ibarra had stressed his

innocence: “Well I am a U.S. citizen.               I have two nationalities and

that’s all I’m going to say.           I’m not willing to say anything more

. . . I am not going to cooperate with any attorneys because that’s


       8
        Id. at 134.
       9
        Id. (citations omitted).

                                           -7-
the truth and nothing but the truth.”                 Further, after the purported

self representation requests, Ibarra said “so I want you just to

give your final decision or decision because I don’t want to waste

my time.” Similarly, Ibarra’s statement at the June 14th pre-trial

hearing that “I don’t really agree to have an attorney” should be

viewed     in    the   context    of     the     words   which      came   immediately

afterwards: “[I don’t agree] not even to be in front of a judge and

in front of the jury or on the trial, is because it’s kind of, you

know, it’s like making fun of me . . . .”

     These statements can reasonablely be interpreted as verbal

protests meant to express Ibarra’s disagreement with his detention

and the whole notion of a trial on his guilt or innocence rather

than an        assertion   of    the    right    to    self-representation.        The

reasonableness of this interpretation is bolstered by the lack of

any affirmative request on the part of Ibarra to present his case

directly to the jury.            Instead, Ibarra’s statements only concern

the discharge of counsel.           Because the statements are subject to a

reasonable competing interpretation unrelated to the waiver of the

right     to    counsel    and    the    assertion       of   the    right   to   self-

representation, Ibarra has not established that he clearly and

unequivocally asserted his right to self-representation.10

     Finally, the statements of Mattersdorf, while they better

articulate a request for self-representation on behalf of Ibarra,


     10
          See id.

                                           -8-
also fail to establish a clear and unequivocal request for self-

representation.   As demonstrated by the excerpts above, Ibarra

failed to support counsel’s two statements on the issue of self-

representation and instead interrupted the discussion between the

court and counsel on this matter twice; the first time to criticize

the psychological evaluation and the second time to ask for an

immediate resolution of his case.      Under these circumstances, we

will not infer a waiver of the right to counsel.11

                               IV.

     For the foregoing reasons, Ibarra’s convictions are

AFFIRMED.




     11
      See id. (noting that courts     indulge every reasonable
presumption against waiver of the     right to counsel; in absence of
clear indication by the defendant     of his desire to waive right to
counsel, the court would not rely     on an ambiguous record to draw
such an inference).

                                -9-
