                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1599
                                    ___________

Randall Eugene Ferguson,               *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
James Bruton, Warden; Oak Park         *
Heights; Hubert H. Humphrey, III,      *      [PUBLISHED]
                                       *
            Appellees.                 *
                                  ___________

                          Submitted: May 23, 2000
                              Filed: July 10, 2000
                                  ___________

Before RICHARD S. ARNOLD, BOWMAN, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.

      Randall Ferguson appeals the district court’s1 dismissal with prejudice of his 28
U.S.C. § 2254 petition. For the reasons discussed below, we affirm.

      After discharging his public defender, Ferguson proceeded pro se with standby
counsel at trial. The jury found him guilty of second-degree assault, in violation of

      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Jonathan G.
Lebedoff, United States Magistrate Judge for the District of Minnesota.
Minn. Stat. § 609.222 (1995); third-degree assault, in violation of Minn. Stat.
§ 609.223 (1995); kidnaping, in violation of Minn. Stat. § 609.25 (1995); and terroristic
threats, in violation of Minn. Stat. § 609.713 (1995). Ferguson was sentenced to sixty-
eight months imprisonment. He raised two issues on appeal: his waiver of counsel was
invalid, and an element of the kidnaping offense--release of the victim in a safe place--
had not been submitted to the jury. The Minnesota Court of Appeals and the
Minnesota Supreme Court rejected Ferguson’s arguments.

       He then presented these arguments in his section 2254 petition before the district
court, which also rejected them, and he renews them in this appeal. We conclude that
the Minnesota courts’ adjudication of Ferguson’s claims was neither contrary to, nor
an unreasonable application of, clearly established federal law as determined by the
United States Supreme Court, and was not an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings. See McReynolds v.
Kemna, 208 F.3d 721, 722-23 (8th Cir. 2000) (standard of review).

       First, although a defendant who seeks to discharge his counsel and proceed pro
se “should be made aware of the dangers and disadvantages of self-representation, so
that the record will establish that %he knows what he is doing and his choice is made
with eyes open,&” see Faretta v. California, 422 U.S. 806, 835 (1975) (quoted source
omitted), “a specific warning on the record of the dangers and disadvantages of
self-representation is not an absolute necessity in every case if the record shows that
the defendant had this required knowledge from other sources,” Meyer v. Sargent, 854
F.2d 1110, 1114 (8th Cir. 1988). The entire record is reviewed “to determine whether
the accused was made sufficiently aware of his right to have counsel and of the possible
consequences of a decision to forgo the aid of counsel,” given “the particular facts and
circumstances surrounding that case, including the background, experience, and
conduct of the accused,” with “the fundamental fairness of the proceeding whose result
is being challenged” being “the ultimate focus of inquiry.” See id. (quoted sources and
internal marks omitted).

                                           -2-
       In cases such as this one, where the trial court did not adequately caution the
defendant about the perils of self-representation, we have looked to the defendant’s
past contacts with the criminal justice system and his performance at the proceeding
at which he represented himself. Applying this approach here, the record reveals that
Ferguson was active and articulate at trial, raising detailed objections and extensively
examining witnesses, and that he had the assistance of standby counsel. Also,
Ferguson had a criminal record and had displayed some savvy about the functioning of
the criminal justice system: when asked in a police interview why he had fled the scene
of the crime, he explained that “he’d be a three time loser and [would be] looking at life
in prison.” (Trial Tr. at 904.) We are therefore satisfied that his waiver of counsel was
valid. Cf. United States v. Day, 998 F.2d 622, 626-27 (8th Cir. 1993) (upholding
validity of waiver of counsel at sentencing where defendant’s criminal record showed
previous contact with criminal justice system sufficient to supply general knowledge
of dangers and disadvantages of self-representation, defendant’s conduct while
representing himself demonstrated his understanding of proceeding and its procedures,
and defendant had standby counsel), cert. denied, 511 U.S. 1130 (1994).

       Second, although the Sixth Amendment requires that the jury find the defendant
guilty beyond a reasonable doubt of every element of the crime charged, see Johns v.
Bowersox, 203 F.3d 538, 543 (8th Cir. 2000), a jury instruction that does not require
the jury to find an element of the offense is analyzed for harmless error, see id. at 543-
44; Neder v. United States, 527 U.S. 1, 15 (1999). In this case, we conclude that the
omission of the element of safe release was harmless beyond a reasonable doubt
because the non-release of the victim in a safe place was uncontested and supported by
overwhelming evidence, such that the jury would have reached the same verdict if
properly instructed. See Neder, 527 U.S. at 17. The only trial testimony on the matter
was that of the kidnaping victim and the police officer who interviewed Ferguson, and
both clearly show that the victim escaped, and hence was not released in a safe place.
Indeed, Ferguson did not contest this point at trial, and he personally approved the jury
instruction which omitted the element of safe release.

                                           -3-
      Accordingly, we affirm the judgment of the district court.

RICHARD S. ARNOLD, Circuit Judge, dissenting.

       I respectfully dissent. I don't believe that Mr. Ferguson wanted to represent
himself. He wanted a new lawyer, and one of the reasons given was conflict of
interest. See Gilbert v. Lockhart, 930 F.2d 1356 (8th Cir. 1991). In addition, it has
always been my understanding that a defendant who wishes to proceed pro se must be
given some kind of warning of the dangers of self representation. This was not done
here.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -4-
