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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-11194
                          ________________________

                     D.C. Docket No. 1:15-cr-20194-DMM-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee

                                      versus

EDMOND DANTES,
a.k.a. Arnold Lewine,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                              (September 17, 2018)

Before ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:

      After a jury trial, Edmond Dantes appeals his convictions for making false

statements in two applications for a United States passport. On appeal, Dantes
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argues that: (1) the evidence was not sufficient to support his conviction; (2) the

district court abused its discretion in admitting into evidence (a) judgments issued

by a Colombian family court, (b) handwritten notes of a government witness, and

(c) Dantes’s prior felony conviction; and (3) the district court erred in concluding

that Dantes voluntarily waived his right to counsel and was competent to represent

himself at trial and sentencing. After careful review, we affirm.

                          I.    SUMMARY OF PROCEEDINGS

        In March 2015, a federal grand jury indicted Edmond Dantes1 on two counts

of making false statements when applying for an American passport, in violation of

18 U.S.C. § 1542. In particular, the indictment charged that Dantes, who is a

native and citizen of the United States but a resident of Colombia, submitted

applications in February 2007 (the “2007 Application”) and February 2014 (the

“2014 Application”) for an American passport for a Colombian girl, Katerine.

        In those applications, Dantes made the following false statements under

penalty of perjury: (1) in the 2007 Application, Dantes stated that a woman named

Luz Fanny Munoz (“Fanny”) was Katerine’s mother (Count 1); and (2) in the 2014

Application, Dantes stated that he, Dantes, was Katerine’s father (Count 2). The

indictment alleged that Dantes knew both of these statements were false when he

made them.

        1
            Edmond Dantes was born Arnold Herbert Lewine. He adopted his current name in
1996.
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       The district court appointed the Federal Public Defender (“FPD”) to

represent Dantes. Dantes, however, filed a pro se motion to represent himself,

while retaining the FPD as standby counsel. On May 28, 2015, a magistrate judge

conducted a Faretta2 hearing to assess Dantes’s waiver of his right to counsel. The

next day, the magistrate judge recommended that Dantes’s motion to proceed pro

se be granted. The district court adopted the magistrate judge’s recommendation

and allowed Dantes to represent himself at trial.

       After a two-day trial, the jury returned guilty verdicts on both counts. The

district court sentenced Dantes to 24 months’ imprisonment as to Counts 1 and 2,

to be served concurrently, followed by 3 years’ supervised release as to Counts 1

and 2, to be served concurrently. Dantes has completed his prison term and is now

serving his supervised release.

                     II.     SUFFICIENCY OF THE EVIDENCE

       Dantes’s two convictions are for making false statements on applications for

an American passport, in violation of 18 U.S.C. § 1542. We start with the

sufficiency of the evidence.3



       2
          Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975).
       3
          We review a challenge to the sufficiency of the evidence de novo, viewing the evidence
in the light most favorable to the verdict and drawing all reasonable inferences and credibility
choices in the verdict’s favor. United States v. Godwin, 765 F.3d 1306, 1319 (11th Cir. 2014).
A guilty verdict cannot be overturned if any reasonable construction of the evidence would allow
the jury to find the defendant guilty beyond a reasonable doubt. Id. at 1319-20. In addition,
credibility determinations are left to the jury. United States v. Flores, 572 F.3d 1254, 1263 (11th
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       Section 1542 provides that it is unlawful to “willfully and knowingly make[]

any false statement in an application for passport with intent to induce or secure

the issuance of a passport under the authority of the United States, either for

[one’s] own use or the use of another.” 18 U.S.C. § 1542 (emphasis added). The

false statement need not be of a material fact. See United States v. Ramos, 725

F.2d 1322, 1323-24 (11th Cir. 1984). Rather, “any false statement is sufficient”

that is made with the intent to induce or secure a passport. Id. (quoting 18 U.S.C.

§ 1542). “The crime is complete when one makes a statement one knows is untrue

to procure a passport.” United States v. O’Bryant, 775 F.2d 1528, 1535 (11th Cir.

1985). “Good or bad motives are irrelevant.” Id.

       As detailed below, the evidence at trial supported a finding that Dantes

knowingly made false statements on his passport applications. We discuss the

evidence in the order it was introduced at trial.

A.     Government Witness Pam Cobb

       The government’s first witness, Pam Cobb, testified that she began working

at the American embassy in Bogota, Colombia in 2013. Her duties included

processing applications for American passports.

       Cobb discussed the first passport application that Dantes submitted on

Katerine’s behalf in February 2007. Although Cobb did not personally process the

Cir. 2009). This Court will not disturb a jury’s credibility determination unless the witness’s
testimony is “incredible as a matter of law.” Id. (internal quotations omitted).
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2007 Application, she reviewed the document and was able to glean the following

information: Dantes was listed as Katerine’s father; Luz Fanny Munoz was named

as Katerine’s mother; both Dantes and Fanny signed the application under penalty

of perjury; and a passport was issued to Katerine as a result of the application.

Because Katerine was a minor, that first passport expired after five years.

       Cobb testified that in 2014, she personally handled Dantes’s second passport

application for Katerine. On the 2014 Application, Dantes again identified himself

as Katerine’s father and identified Fanny as Katerine’s mother. 4

       The 2014 Application was missing a required authorization from Katerine’s

mother. Cobb therefore referred the application for further review. In the

subsequent investigation, Cobb asked Dantes about the missing permission from

Katerine’s mother. At that point, Dantes told Cobb that Fanny was not Katerine’s

true mother, even though Fanny was listed as the mother on Katerine’s birth

certificate. Rather, Dantes said, Katerine’s mother was “a person named Neraida,”

who was Fanny’s niece. 5 When Cobb investigated further, she discovered that

Katerine actually had three birth certificates. Only two of the three birth

certificates listed Dantes as Katerine’s father.



       4
         The 2014 Application actually named “Edmond Lewine” as Katerine’s father. As noted
above, Dantes was born Arnold Herbert Lewine and later changed his name to Edmond Dantes.
The alias Edmond Lewine appears to be a mix of his birth and adopted names.
       5
         At different points in the proceedings, Fanny was described as Neraida’s aunt and as
Katerine’s aunt.
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B.       Government Exhibits

         The government then introduced Katerine’s three birth certificates, along

with two judgments from a family law court in Colombia. 6 The government called

a translator witness, Maria Laura Abal, to verify the English translations of the

documents. The five documents illustrate a sequence of events.

         The first birth certificate, dated January 17, 2007, listed Katerine’s parents

as Dantes and Fanny.

         The first family court judgment, dated November 30, 2010, concluded that

Neraida and not Fanny was Katerine’s mother, stating in translation: “There is no

doubt that Ms. Luz Fany Munoz fraudulently claimed her alleged daughter, just as

there is no doubt that the biological mother of the minor involved in this case is

Ms. Neraida Munoz Acosta.”7 The 2010 judgment ordered that a corrected birth

certificate for Katerine be recorded.

         The second birth certificate—the one ordered by the first family court

judgment—was dated January 27, 2011, and listed Katerine’s parents as Dantes

and Neraida.




         6
             Dantes objected to the admission of the family court judgments both before and during
trial.
         7
         The family court judgments were heavily redacted so that very little was visible other
than the conclusions of the courts.
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      The second family court judgment, dated August 23, 2011, concluded that

Katerine was the “biological daughter of Efren Gomez Burbano.” The 2011

judgment ordered that a new corrected birth certificate be recorded for Katerine.

      The third birth certificate—the one ordered by the second family court

judgment—was dated October 10, 2011, and listed Katerine’s parents as Efren

Gomez Burbano (“Gomez”) and Neraida.

C.    Government Witness Special Agent Kent Solmonson

      The government’s next witness was Special Agent Kent Solmonson, from

the Miami field office of the Diplomatic Security Service (the “DSS”).

Solmonson—together with Antonio Zamudio, another DSS agent and the

government’s fourth trial witness—helped investigate Dantes’s passport

applications. Solmonson testified that in March 2015, he arrested Dantes for

passport fraud at Miami International Airport, where, with Zamudio, he

interviewed Dantes.

      Special Agent Solmonson provided the following testimony about the March

2015 interview. Dantes initially asked for counsel, but then agreed to speak with

the agents immediately without counsel present. Dantes acknowledged completing

and signing the 2007 Application. He said that he named Fanny as Katerine’s

mother on the 2007 Application because Fanny was listed as the mother on




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Katerine’s first birth certificate. Dantes admitted that information was not

accurate, however, because Katerine’s true mother was Neraida and not Fanny.

       However, Dantes said he believed “it was possible” that he was Katerine’s

true father, because he was in a romantic relationship with Neraida. Further,

Dantes believed the identity of Katerine’s mother was not material to the passport

application because Katerine’s eligibility for an American passport flowed from

him.

       Dantes acknowledged that on the 2014 Application, he listed Fanny as

Katerine’s mother while knowing that was not true, just as he did on the 2007

Application. Dantes also acknowledged listing himself as Katerine’s father on the

2014 Application. At that point, Solmonson and Zamudio presented Dantes with

the third birth certificate, which said that Katerine’s parents were Neraida and

Gomez. Dantes responded that he “knew there were other birth certificates out

there,” but they did not matter because the named father, Gomez, “was a drug

dealer, wasn’t present, he didn’t even know that the child existed.” Furthermore,

said Dantes, the Colombian court system was corrupt. Dantes said he believed he

was Katerine’s father, regardless of who the biological father was.

       Based on the March 2015 interview, Special Agent Solmonson testified to

his belief that Dantes knew when he completed the 2014 Application that he was




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not Katerine’s father and knew when he completed the 2007 application that Fanny

was not Katerine’s mother.

D.    Government Witness Agent Antonio Zamudio

      The government’s last witness was Agent Antonio Zamudio, from the

Bogota field office of the DSS. Zamudio testified that he assisted in the

investigation of Dantes’s passport applications. As part of that investigation, in

September 2014, Zamudio visited Dantes at home in Colombia and interviewed

Dantes under a tree outside his apartment complex. At that interview, Dantes said

that when he completed the 2007 Application, he knew that Fanny was not

Katerine’s mother, but he did not know that he was not Katerine’s father.

However, according to Zamudio, Dantes said that he knew both statements about

Katerine’s parentage were false when he completed the 2014 Application.

      Zamudio then testified that in March 2015, a few months after the interview

under the tree, he received a phone call from Dantes. Dantes was being held in

administrative detention at a Colombian immigration center, because a warrant for

his arrest—for passport fraud—had been issued in the United States. Upon

receiving this phone call, Zamudio traveled to the immigration center,

rendezvoused with Dantes, and accompanied Dantes on a flight to Miami

International Airport. When they arrived, Dantes was arrested by Special Agent

Solmonson and was interviewed by Solmonson and Zamudio, as described above.

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      Zamudio testified about that March 2015 interview in Miami International

Airport. According to Zamudio, Dantes admitted knowing that Fanny was not

Katerine’s mother when he completed the 2007 Application, and admitted knowing

that Fanny was not Katerine’s mother and that he was not Katerine’s father when

he completed the 2014 Application.

      Dantes cross-examined Zamudio. Dantes’s first question was: “You are a

liar; is that correct?” Zamudio said it was not correct. Among other things, Dantes

then questioned Zamudio about the fact that Zamudio did not make an audio or

video recording of the September 2014 interview under the tree at Dantes’s home.

      On redirect, the government sought to introduce handwritten notes that

Zamudio made during the September 2014 interview. Over Dantes’s objection, the

district court admitted a redacted version of Zamudio’s notes into evidence and

allowed Zamudio to read from his notes during testimony. In substance, the notes

corroborated Zamudio’s testimony about the 2014 interview.

E.    Dantes’s Testimony

      After the government rested, Dantes moved for a judgment of acquittal,

which the district court denied. The next day, Dantes testified in his own defense

in narrative form. In sum, Dantes acknowledged making false statements on the

2007 and 2014 Applications, but argued that the false statements were justifiable or

immaterial.

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      Dantes began by acknowledging that he knowingly and falsely listed Fanny

as Katerine’s mother on the 2007 Application. Dantes stated: “[Y]es, I did put the

wrong name on the original passport application when my child was ten weeks

old. . . . I put the name of the aunt as the mother.” However, Dantes stressed that

even if it was a misstatement to list Fanny rather than Neraida as Katerine’s

mother, the misstatement was not material, because (1) Fanny and Neraida had the

same last name, and (2) neither Fanny nor Neraida was a United States citizen, so

the misrepresentation had no effect on the government’s decision to issue a

passport to Katerine.

      Separately, Dantes addressed his sworn statements on the passport

applications that he was Katerine’s father. Dantes discounted the validity of

official documents stating that Gomez was Katerine’s father. He said that Neraida

and Gomez plotted to extort money from him by arranging, through a “corrupt

child welfare agency that sells babies,” to get a Colombian court to declare that

Gomez was Katerine’s father. He testified that he never received notice of the

family court hearings. He attested that he was not aware of the third birth

certificate that listed Gomez as Katerine’s father.

      As to whether Gomez really was Katerine’s father, Dantes testified: “[A]ll I

know is who knows if our fathers are really our fathers?” Dantes averred that he

believed he was Katerine’s father, he did not believe in any Colombian court or

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agency that said otherwise, and he refused to have a DNA paternity test done.

Dantes stated that under Colombian law, a child’s “true father is the man who

loves and shows affection for the child and supports the child and all the child’s

material needs.”

      Dantes concluded his direct testimony by stating: “I spoke the truth, and dear

God, I don’t lie. . . . I don’t know how much longer I have to live, but I’m not

going to start a criminal career at 76.”

      On cross-examination, Dantes acknowledged again that he knew, when he

submitted the 2007 Application, that Fanny was not Katerine’s mother. Dantes

explained: “There was the biological mother and there was the mother who was

raising the baby. No, [Fanny] was not the biological mother, she was the child’s

aunt.” However, Dantes denied knowingly making a false statement about

Katerine’s father. He asserted that “I still believe Katerine is my child.” He also

denied ever admitting to Agent Zamudio or Special Agent Solmonson that he knew

he was not Katerine’s biological father.

      During its cross-examination, the government sought to impeach Dantes

with evidence of a 1991 conviction for child sexual abuse in Florida. The

government argued that Dantes had opened the door to this impeachment evidence

by asserting that he was “not going to start [his] criminal career at 76.” The district

court allowed the government to introduce the fact of Dantes’s prior conviction

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over Dantes’s objection, but cautioned the government not to discuss the substance

of the conviction. The government then asked Dantes if it was true that he had a

prior felony conviction, and Dantes admitted it was true.

F.    Analysis of Evidence

      The evidence described above was sufficient for the jury to conclude beyond

a reasonable doubt that Dantes knowingly made false statements on his passport

applications, as alleged in Counts 1 and 2.

      As to Count 1—knowingly and falsely stating that Fanny was Katerine’s

mother on the 2007 Application—the evidence of Dantes’s guilt was virtually

uncontested. The government introduced the 2007 Application, in which Dantes

attested that Fanny was Katerine’s mother. And the government introduced

evidence that Dantes knew this statement was false when he made it.

      Witnesses Cobb, Special Agent Solmonson, and Agent Zamudio all testified

that Dantes told them he knew Fanny was not Katerine’s mother when he

completed the 2007 Application. Dantes himself testified that he knew Fanny was

not Katerine’s mother when he completed the 2007 Application. Dantes may not

have believed his misstatement was material, but materiality is not an element of

the crime. Ramos, 725 F.2d at 1323-24. Rather, the crime was complete when

Dantes made a statement he knew was untrue to procure a passport for Katerine.




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O’Bryant, 775 F.2d at 1535. As such, the evidence was more than sufficient for

the jury to find Dantes guilty beyond a reasonable doubt of Count 1.

      As to Count 2—knowingly and falsely stating that Dantes was Katerine’s

father on the 2014 Application—the government established the fact of the

misstatement by introducing Katerine’s October 2011 birth certificate, which

stated that Gomez was Katerine’s father, and the 2014 Application, on which

Dantes attested he was Katerine’s father. There were no credible grounds on

which Dantes could contest this evidence. And while the evidence that Dantes

knew the misstatement was false when he made it was contested, it required the

jury to make credibility determinations.

      Special Agent Solmonson testified that when he and Agent Zamudio

confronted Dantes with the third birth certificate, Dantes said that he “knew there

were other birth certificates out there,” but that they did not matter because Gomez

“didn’t even know that the child existed” and the Colombian court system was

corrupt. Special Agent Solmonson further testified that Dantes said he believed he

was Katerine’s “true father,” regardless of who her biological father was.

Similarly, Agent Zamudio testified that Dantes said more than once—in the

September 2014 interview under the tree, and then in the March 2015 interview in

Miami International Airport—that Dantes knew when he completed the 2014

Application that he was not Katerine’s father.

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      Dantes’s own testimony reiterated some of these points. Dantes testified

that he did not respect any ruling as to Katerine’s paternity by a Colombian court

or agency, that he refused to have a DNA paternity test done, and that a child’s

“true father” is the man who loves, shows affection for, and supports the child. On

the other hand, Dantes denied ever admitting to that he knew he was not Katerine’s

father, and denied knowing about Katerine’s October 2011 birth certificate.

      Viewing all of this evidence in the light most favorable to the jury’s guilty

verdict, and drawing all credibility choices in the verdict’s favor, we conclude the

evidence was sufficient to support Dantes’s convictions. See Godwin, 765 F.3d at

1319. In particular, we recognize that the jury credited the government’s witnesses

rather than Dantes on the question of whether Dantes ever admitted knowing he

was not Katerine’s father. The jury was entitled to make that credibility

determination. Flores, 572 F.3d at 1263. Because the government witnesses’

testimony was not “incredible as a matter of law,” we do not disturb the jury’s

verdict. Id.

                        III.    EVIDENTIARY RULINGS

      Dantes next challenges the district court’s decisions to admit three pieces of

evidence: (1) the Colombian family court judgments; (2) Agent Zamudio’s




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recorded notes from the 2014 interview; and (3) Dantes’s prior felony conviction.8

We conclude that all of these issues lack merit or, at worst, constitute harmless

errors in light of the substantial evidence of Dantes’s guilt recounted above.

Accordingly, they warrant no further discussion.

       Dantes also argues that the district court (1) improperly allowed Agent

Zamudio to testify about his opinion as to Dantes’s guilt, and (2) improperly

allowed Special Agent Solmonson to testify that Dantes initially invoked his right

to counsel in the March 2015 interview. Dantes’s arguments are without merit.

First, Agent Zamudio did not offer his opinion as to Dantes’s guilt. Rather, he

testified about his personal participation in, and understanding of, the 2014

investigation into Dantes’s passport applications. Second, as to the brief right-to-

counsel remark, Dantes did not object at trial to this testimony and, in any case, he

has not shown the testimony affected his substantial rights.




       8
          We review a district court’s evidentiary rulings for clear abuse of discretion. United
States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). An abuse of discretion arises when the
district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of
law, or an improper application of law to fact. Id. If a defendant did not object to evidence at
trial, we review its admission only for plain error. United States v. Turner, 474 F.3d 1265, 1275
(11th Cir. 2007). Further, the harmless error standard applies to erroneous evidentiary rulings.
United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005). An evidentiary error is
harmless unless it had “a substantial influence on the outcome of the case” or “left grave doubt”
as to whether it affected the outcome of the case. Id.
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                            IV.     WAIVER OF COUNSEL

       Dantes’s final argument is that the district court did not conduct a sufficient

Faretta hearing and that his waiver of his right to counsel was not valid because he

was not competent to represent himself.9

       The issue of Dantes’s competency did not arise until the first sentencing

hearing on August 18, 2015. At that hearing, the district court sua sponte became

concerned with Dantes’s competency at that time and ordered that he undergo

psychological examination. In October 2015 and December 2015, two experts

evaluated Dantes and they ultimately prepared reports concluding that Dantes was

then suffering from mental disorders that affected his competency as to certain

matters. On February 29, 2016, the district court conducted a competency hearing

at which both experts testified. After hearing their testimony and the arguments of

counsel, the district court found that Dantes was competent both at the time of trial

and to proceed to sentencing.

A.     Applicable Law

       Encompassed within the Sixth Amendment’s guarantee of a right to the

assistance of counsel is a criminal defendant’s right to represent himself if he so

chooses. U.S. Const. amend. VI; Faretta, 422 U.S. at 818-19, 95 S. Ct. at 2532-33.


       9
         Whether a defendant validly waived his right to counsel ordinarily is a mixed question
of law and fact that we review de novo, with the government bearing the burden of proving that
the waiver was valid. United States v. Garey, 540 F.3d 1253, 1267 (11th Cir. 2008) (en banc).
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That right, however, is not absolute. Indiana v. Edwards, 554 U.S 164, 171, 128

S. Ct. 2379, 2384 (2008). The Supreme Court has held that where a defendant is

mentally competent enough to stand trial, but lacks the mental capacity to represent

himself, the court may refuse a request by the defendant to proceed pro se at trial.

See id. at 167, 177-78, 128 S. Ct. at 2381, 2387-88.

      A defendant is competent to stand trial if he: (1) “has a rational as well as

factual understanding of the proceedings against him”; and (2) “has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding.” Id. at 170, 128 S. Ct. at 2383 (internal quotations and emphasis

omitted). The Edwards Court explained, however, that this baseline level of

competency alone may be insufficient to demonstrate a defendant’s competence to

represent himself, “given the different capacities needed to proceed to trial without

counsel” as opposed to merely assisting counsel. Id. at 177, 128 S. Ct. at 2387.

Nevertheless, the Court also emphasized that “the trial judge . . . will often prove

best able to make more fine-tuned mental capacity decisions, tailored to the

individualized circumstances of a particular defendant.” Id.; see also id. at 177-78,

128 S. Ct. at 2387-88 (“[T]he Constitution permits judges to take realistic account

of the particular defendant’s mental capacities by asking whether a defendant who

seeks to conduct his own defense at trial is mentally competent to do so.”).




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      A defendant may exercise his right to represent himself by making a

“knowing and voluntary” waiver of his right to counsel. United States v. Stanley,

739 F.3d 633, 645 (11th Cir. 2014). The “ideal method” of ensuring a knowing

and voluntary waiver is with a pre-trial Faretta hearing, at which the defendant is

informed of the charges, basic trial procedures, and the hazards of

self-representation. Id. If the record establishes that the defendant “understood the

risks of self-representation and freely chose to face them,” his waiver may be valid.

Id.

      This Court has identified eight factors for consideration when determining

whether a criminal defendant executed a knowing and voluntary waiver of his right

to counsel: (1) the defendant’s age, educational background, and physical and

mental health; (2) the extent of the defendant’s contact with his lawyers prior to

trial; (3) the defendant’s knowledge of the charges against him, possible defenses,

and penalties; (4) the defendant’s understanding of rules of procedure, evidence,

and courtroom decorum; (5) the defendant’s experience in criminal trials;

(6) whether standby counsel was appointed, and the extent to which standby

counsel aided the defendant; (7) mistreatment or coercion of the defendant; and

(8) whether the defendant was trying to manipulate the events of trial. Id. at 645–

46 (citing Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065–67 (11th Cir. 1986)).




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B.    Analysis

      Considering the record as a whole, we conclude that the district court

conducted an appropriate Faretta hearing under the circumstances.

      First, the majority of the Fitzpatrick factors heavily weigh in favor of finding

a knowing and voluntary waiver by Dantes. Dantes, who was 75 years old at the

time of trial, had attended college and obtained a bachelor’s degree. Dantes had

significant contact with his appointed AFPD counsel before and during trial, and

understood the charges against him. Though Dantes admitted he was unfamiliar

with the Rules of Evidence and the Rules of Criminal Procedure, that is also true of

most pro se litigants, and Dantes’s request to have an AFPD as standby counsel

lessens the import of this factor. Furthermore, standby counsel actually assisted

Dantes in making evidentiary objections at trial. Dantes also had some prior

experience with criminal trials, having represented himself (albeit unsuccessfully)

in his 1991 proceeding, and there is no evidence to suggest that he was mistreated

or coerced or that he was trying to manipulate the events of the trial.

      Thus, the only potential issue with regard to Dantes’s waiver of counsel is

his appellate counsel’s contention on appeal that Dantes was not competent to

represent himself and the district court failed to discover that fact at the Faretta




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hearing.10 Importantly, though, at the time of the Faretta hearing, there were no

red flags that suggested Dantes was mentally incompetent to represent himself. Cf.

United States v. Cash, 47 F.3d 1083, 1086, 1089-90 (11th Cir. 1995) (finding

waiver of counsel invalid where defendant’s competency was raised before trial

and district court did not conduct a Faretta hearing). Indeed, Dantes’s FPD counsel

argued at the Faretta hearing that his motion to proceed pro se should be granted,

and later stated at the competency hearing that “had I felt that [Dantes] was

incompetent [at the Faretta hearing], it is certainly something that I would have

raised.” See United States v. Wingo, 789 F.3d 1226, 1238 (11th Cir. 2015) (noting

counsel’s failure to raise competency issue can be persuasive evidence that

competency is not in doubt).

       Nor was any express issue as to Dantes’s competency raised during the June

1-2, 2015, trial itself. Rather, the competency issue arose for the first time at the

August 18, 2015, sentencing hearing, where it was raised by the district court sua

sponte. See Stanley, 739 F.3d at 647. And even then, the district court explained

that it was concerned not about Dantes’s competence to stand trial back on June 1-

2, 2015, but rather his competence to be sentenced. Moreover, at the competency

hearing in February 2016, neither expert expressly opined about Dantes’s mental

       10
          We assume without deciding that de novo review applies to the question of whether the
district court correctly applied the law in determining that Dantes was competent to represent
himself, and we assume without deciding that we apply the clearly erroneous standard to the
district court’s factual findings in making that competency determination.
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state back at the time of trial in June 2015; their opinions were limited to Dantes’s

mental state at the time of their evaluations, which took place at least four months

later, first in October 2015 and then in December 2015.

      At the February 2016 competency hearing and after hearing the experts’

testimony and argument from both counsel and Dantes himself, the district court

found Dantes was competent to represent himself and to proceed with sentencing.

The district court noted that although Dantes’s argument at trial—that the terms

“father” and “mother” have multiple meanings—“didn’t carry the day” it was “a

rational argument.” The district court explained that Dantes understood the nature

of the charges, the role of the parties, and what was happening during the trial.

Although Dantes exhibited “certain grandiose views and views of persecution,”

those conditions did not “go to the basic facts of his understanding of the legal

process or the issues facing him during the trial.” Indeed, the district court

emphasized that Dantes “performed pretty admirably” at trial, noting: “he objected

to the introduction of evidence, he worked with the Standby Counsel to articulate

objections; he did a good job of that.” In addition, at the competency hearing,

Dantes himself maintained he was “totally competent.”

      In sum, the district court concluded:

             Based on my observations of Mr. Dantes during his trial,
             comparing that with my observations of Dantes during
             his first sentencing hearing, and through his many filings
             post trial, I find that he is—he was competent to stand
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              trial and to go forward to sentencing, although I do think
              he suffers from delusional thinking and might benefit
              from treatment with the Department of Corrections.

       In other words, after observing Dantes at trial and noting that he presented a

rational (if unsuccessful) defense, the district court made a factual finding that he

was competent to represent himself as of the time of trial, and we do not find clear

error in that ruling on this record.

       We likewise find no clear error in the district court’s determination that

Dantes was competent to proceed with sentencing. Notably, when the district

court asked standby counsel, who had assisted Dantes throughout the proceedings,

for his thoughts as to Dantes’s competency, counsel stated, “I think the Court

should find him to be competent and should proceed to sentencing.” Counsel

reasoned that “throughout the trial, [Dantes] has understood the facts and the

allegations” and “has been able to articulate his theory [of defense], [and] advance

it forcefully.”

       Additionally, though both experts stated that Dantes exhibited certain

delusional and disordered thinking, they also agreed that Dantes was “bright” and

had a factual understanding of the proceedings against him. Their concern

regarding Dantes’s competency was limited to his ability to rationally appreciate

and assist in the proceedings given his delusional thinking.




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       Ultimately, the district court found, based on its observations of Dantes

throughout the proceedings, that though Dantes’s preoccupation with certain

delusions about events in his past distracted him from focusing on relevant issues

at sentencing, it did not preclude him from understanding the proceedings or

assisting in his defense. The district court, having presided over Dantes’s trial and

having conducted the competency hearing, was better positioned than we are to

assess Dantes’s mental capacity to represent himself. See Edwards, 554 U.S. at

177, 128 S. Ct. at 2387. We decline to disturb the district court’s findings in that

regard on this record.

                                    VI. CONCLUSION

       For the foregoing reasons, we find no reversible error on this record.

Accordingly, we affirm Dantes’s convictions and sentences.11

       AFFIRMED.




       11
         The Court denies all pending motions, including counsel’s motion to withdraw, as
moot. Given this Court’s close and thorough review of the record in this case, the Court has
decided oral argument is unnecessary.
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