     Case: 08-31047     Document: 00511136764          Page: 1    Date Filed: 06/09/2010




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

                                                  FILED
                                                                            June 9, 2010

                                       No. 08-31047                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,


                                                   Plaintiff - Appellee

v.

JONATHAN LEE VERNIER,


                                                   Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:04-CR-20144


Before GARWOOD, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jonathan Lee Vernier appeals his conviction for a
federal carjacking in violation of 18 U.S.C. § 2119. The district court denied
Vernier’s request to represent himself at trial. After a review of the record, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                       I.
                                       A.
      In April 2003, Vernier escaped from a Colorado state prison where he was
serving a 12-year sentence for car theft. While hitch-hiking in Texas following
his escape, he hitched a ride with Ran Mesika, an Israeli citizen who was
traveling across the country selling jewelry from a van. After traveling with
Mesika for about four days, Vernier struck Mesika with a tire iron, then kept
him tied up in the van until he killed him and dumped his body at an unknown
location. Vernier continued toward Florida in the van he stole from Mesika,
using Mesika’s stolen debit card and identification.
      Israeli law enforcement agents notified the FBI of the likely kidnapping
of Mesika. The FBI tracked Vernier to Key West and apprehended him after a
dramatic chase and resistance in May 2003.        Mesika’s body was found in
Louisiana.
                                       B.
      Vernier was indicted for carjacking resulting in death in violation of 18
U.S.C. § 2119. He pleaded not guilty. Before trial, the Government requested
that Vernier be shackled during trial.      The Government’s motion included
assertions that Vernier had escaped from prison twice, that he was able to get
out of handcuffs, that he regularly possessed contraband and weapons in jail,
that he severely damaged a jail cell, that he resisted corrections officers’
attempts to search his cell, and that he inflicted injuries on himself and told
corrections officials that he wanted to kill himself and had tried to do so. The
Government also asserted that it intercepted a telephone call in which Vernier
told a third party that he intended to disrupt his trial and generate sound bites
for the news media.
      The district court held a hearing on the motion. Vernier waived his right
to be present at the hearing. At the hearing, the court heard testimony from a

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Deputy U.S. Marshal and an FBI agent that Vernier had taunted Mesika’s
family in court and had attempted to negotiate with them or to extort money
from them in exchange for telling them where to find Mesika’s body. The FBI
agent also testified that the factual recitations in the Government’s motion were
accurate.     The court concluded that, based on Vernier’s “fairly constant
contentious and defiant behavior” and the court’s concerns about the safety of
persons in the courtroom, he would be shackled at trial but that the restraints
would be hidden from the jury as much as possible.1
                                               C.
       On the first morning of trial, Vernier advised the court that he wanted to
represent himself at trial. The court told Vernier that it was concerned about
his history of disruptive behavior and that disruptions of the trial could result
in his removal from the courtroom. Vernier responded that reports of his bad
behavior were “rumors” and “a systematic plot” by jailers to discredit him.
       The court denied Vernier’s request to proceed pro se at trial. The court
cited “several factors” in denying the request. First, the court noted that Vernier
was asserting his right to self-representation on the morning of trial and had
never raised the issue before the court. Second, the court noted that Vernier had
not expressed any dissatisfaction with his appointed lawyer. Third, the court
noted that Vernier had waived his own appearance at the restraint hearing.
Finally, the court said its decision was “based on all the information” that was
entered into the record at the restraint hearing.2


       1
        The court ordered skirting for the prosecution and defense counsel’s tables at trial,
and ordered that Vernier be seated at defense counsel’s table before the jury entered to hide
the ankle shackles from view.
       2
          Vernier also addressed the court, stating that because of his limited legal knowledge
he did not know he needed to file a formal motion to assert his right to self-representation. The
district court replied, “Just one more reason not to let you represent yourself because of your
limited legal knowledge.” As Vernier attempted to continue, the district court stated that it
had made its ruling “on other issues.”

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      Vernier’s appointed lawyer objected on his behalf, arguing that Vernier’s
assertion of the right to represent himself was timely and was not interposed for
the purpose of delay because Vernier was ready to proceed with trial that day.
The Government declined to join the objection and referred the court to the
evidence presented in the motion to shackle Vernier.
      The Government also presented evidence regarding Vernier’s attack on a
prison guard and attempt to escape from jail just days prior to trial. The
Government’s witness testified that Vernier was armed with a shank during the
escape attempt and that Vernier said he had been planning the attempt for three
years. According to the witness, Vernier boasted that he was not going to go to
prison quietly but would “go out in a bloody confrontation” without regard to
whom he would have to kill.      The Government argued that Vernier’s real
intention in requesting to represent himself was to disrupt his trial and to try
to escape.   The court said that the evidence about Vernier’s recent escape
attempt added support to its decision not to allow self-representation and “that
there are other things besides timeliness” supporting the decision. The court
noted its “discretion to run an orderly courtroom.”
      The case proceeded to trial. The jury convicted Vernier as charged. The
court allowed Vernier to represent himself at the sentencing hearing, although
appointed counsel was present. The court denied a request for a downward
departure and sentenced Vernier to life in prison, with the term to run
consecutively to each of two other sentences and concurrently to a third
sentence. Vernier filed a timely pro se notice of appeal and is represented by
appointed appellate counsel.
                                       II.
      Vernier’s only contention on appeal is that he should have been allowed
to represent himself at trial. He argues that the court denied his motion on the
basis of untimeliness and that his request was timely under Chapman v. United

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States, 553 F.2d 886, 895 (5th Cir. 1977). He asserts that there were no other
valid grounds for denying his request. The Government contends that the
court’s denial of self-representation was not based on untimeliness but rather
was justified by ample evidence indicating that Vernier’s request was intended
to give him the chance to disrupt his trial and to attempt another escape.
       This court reviews claims concerning the right of self-representation de
novo. United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). The district
court’s factual findings to support its ruling are reviewed for clear error. Id. at
361.   An improper denial of the right of self-representation, if established,
requires reversal without further analysis for harmless error. United States v.
Majors, 328 F.3d 791, 794 (5th Cir. 2003).
       A competent criminal defendant has a Sixth Amendment right to
represent himself at trial if he knowingly chooses to do so and waives his right
to counsel. Jones, 421 F.3d at 363; see also 28 U.S.C. § 1654. The right to self-
representation, however, is not absolute. Indiana v. Edwards, 128 S. Ct. 2379,
2384 (2008). The right is forfeited by obstruction, disruptive conduct, or by
abusing the dignity of the courtroom. Id.; see also Faretta v. California, 422 U.S.
806, 834 n.46 (1975).    “Even at the trial level, therefore, the government’s
interest in ensuring the integrity and efficiency of the trial at times outweighs
the defendant’s interest in acting as his own lawyer.” Martinez v. Court of
Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000).
       Under the general principle announced by the Supreme Court in Faretta,
Edwards, and Martinez, the right of self-representation is limited by the trial
court’s responsibility to maintain order and safety and to prevent disruption and
delay. See United States v. Long, 597 F.3d 720, 726 (5th Cir. 2010) (upholding
denial of the right to self-representation where the defendant had been
disruptive in pretrial proceedings). We have noted in passing that a defendant’s
request to represent himself at trial may be rejected if it is intended to cause

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delay or some tactical advantage. Chapman, 553 F.2d at 895. Other circuits
hold that a trial court may deny the right of self-representation when evidence
indicates that the defendant intends to use the right to delay or disrupt the trial.
See, e.g., United States v. Smith, 413 F.3d 1253, 1280–81 (10th Cir. 2005)
(holding that the defendant’s insolent behavior showed that he was playing “cat
and mouse” with the court by requesting to represent himself); Buhl v. Cooksey,
233 F.3d 783, 797 (3d Cir. 2000) (noting that determining whether a pro se
defendant intends only disruption and delay is the kind of determination district
courts must make routinely, but holding that the court did not make a sufficient
inquiry); see also United States v. George, 56 F.3d 1078, 1084 (9th Cir. 1995)
(holding that the defendant’s pre-trial conduct, including two escapes, showed
that his request to represent himself was made for purposes of delay); see also
United States v. Akers, 215 F.3d 1089, 1097–99 (10th Cir. 2000) (approving the
denial of self-representation where evidence, including the defendant’s pre-trial
flight, supported the district court’s conclusion that the motion for self-
representation was intended to delay the proceedings).
      In this case, if the district court had based its denial of self-representation
solely on the timing of Vernier’s request, the court likely would have erred under
Chapman, where we held that a request for self-representation is timely if made
before the jury is selected. See Chapman, 553 F.2d at 887. The court arguably
also would have erred had it based its ruling only on Vernier’s limited legal
knowledge. See Faretta, 422 U.S. at 836 (indicating that a defendant’s technical
knowledge is not relevant to his right to control his defense).
      But neither reason was the sole basis for the district court’s refusal to
allow Vernier to represent himself. Instead, the district court based its ruling
primarily on the same evidence that convinced the court to shackle Vernier for
trial. That uncontested evidence indicated that Vernier posed a risk of violence
and escape, that he was defiant and troublesome, and that he boasted that he

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wanted to go out in a bloody confrontation, to disrupt his trial, and to make
news.
        Moreover, the Government presented additional testimony on the day of
trial that Vernier had attempted a violent escape from jail in the 48 hours
preceding the trial. The Government points out that Vernier’s escape attempts
or other disruptions could have delayed the trial and hindered the prosecution,
which relied on the testimony of witnesses from across the country and overseas.
The court considered this evidence as an additional reason to deny Vernier’s
request to represent himself. Thus, there was no clear error in the district
court’s findings.


                                        III.
        Based on our review of the evidence and the district court’s reasoning, we
conclude that the district court did not err when it found that Vernier’s escape
attempts and risk of violence posed a threat to the courtroom protocol of the
trial. Therefore, Vernier was not unconstitutionally denied his right to self-
representation.
        Accordingly, his conviction is AFFIRMED.




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