                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-11-2008

USA v. Awala
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5479




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                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     No: 05-5479

                          UNITED STATES OF AMERICA

                                           v.

                                  GBEKE AWALA,

                                         Appellant


                                     No: 06-2718

                          UNITED STATES OF AMERICA

                                           v.

                            GBEKE MICHAEL AWALA,

                                           Appellant

                   On Appeal from the United States District Court
                            for the District of Delaware
                               D.C. No. 04-cr-00090
                        District Judge: Hon. Kent A. Jordan

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 6, 2007

                Before: McKee, Chagares & Hardiman, Circuit Judges

                               (Filed: January 11, 2008)

                                      OPINION

McKee, Circuit Judge

      Gbeke Awala appeals his conviction for illegal re-entry following deportation from
the United States in violation of 8 U.S.C. §§ 1326(a), (b)(2). For the reasons that follow,

we will affirm the judgment of conviction.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not recite the factual or procedural background.

                                                  I.

       Awala relies in large part upon Illinois v. Allen, 397 U.S. 337 (1970) in arguing

that the district court erred in not allowing him to return to the courtroom after removing

him because of his outburst. The Court in Allen recognized three general responses to a

disruptive defendant. Awala stresses that the judge here did not adopt any of the

responses authorized under Allen, and he notes that the judge did not allow him the same

opportunity to return to the trial that Allen was afforded. Awala also stresses that his

attorney twice told the court that he (Awala) wished to return and promised to behave if

allowed to return. Nevertheless, the court persisted in forbidding Awala’s return. Awala

claims that this was a violation of his Fifth and Sixth Amendment rights.

       Although the court’s response here was not one of the responses discussed and

approved in Allen, the Court in Allen carefully avoided limiting a trial court’s options.

The Court did not hold that the Constitution only permitted the three responses to

disruptive behavior that it discussed. Rather, the Court merely held that the trial court’s

response to Allen’s conduct was not an abuse of discretion or a constitutional violation.

Id. at 347. Given the nature of Awala’s conduct, and the judge’s appropriate and well-

founded concern that Awala was attempting to manipulate the process, we cannot

                                              2
conclude that the trial court here abused its discretion in not allowing Awala to return to

the courtroom.

       Awala also cites Fed. R. Crim. P. 43. That Rule states that a defendant must be

present “at every trial stage including jury empanelment and the return of the verdict.”

However, the rule also provides that a defendant waives the right to be present “when the

court warns the defendant that it will remove the defendant from the courtroom for

disruptive behavior, but the defendant persists in conduct that justifies removal from the

courtroom.” Fed. R. Crim. P. 43(c)(1)(C). Awala claims he was not warned about

removal as required by the Rule. The record is to the contrary. The court told Awala:

“You’ve got to compose yourself or I will take you out of here,” and “Can you compose

yourself and do you want me to continue or do you want me to have you removed from

the courtroom?” Awala was also warned before the trial even began. He became

disruptive during a hearing on his motions, and he was warned then that he would be

removed and stand-by counsel would be appointed if he did not behave.

                                             II.

       Awala also claims that the court should have granted a mistrial after his outburst.

However, the trial judge concluded (with substantial justification), that Awala’s

distruptive behavior “was more likely than not calculated to cause a mistrial,”* and gave

an appropriate curative instruction.


   *
    After the defendant was removed from the courtroom, he told a Deputy Marhsall: “I
did what I had to do. I had to do it.” App. 383.
                                             3
       Awala argues that the court should have conducted a voir dire of the jurors to

ascertain if they could be objective after his outburst. However, he never requested any

such voir dire, and it was not required given the court’s instructions. Moreover, as we

have previously explained, allowing “courtroom outbursts and disruptions” to constitute

“justifications for retrials. . . would provide an easy device for defendants to provoke

mistrials whenever they choose to do so.” United States v. Bamberger, 456 F.2d 1119,

1128 (3d Cir. 1972).

                                             III.

       Awala argues that the district court erred in failing to allow counsel to argue the

corpus delicti rule in his closing argument and refusing to give the jury any instruction on

the rule. The court refused to give the proffered instruction because the court was not

persuaded that the proffered instruction was a correct statement of the law and because it

was submitted after jury instructions had already been submitted and approved by both

parties.

       By failing to raise this issue until after jury instructions had already been approved,

Awala has waived it. Moreover, even if it had been raised, the request should have been

rejected because the corpus delicti doctrine does not apply here. See Warszower v.

United States, 312 U.S. 342 (1941).

                                             IV

       Awala’s challenge to the weight and sufficiency of the evidence is an extension of

his corpus delicti argument. He claims that, absent his own statements, the only evidence

                                              4
of his alienage is his Nigerian birth certificate and Agent Gonzalez’s statement that there

was nothing in Awala’s file to prove he was an American citizen. However, his own

statement and Agent Gonzalez’s testimony were properly in evidence, and the evidence

introduced is sufficient to support the verdict. United States v. Hodge, 321 F.3d 429, 439

(3d Cir. 2003).

                                            V.

       Awala has filed a pro se motion arguing for the opportunity to file a pro se brief.

However, he continues to be represented by Mr. Stretton who is an exceptionally capable,

experienced and professional attorney. We reject Awala’s argument that Stretton is no

longer representing him because we have not granted Stretton leave to withdraw, and

Stretton has submitted a brief on behalf of Awala. Accordingly, Stretton is more than the

standby counsel Awala tries to portray him as. Inasmuch as Awala continues to be ably

represented, we will not consider Awala’s pro se brief. See L.A.R. 31.3.

                                        Conclusion

       For all the reasons set forth above, we will affirm the judgment of conviction.




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