UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4084

THERON JOHNNY MAXTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4120

THERON JOHNNY MAXTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4184

THERON JOHNNY MAXTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4431

THERON JOHNNY MAXTON,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-97-490)

Argued: May 6, 1999

Decided: June 29, 1999

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Parks Nolan Small, Federal Public Defender, Columbia,
South Carolina, for Appellant. Deborah Brereton Barbier, Assistant
United States Attorney, Columbia, South Carolina, for Appellee. ON
BRIEF: J. Rene Josey, United States Attorney, Columbia, South Car-
olina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A grand jury returned an eight count indictment against Theron
Johnny Maxton for sending threatening letters through the mail in
violation of 18 U.S.C. § 876 and making threats to assault or kill judi-
cial officers or their families in retaliation for the performance of their

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official duties in violation of 18 U.S.C. § 115. A jury convicted Max-
ton of all eight counts. Maxton asserts that his criminal conviction
should be vacated and the case remanded for a new trial because the
district court assertedly erred in (1) permitting Maxton to waive his
presence at trial, (2) accepting a waiver of Maxton's right to counsel
that was not knowing and voluntary, and (3) preventing Maxton from
presenting evidence at his competency hearing. Finding no reversible
error, we affirm.

I.

Maxton's principal contention is that the district court improperly
permitted him to waive his presence at trial. Maxton, who was incar-
cerated on state charges both at the time he committed the federal
offenses and at the time of trial, maintains that a defendant who is in
custody "does not have a right to give up his presence at trial, nor
does a judge have authority to grant a defendant's request not to be
present." Brief of Appellant at 17.

Recently, in United States v. Lawrence, 161 F.3d 250 (4th Cir.
1998), we considered and rejected precisely this claim. In Lawrence,
as here "after the time the case was called and the trial began, but
before the jury was empaneled, [the in-custody defendant] asked that
he be permitted to absent himself from the courtroom until the return
of the verdict." Id. at 254-55. Relying on Diaz v. United States, 223
U.S. 442 (1912), we held that because the defendant"was present at
the beginning of his trial and voluntarily absented himself, there is no
error in this case. Even if there be error, it is invited error brought on
at Lawrence's own request and, as such, is not reversible." Id. at 255.

Although at oral argument before us defense counsel asserted that
Lawrence was distinguishable from the case at hand, we believe the
cases are identical in all material respects. We note that in his reply
brief Maxton, himself, characterized Lawrence as "a similar case with
a similar issue" in which the district court also found that an "in-
custody defendant had a right to waive his presence at trial." Reply
Brief at 10.

Nor can Maxton prevail on his alternative argument that he did not
knowingly and voluntarily waive his right to be present at trial.

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Rather, the record reveals that the district court went to considerable
pains to make sure that Maxton's waiver was knowing and voluntary.
On January 29, when Maxton told the district court for the first time
that he wished to be absent from the trial, the court informed him that
it would advise against waiving this right and explained the difficul-
ties associated with not being present at trial, including the fact that
Maxton would not be able to object to evidence that the Government
introduced. The court refused to grant Maxton's request immediately
and urged him to rethink it.

Four days later on the day of trial, February 2, Maxton repeated
that he did not wish to be in the court room during the trial and that
he wanted to go back to his cell. The district court again advised Max-
ton against waiving his right to be present at trial. The court told Max-
ton that "I think it would be smart for you to be present for your trial"
and "you have a right to stay here." In the face of these repeated warn-
ings, Maxton insisted that he wished to waive his right to be present
at trial. We can only conclude that the waiver was knowing and vol-
untary.

II.

Maxton next maintains that he did not knowingly and voluntarily
waive his right to counsel. He grounds his argument on three bases:
(1) the inquiry conducted by the magistrate judge was assertedly inad-
equate to support a finding of knowing and voluntary waiver, (2) the
magistrate's decision that Maxton properly waived his right to coun-
sel was conditioned on the district court having a further discussion
with Maxton regarding standby counsel, which never took place; and
(3) questions as to his competency prevented the waiver from being
knowing and voluntary. None of these grounds are persuasive.

The colloquy between Maxton and the magistrate judge well com-
plied with the standards set forth in Faretta v. California, 422 U.S.
806 (1975), and United States v. Singleton, 107 F.3d 1091 (4th Cir.
1997). After Maxton clearly and unequivocally stated that he did not
"need no lawyer," the magistrate judge warned him of the difficulties
of proceeding without counsel. The magistrate judge thoroughly
informed Maxton of the requirement that at trial he conform to evi-
dentiary and procedural rules, and the principles of criminal law; the

                    4
magistrate also notified Maxton as to the maximum sentences that
could be imposed against him if he were found guilty on each count.
Finally, the magistrate judge advised Maxton that he would be better
off if defended by a trained lawyer and it was unwise to represent
himself. Nevertheless, Maxton insisted that he did not need a lawyer.
The magistrate judge did not err in concluding that Maxton's waiver
was knowing and voluntary.

Nor did the magistrate judge's decision depend upon further dis-
cussion with the district judge regarding standby counsel. After ques-
tioning Maxton, the magistrate judge clearly found that Maxton had
knowingly and voluntarily waived his right to counsel. It is true that
the judge did not dismiss Maxton's counsel at that time but stated
instead that he would leave that decision to the district judge. How-
ever, the magistrate judge did not in any way suggest that his finding
as to waiver was contingent upon the district judge's determination,
one way or the other, as to standby counsel.

Finally, Maxton's contention that at the time he had the waiver col-
loquy with the magistrate judge "there was a serious question as to his
competency" is not borne out by the record. At the time of his collo-
quy with the magistrate judge, Maxton had already been examined
and found competent by a psychiatrist at the Federal Correctional
Institute (FCI) in Butner, North Carolina, and his defense counsel had
stated that the defense would stipulate to the psychiatric report and
would not contest the findings, nor request a competency hearing.
Thus, Maxton's competency to stand trial had already been estab-
lished before the determination of his waiver of his right to counsel.

III.

A few weeks after Maxton's former counsel had stipulated to the
psychiatric report from FCI Butner finding him competent for trial
and had stated that the defense would not contest its findings or
request a competency hearing, Maxton, stating that he wished to pres-
ent an insanity defense, moved for a competency hearing and to sub-
poena Dr. Donald Morgan. Maxton did not assert in these motions
that he was incompetent to stand trial.

The district court provided Maxton with an opportunity to explain
why the FCI Butner evaluation should be disregarded and Dr. Morgan

                    5
subpoenaed. Maxton responded that the Butner evaluation was erro-
neous when it stated that certain personnel had talked with him and
in finding "nothing wrong with me." Maxton further claimed that he
heard "voices in his head," and that Dr. Morgan, who had examined
him in 1995 "would back [him] up." Again, Maxton did not assert that
Dr. Morgan would opine that Maxton was incompetent to stand trial.

On the basis of this evidence, the district court found Maxton com-
petent to stand trial and refused to subpoena Dr. Morgan. The court
did ask the prosecutor to ascertain that the personnel at FCI Butner
listed in the report had, in fact, evaluated Maxton; the personnel sub-
sequently certified that they had examined him on numerous occa-
sions and that their October 1997 report was "factually accurate." As
Maxton concedes, see Brief of Appellant at 37, we can reverse only
if we find the district court abused its discretion in refusing to sub-
poena Dr. Morgan. See United States v. Mason, 52 F.3d 1286 (4th
Cir. 1995). In view of the facts set forth above-- including Maxton's
failure to assert that Dr. Morgan would testify that Maxton was not
competent to stand trial -- we can hardly conclude that the district
court abused its discretion.

AFFIRMED

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