                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        APR 25 2000
                   UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

             v.                                         No. 99-2006
                                                        No. 99-2179
 JOHN VINCENT MACKOVICH,

       Defendant-Appellant.




             APPEAL FROM UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                       (D.C. No. CR-98-343-LH)


Vicki Mandell-King, Assistant Federal Public Defender, (Michael G. Katz,
Federal Public Defender, with her on the brief), Denver, Colorado, for the
appellant.

Gregory J. Fouratt, Assistant United States Attorney (John J. Kelly, United States
Attorney, with him on the brief), Albuquerque, New Mexico, for the appellee.


Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.


BRISCOE, Circuit Judge.
      John Mackovich appeals his conviction and sentence for armed bank

robbery (18 U.S.C. §§ 2113(a) and (d)) and for using and carrying a firearm

during a crime of violence (18 U.S.C. § 924(c)). These convictions arose out of

Mackovich’s April 1998 armed robbery of the Valley Bank of Commerce in

Roswell, New Mexico. Law enforcement officials quickly apprehended

Mackovich and recovered the keys to the getaway vehicle, the money stolen from

the bank, and the disguise used to facilitate the crime. At the time of conviction,

Mackovich had two prior convictions for violent felonies. Applying what is

commonly known as the “Three Strikes” statute, the district court sentenced

Mackovich to life imprisonment. Mackovich contends on appeal that the district

court erroneously (1) determined that he was competent to stand trial; (2) denied

his request to fire his attorney and proceed pro se; and (3) rejected his argument

that one of his prior convictions did not qualify as a “strike” under 18 U.S.C.

§ 3559. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742 and affirm.

                                  I. Competency

      A.     Background

      The district court’s inquiry into Mackovich’s competence began in August

1998, when Mackovich’s counsel filed a “Motion To Determine Mental

Competency.” Record on Appeal (“ROA”), Vol. I, Doc. 20. The court granted


                                          2
the motion and appointed Dr. Kenneth Bull to conduct a psychiatric examination.

Dr. Bull determined that Mackovich was competent to stand trial, and submitted a

one-page report setting forth his conclusions in September 1998. Approximately

one month later, after Mackovich obtained a new lawyer, the government filed a

motion for a supplemental psychiatric evaluation. The principal basis for the

motion was that Mackovich’s counsel had “learned of new information” relevant

to Mackovich’s fitness to stand trial, including “psychiatric reports that were

generated during the pendency of [Mackovich’s] 1977 prosecution for armed

robbery.” ROA, Vol. I, Doc. 37 at 2   (¶ 6). The district court granted this motion

as well. Dr. Bull conducted a supplemental examination on November 8, 1998,

and submitted another report.   In this second report, Dr. Bull presented “a

different psychiatric diagnosis than that derived originally. It would appear that

Mr. Mackovich is not suffering primarily from a depressive disorder, but more

likely a schizo-affective disorder.” Supplemental Record on Appeal (“SROA”),

Vol. III, Doc. 50 at 2; see also id. (stating that Mackovich “could benefit from

anti-psychotic medications in addition to the anti-depressants he is currently on”).

Nonetheless, Dr. Bull explained that “the new information and diagnosis obtained

does not affect my judgment of Mr. Mackovich’s present mental competency to

stand trial.” Id.

      The court conducted an evidentiary hearing to explore Mackovich’s


                                           3
competence in November 1998. The first witness to testify at the hearing was Dr.

Bull. Dr. Bull stated that he interviewed Mackovich for 30 to 40 minutes in

August 1998, and that this examination led him to believe that Mackovich was

competent to stand trial.   Dr. Bull explained that he interviewed Mackovich for a

longer period of time during the supplemental examination in November 1998,

taking into account Mackovich’s “previous psychiatric records.”    Id. , Vol. II, at 6,

12-14. Dr. Bull confirmed that Mackovich was likely suffering from a schizo-

affective disorder, “sort of a cross between schizophrenia and manic depressive

illness.” Id. at 8. According to Dr. Bull, this diagnosis was “serious” because in

some individuals a schizo-affective disorder “renders them unable to manage their

own lives.” Id. at 8-9. In Dr. Bull’s opinion, Mackovich’s representation that he

previously served as a “jailhouse lawyer” indicated that Mackovich possessed

“knowledge of the legal process.”    Id. at 9, 16-17. Dr. Bull recommended

additional psychiatric treatment,   but affirmed his finding of competency based on

Mackovich’s “understand[ing of] the legal process and the charges against him.”

Id. at 11-12.

       The only other witness who testified at the hearing was Mackovich himself.

Responding to questions posed by his counsel, Mackovich stated that he believed

he would be acquitted at trial and his acquittal would trigger Armageddon.

Mackovich testified that he and his sister had been receiving “prophecies” from


                                           4
God, and discussed how a burglar had broken into his house and “shot at me and

my girlfriend and . . . my dog.”    Id. at 22-23. Mackovich also stated that

prosecutors in another case wrongly accused him of soliciting a bribe, but that he

was exonerated at trial according to God’s plan.     On cross-examination,

Mackovich stated that he had been helping his current attorney by “telling him

what’s going to be happening, and the prophecy.”      Id. at 31. Mackovich testified

that he had provided his attorney with information that permitted the attorney to

file a notice of alibi.   Mackovich stated that he believed he was charged with

bank robbery, although he did not remember the name of the bank.       Mackovich

likewise did not remember his prior convictions, and indicated that he was not a

“Three Strikes” candidate because he was innocent.      Mackovich explained that he

had falsely confessed to several bank robberies, including the Roswell bank

robbery, because he was being pressured by prosecutors and wanted to expose

government corruption.

       After receiving this testimony and considering further arguments from

counsel, the district court concluded that Mackovich was competent to stand trial.

The court reasoned that it

       has had the defendant examined twice, and on both occasions Dr.
       Bull, who is a highly qualified psychiatrist, has concluded that the
       defendant is competent to stand trial. That is, that he understands the
       nature and consequences of the proceeding against him and that he is
       capable of assisting properly in his defense. I find that those
       conclusions by Dr. Bull are correct by a preponderance of the

                                            5
       evidence, and therefore the defendant is competent . . . .

Id. at 46-47. Mackovich was “especially noisy” when the court delivered its oral

ruling, making “loud and inappropriate comments” while sitting at his counsel’s

table. Id. , Vol. I, Doc. 53, at 1.   1
                                          The court memorialized its ruling in a written

order, stating that “Mackovich is not presently suffering from a mental disease or

defect that impairs his ability to understand the nature and consequences of the

proceedings against him or that impairs his ability to assist properly in his

defense.” Id. Doc. 55.

       B.       Analysis

       The Constitutional principles governing competency determinations are

clearly established. “It is settled that trying an incompetent defendant violates

due process.”    Bryson v. Ward , 187 F.3d 1193, 1201 (10th Cir. 1999);        see also

United States v. Williams , 113 F.3d 1155, 1159 (10th Cir. 1997) (recognizing that

“the criminal prosecution of an accused person while legally incompetent offends

the Due Process Clause”) . “Requiring that a criminal defendant be competent has

a modest aim: It seeks to ensure that he has the capacity to understand the

proceedings and to assist counsel.”          Godinez v. Moran , 509 U.S. 389, 402 (1993)   .


       1
        Similar disruptions occurred at other times during the hearing. The
government acknowledged Mackovich’s outbursts in a motion in limine seeking
“an order admonishing the Defendant not to engage in inappropriate and
disruptive behavior during jury selection and trial . . . .” SROA, Vol. I, Doc. 53,
at 1.

                                                 6
Accordingly, the test for competency is whether the defendant “has sufficient

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

understanding – and whether he has a rational as well as factual understanding of

the proceedings against him.”      Drope v. Missouri , 420 U.S. 162, 171 (1975)

(quoting Dusky v. United States , 362 U.S. 402 (1960)); accord Miles v. Dorsey ,

61 F.3d 1459, 1472 (10th Cir. 1995).

       Our standard of review is equally clear. “Competency to stand trial is a

factual determination that can be set aside only if it is clearly erroneous.”         United

States v. Boigegrain , 155 F.3d 1181, 1189 (10th Cir. 1998),        cert. denied , 119 S.

Ct. 828 (1999). “A finding is ‘clearly erroneous’ when although there is evidence

to support it, the reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”          United States v.

Verduzco-Martinez , 186 F.3d 1208, 1211 (10th Cir. 1999) (quoting               United States

v. United States Gypsum Co. , 333 U.S. 364, 395 (1948)). The district court “need

not be correct,” but its finding “must be permissible in light of the evidence.”          Id.

(citing Bill’s Coal Co. v. Board of Pub. Util. of Springfield, Missouri          , 887 F.2d

242, 244 (10th Cir. 1989)). When assessing a defendant’s competence, “the

district court may rely on a number of factors, including medical opinion and the

court’s observation of the defendant’s comportment.”          Boigegrain , 155 F.3d at

1189 (citation omitted);   see also Williams , 113 F.3d at 1159 (indicating that a


                                              7
district court may review “evidence of defendant’s irrational behavior, his

demeanor at trial, and any prior medical opinion on competence”) (citation

omitted).

       The district court’s finding that Mackovich was competent to stand trial

was not clearly erroneous. First, in both his testimony and his written reports, Dr.

Bull concluded that Mackovich was able to understand the proceedings against

him. See , e.g. , SROA, Vol. III, Doc. 50 at 2 (setting forth Dr. Bull’s

“professional opinion that 1) Mr. Mackovich has a rational and factual

understanding of the charges against him and their consequences and 2) he has

sufficient present ability to consult with his lawyer with complete rational

understanding”). Dr. Bull was the only medical expert who assessed Mackovich’s

competence, and the district court’s reliance on his opinion is not clear error.     See

Verduzco-Martinez , 186 F.3d at 1212 (affirming a finding of competence based

on a doctor’s uncontradicted testimony);      Boigegrain , 155 F.3d at 1189-90

(affirming a finding of incompetence based largely on the testimony of one

psychiatrist). That much is evident from our decision in        Miles : There, we held

that it is not clearly erroneous for a district court to declare a defendant

competent by adopting the findings of one expert and discounting the contrary

findings of another. 61 F.3d at 1472-74. Second, while Mackovich admittedly

“rambled and expressed paranoia” at certain points during the competency


                                              8
hearing, see Appellant’s Opening Brief at 27, the district court was in a position

to determine whether Mackovich’s statements were genuine or feigned. After

observing Mackovich’s behavior during the course of the hearing, the district

court apparently accepted the prosecution’s argument that Mackovich was “a

desperate individual facing serious sentencing consequences” who had “nothing

to lose” by malingering. SROA, Vol. II, at 46. The hearing transcript also

reveals that Mackovich made statements indicating that he understood the

mechanics of the criminal process. Mackovich referred to “prosecutors,” “public

defenders,” and “the jury,”   implicitly acknowledged the difference between an

acquittal and a conviction,   and spoke of imprisonment and probation.   While these

statements by themselves would be insufficient to establish Mackovich’s

competence, see Williams , 113 F.3d at 1160 (“That defendant can recite the

charges against her, list witnesses, and use legal terminology are insufficient ‘for

proper assistance in the defense requires an understanding that is rational as well

as factual.’”) (citations and internal quotation marks omitted), in combination

with the district court’s firsthand observations of Mackovich and Dr. Bull’s

medical opinion they preclude our concluding the district court’s competency

finding was clearly erroneous.

       Mackovich’s remaining objections to the district court’s assessment of the

evidence are insufficient to establish reversible error. Mackovich emphasizes that


                                            9
Dr. Bull diagnosed him with a schizo-affective disorder and “recommended

psychiatric treatment and antipsychotic drugs.” Appellant’s Opening Brief at 27.

Mackovich’s description of Dr. Bull’s diagnosis is accurate, but this circuit has

long recognized that “[t]he presence of some degree of mental disorder in the

defendant does not necessarily mean that he is incompetent to . . . assist in his

own defense.” Wolf v. United States , 430 F.2d 443, 445 (10th Cir. 1970);    accord

Verduzco-Martinez , 186 F.3d at 1212; Miles , 61 F.3d at 1472. Mackovich also

notes that his counsel “expressed serious and concrete concerns about his

competency.” Appellant’s Opening Brief at 27. As we explained in       Bryson ,

“[d]efense counsel is often in the best position to determine whether a defendant’s

competency is questionable. Nonetheless, the concerns of counsel alone are

insufficient to establish doubt of a defendant’s competency.” 187 F.3d at 1201-02

(citations omitted).

      Mackovich next contends that several developments after the hearing

should have caused the district court to reevaluate his competence. For example,

after receiving permission to address the court on the first day of trial, Mackovich

made the following statement:

      This is the flag of the United States of America. Under the Federal
      Rules of Civil Procedure, Rule 38(a), the plaintiff’s claim of the
      pleading is in the Constitution of the United States of America, dated
      1789, Article of the Ninth, for a hearing sworn by oath of the office.
      Army regulations 840-10, Chapter 21AB, states the flag of the United
      States will be of red, white, and blue with a star for each state and

                                          10
      will be in the highest honored position over foreign flags and the
      president of the United States. Corporate flag of the fringe, by the
      law of the flag, the foreign flag of the fringe makes the jurisdiction
      foreign. Plaintiff is not an attorney of the law, plaintiff is a citizen
      and a party. How can a party plead to the matter by the subject in the
      court when the jurisdiction of venue, federal rules of court
      procedure, Rule 12(b)(3), has not been established or placed and
      erected plain under the flag with the fringe as to jurisdiction of the
      foreign power under the law of the flag? That the party is guilty
      until proven innocent, the Constitution of the United States rights are
      guaranteed to a citizen in the party innocent until proven guilty.
      Until the joinder of the federal rule of court procedure Rule 12(b) is
      established, no conversation can be understood.

ROA, Vol. III, at 72-73;   see also id. at 73 (indicating that the district court

responded by saying “I don’t know what the purpose of that is[,] but if it’s an

objection to proceeding, it’s overruled”). Later, believing that he and his attorney

were not adequately prepared, Mackovich opted to “stand mute” and refused to

testify in his own defense.

      These developments do not demonstrate that the district court erred by

refusing to halt the trial to reassess Mackovich’s competence. It is true that

“[e]ven when a defendant is competent at the commencement of his trial, a trial

court must always be alert to circumstances suggesting a change that would

render the accused unable to meet the standards of competence to stand trial.”

Drope , 420 U.S. at 181; accord Williams , 113 F.3d at 1160. Here, however, the

district court’s decision to proceed was not clearly erroneous for at least three

reasons. First, Mackovich’s “flag fringe” argument – though indisputably


                                            11
frivolous – was not indecipherable. Litigants in this circuit and elsewhere assert

with some frequency that a flag adorned with yellow fringe is “foreign” and thus

robs the trial court of jurisdiction.     See Wacker v. Crow , No. 99-3071, 1999 WL

525905, at *1 (10th Cir. July 1, 1999) (unpublished disposition) (deeming

“frivolous” the argument that the presence of a flag with yellow fringe precluded

jurisdiction and “effectively commuted the district court into a foreign power”);

Hancock v. Utah , No. 98-4139, 1999 WL 288251, at *1, *2, *3 (10th Cir. May 10,

1999) (unpublished disposition) (rejecting a plaintiff’s argument that state

officials “violated his right to due process by placing yellow fringe around the

American flag”); Murray v. Wyoming , No. 98-8095, 1999 WL 140517, at *1 (10th

Cir. Mar. 16, 1999) (unpublished disposition) (dismissing as “meritless” a

plaintiff’s argument that the district court and a state penitentiary lacked

jurisdiction to adjudicate his claims “on the ground that both institutions display a

flag with yellow fringe”).    2
                                  Second, the district court did, in fact, briefly revisit


       2
         See also Joyner v. Borough of Brooklyn , No. 98 CV 2579 (RJD), 1999
WL 294780, at *1, *2 (E.D.N.Y. Mar. 18, 1999) (holding that “[t]he yellow
fringe trim on the American flag has no effect on a court’s jurisdiction or a
defendant’s constitutional or statutory rights”);   Cass v. Richard Joshua Reynolds
Tobacco Co. , No. 1:97CV01236, 1998 WL 834856, at *2 (M.D.N.C. Oct. 1,
1998) (rejecting the “phantasmal” claim that flags adorned with fringe are
“instrumentalities of a foreign sovereign” and noting that “[f]ringed flagged
jurisprudence flourishes, though frequently found frivolous”);    United States v.
Warren , No. 91-CR-226, 1998 WL 26406, at *1-*2 (N.D.N.Y. Jan. 22, 1998)
(restating the plaintiff’s position that a “foreign yellow fringe flag” is illegal and
                                                                         (continued...)

                                               12
the issue of competency after Mackovich complained about the flag. The district

judge stated during trial that “earlier I had a competency hearing to decide on the

competency of the defendant, and I ruled that he was competent, and my opinion

has not changed.” ROA, Vol. III, at 196. Third, Mackovich made several

remarks before and during trial that suggested he understood the proceedings.

Prior to jury selection, for instance, Mackovich implicitly acknowledged that he

was charged with robbery when he requested permission to wear at trial the

clothes he had on at the time of his arrest: “I had new clothes that the FBI took

as evidence and apparently they’re not matching any description of the robber. I



       2
        (...continued)
concluding that “one could rightly call” such an argument “gibberish”);         Sadlier v.
Payne , 974 F. Supp. 1411, 1415-16 (D. Utah 1997) (repudiating a plaintiff’s
claim that “yellow fringe on the flag somehow converted the jurisdiction of the
state court into a ‘foreign state/power’”);     Schneider v. Schlaefer , 975 F. Supp.
1160, 1161-64 & n.1 (E.D. Wis. 1997) (noting a plaintiff’s attempt to invoke
“Army Regulation 840-10” and stating that “flag fringe” jargon is “regrettably
familiar to . . . federal courts around the country”);    McCann v. Greenway , 952 F.
Supp. 647, 649-51 (W.D. Mo. 1997) (discussing army regulations and holding
that “[e]ven if the Army or Navy do display United States flags surrounded by
yellow fringe, the presence of yellow fringe does not necessarily turn every such
flag into a flag of war”); United States v. Greenstreet , 912 F. Supp. 224, 229
(N.D. Tex. 1996) (recognizing that a number of litigants have “attempted to
persuade the judiciary that fringe on an American flag denotes a court of
admiralty” and thereby limits federal jurisdiction);     United States v. Schiefen , 926
F. Supp. 877, 884 (D.S.D. 1995) (concluding that “[f]ederal jurisdiction is
determined by statute, not by whether the flag flown is plain or fringed”);       Vella
v. McCammon , 671 F. Supp. 1128, 1129 (S.D. Tex. 1987) (rebuffing as “totally
frivolous” the argument that a court lacks jurisdiction because “[a] flag has
yellow fringes on it”).

                                            13
don’t see any reason why I shouldn’t be having these to wear, Your Honor.”         Id. ,

Vol. II, at 10.   3
                      Mackovich likewise demonstrated at least passing familiarity with

courtroom rules and procedures when he objected at trial to the government’s

motion to require him to wear the disguise used by the bank robber: “Your

Honor, there haven’t been any hair samples or fibers to match or testing. I would

object to this as being highly prejudicial, anyway.”      Id. , Vol. IV, at 442. The

district court’s repeated findings of competency are supported by the record and

are not clearly erroneous.

                                  II. Self-Representation

       A.         Background

       Mackovich’s claim that the district court denied his constitutional right to

self-representation revolves around the following facts. On October 30, 1998,

one month prior to the November 30, 1998, trial date, the district court issued an

order notifying the parties of the trial date. On November 13, 1998, the district

court found Mackovich competent to stand trial. Six days later, Mackovich’s



       3
         In addition, Mackovich asserted in open court prior to trial that he had
been a “licensed counselor,” a member of the Roswell Job Corps, and an
employee at a hospital associated with “psychology education services.” ROA,
Vol. II, at 13. Mackovich stated that he was “quite competent,” and opined that:
“It’s been my attorney’s ploy to find me incompetent, Your Honor. I have never
at any time given any psychiatrist or attorneys reason to believe I was
incompetent. And it’s just a matter that they are afraid of dealing with this case
and investigating it and doing the leg work.”  Id.

                                              14
attorney filed a motion seeking leave to withdraw as counsel, noting that he had

been “discharged” by Mackovich. SROA        , Vol. I, Doc. 57, at 1. Mackovich’s

attorney filed a motion for a continuance on November 23, 1998, stating (among

other things) that Mackovich “discharged Counsel on November 16, 1998 and is

attempting to represent himself. Apparently [Mackovich] has filed his own

motions, including an entry pro se and others that defense counsel has not seen or

had an opportunity to review. A rift currently exists between counsel and client.”

Id. , Doc. 61, at 1.

       In a written order dated November 24, 1998, the district court denied the

motion for a continuance, as well as the motion by Mackovich’s counsel to

withdraw. At the outset, the court observed that

       Defendant’s counsel makes reference to some motions authored by
       Mr. Mackovich himself including a motion to proceed      pro se,
       however, no motions other than those filed by counsel have been as
       yet filed with the Court. At the request of the Court, the Defendant’s
       counsel has been provided with copies of these “pro-se” motions.
       Although not formally before the Court, the issues raised in the
       Defendant’s pro se Motion for Substitution of Counsel and     pro se
       Motion for Continuance of Trial, are similar to those filed by his
       counsel . . . .

ROA, Vol. I, Doc. 56, at 2 (citation omitted). The court      found that “[t]he vague

reference by counsel to an effort by Mr. Mackovich to represent himself is not

sufficient to trigger an inquiry into whether the Defendant is attempting to

knowingly and voluntarily waive his right to counsel       .” Id. As an alternative


                                           15
basis for denying the motion, the court concluded that, even assuming

Mackovich’s request to proceed pro se could be characterized as unequivocal, it

was untimely and an effort to delay the trial:

       This case has been set for trial since June 8, 1998, and after the
       Court granted Defendant’s three previous motions for continuances,
       the current setting was noticed at the end of October of this year.
       The Defendant has been represented by Mr. McIntyre since
       September 29, 1998, and it was not until Mr. McIntyre failed to
       secure a plea agreement to the Defendant’s liking that Mr.
       Mackovich apparently began to seek to represent himself. This
       request, even if made today, would be untimely. The Defendant’s
       motion has not yet been filed and the trial is set to commence in five
       days. Clearly, this is merely an effort to again delay the trial, and is
       an abuse of the judicial process. The Court will not countenance
       such tactics. Notwithstanding the Court’s understanding that Mr.
       Mackovic[h] may wish to represent himself, the Court will not
       commence with a hearing on this issue as no formal request is
       currently before the Court and such a request would be untimely.

Id. at 3 (citations omitted).

       Mackovich next made mention of a desire to represent himself shortly

before the commencement of trial on November 30, 1998. Prior to jury selection,

Mackovich confirmed that he had attempted to file motions with the court. He

asserted that neither he nor his attorney was ready to try the case,   4
                                                                           and that it

would be unjust and a “farce” if he did not receive “at least a few weeks’ time to

allow [him] to prepare and gather witnesses.”        ROA, Vol. II, at 13. Mackovich



       4
        Although Mackovich represented to the court that his counsel was not
prepared for trial, his counsel stated on the record that he was prepared.

                                             16
renewed his “motion for a continuance to allow Mr. McIntyre a chance to

prepare,” and then indicated that he would have “a better chance” if he proceeded

pro se because “Mr. McIntyre doesn’t have one witness on my behalf.”             Id. at 13-

14. Mackovich closed by reiterating his request “for a continuance to represent

myself or to seek other counsel.”     Id. at 14. When the district court denied

Mackovich’s oral motion on the grounds stated previously in the November 24

order, Mackovich spoke again: “Your Honor, without being prepared for this trial

and without having effective assistance of counsel, I refuse to participate. I stand

mute, and I wish to have an order for my attorney to stand mute. This would just

be a mockery of justice. I don’t want him to participate in it; neither do I.”       Id. at

15.

       B.     Analysis

       A criminal defendant has a constitutional and a statutory right to self-

representation. The former is expressly recognized in         Faretta v. California , 422

U.S. 806, 834-36 (1975), while the latter derives from 28 U.S.C. § 1654. When

exercised, the right of self-representation “usually increases the likelihood of a

trial outcome unfavorable to the defendant.”        McKaskle v. Wiggins , 465 U.S. 168,

177 n.8 (1984). As a result, “its denial is not amenable to ‘harmless error’

analysis. The right is either respected or denied; its deprivation cannot be

harmless.” Id. ; accord United States v. Baker , 84 F.3d 1263, 1264 (10th          Cir.


                                             17
1996). To invoke the right, a defendant must meet several requirements. First,

the defendant must “clearly and unequivocally” assert his intention to represent

himself. United States v. Floyd , 81 F.3d 1517, 1527 (10th      Cir. 1996). Second,

the defendant must make this assertion in a timely fashion.      United States v.

McKinley , 58 F.3d 1475, 1480 (10th Cir. 1995). Third, the defendant must

“knowingly and intelligently” relinquish the benefits of representation by counsel.

Boigegrain , 155 F.3d at 1179. To ensure that the defendant’s waiver of counsel is

knowing and intelligent, the trial judge should “conduct a thorough and

comprehensive formal inquiry of the defendant on the record to demonstrate that

the defendant is aware of the nature of the charges, the range of allowable

punishments and possible defenses, and is fully informed of the risks of

proceeding pro se.”    United States v. Willie , 941 F.2d 1384, 1388 (10th   Cir.

1991); accord United States v. Padilla , 819 F.2d 952, 959 (10th     Cir. 1987).

       Mackovich contends on appeal that the district court misapplied these

decisions when it denied his request to proceed pro se.       When evaluating such a

claim, we review the district court’s finding of historical facts for clear error.

Boigegrain , 155 F.3d at 1185 . We review de novo whether a constitutional

violation actually occurred.   Id. ; cf. United States v. Taylor , 113 F.3d 1136, 1140

(10th Cir. 1997) (stating that “[w]e review de novo the question of whether a

waiver of counsel is voluntary, knowing, and intelligent” under the Sixth


                                            18
Amendment).

       We turn first to the requirement that a defendant “clearly and

unequivocally” assert his intention to represent himself. This requirement “is

necessary to protect against an inadvertent waiver of the right to counsel by a

defendant’s occasional musings on the benefits of self-representation.”       United

States v. Frazier-El , 204 F.3d 553, 558 (4th Cir. 2000) (internal quotations

omitted). The requirement “also prevents a defendant from taking advantage of

and manipulating the mutual exclusivity of the rights to counsel and self-

representation.”   Id. at 559; see United States v. Reddeck , 22 F.3d 1504, 1510

(10th Cir. 1994) (“We have repeatedly shown concern with the use of the right to

waive counsel as a ‘cat and mouse’ game with the courts.”);      United States v.

Allen , 895 F.2d 1577, 1578 (10th Cir. 1990) (quoting     United States v. McMann ,

386 F.2d 611, 618-19 (2d Cir. 1968), for the proposition that a defendant cannot

“by ruse or stratagem fraudulently seek to have the trial judge placed in a position

where, in moving along the business of the court, the judge appears to be

arbitrarily depriving the defendant of counsel”). “In ambiguous situations created

by a defendant’s vacillation or manipulation, we must ascribe a ‘constitutional

primacy’ to the right to counsel because this right serves both the individual and

collective good, as opposed to only the individual interests served by protecting

the right of self-representation.”   Frazier-El , 204 F.3d at 559 (quoting   United


                                            19
States v. Singleton , 107 F.3d 1091, 1102 (4th Cir. 1997));     see generally Martinez

v. Court of Appeal of Cal. , 120 S. Ct. 684, 691 (2000) (“Even at the trial level,

. . . 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.”).

       Here, the district court made two factual findings relevant to the “clear and

unequivocal” requirement.     See Hamilton v. Groose , 28 F.3d 859, 862 (8th Cir.

1994) (noting that the question of whether a defendant invoked his right to self-

representation in an unequivocal manner is a question of fact). First, it found that

the references to Mackovich’s interest in representing himself were “vague” and

insufficient “to trigger an inquiry into whether [Mackovich] [wa]s attempting to

knowingly and voluntarily waive his right to counsel.” ROA, Vol. I, Doc. 56 at 2.

Second, the district court found that, even assuming the references to self-

representation were clear, they were “merely an effort to again delay the trial, and

[were] an abuse of the judicial process.”      Id. at 3.

       Without passing on the district court’s finding that Mackovich’s requests

were too vague to trigger an inquiry   5
                                           , we conclude the evidence contained in the


       5
          Mackovich’s pro se motion for substitution of counsel clearly indicated
an interest in self-representation. However, that motion was never officially filed
and there is no indication in the record that it was available to the district court
when it issued its November 24, 1998 order. Even assuming,         arguendo , the
motion was available to and reviewed by the district court at some point prior to
trial, that does not alter our conclusion that the district court was correct in
                                                                         (continued...)

                                              20
record on appeal is more than adequate to support the district court’s finding that

Mackovich’s requests for self-representation were merely a tactic for delay. The

record in this case reveals that before Mackovich lodged his request for self-

representation, he (1) utilized appointed counsel for more than seven months,          (2)

appeared in court with his attorney on multiple occasions,       and (3) sought and

received three other continuances.      The record also reveals that Mackovich (4)

requested leave to represent himself only six to ten days before trial, (5) based his

request for self-representation in part on his counsel’s refusal to file a variety of

frivolous motions (e.g., “Motion for An Identity Hearing, Exculpatory Motions,

and Motion for Bail.”),   (6) coupled his request for self-representation made on the

first day of trial with yet another “motion for continuance to prepare,”     and (7)

threatened to “stand mute” and withhold his participation when the district court

denied his request.   These facts adequately support the district court’s finding that

Mackovich asserted his right to self-representation in an attempt to delay the trial

and abuse the judicial process.      Cf. Frazier-El , 204 F.3d at 560 (affirming district

court’s finding that defendant’s request for self-representation was merely a

manipulative effort to assert frivolous defenses that defense counsel was

unwilling to assert); United States v. George , 56 F.3d 1078, 1084 (9th Cir. 1995)


       5
        (...continued)
finding that Mackovich’s motive for requesting self-representation was to delay
the trial.

                                              21
(affirming a similar finding made by a district court in part because the defendant

“sought a continuance in conjunction with his motion to proceed pro se,”

previously requested additional continuances, and “could and should have

brought” his motion for self-representation “earlier than the eve of trial”);

Hamilton , 28 F.3d at 862 (concluding that a defendant’s “apparent motive” was

delay because he waited several months and then requested self-representation on

the ground that “he was not prepared for the trial and wanted a continuance to

ready his defense”); Robards v. Rees , 789 F.2d 379, 383-84 (6th Cir. 1986)

(concluding that granting the request for self-representation, made the day that the

trial began, “would have impermissibly delayed the commencement of the trial”).

The district court did not err in rejecting Mackovich’s request for self-

representation when it found the request was made to delay the trial. As

Mackovich’s requests were made for purposes of delay, they were not in fact

unequivocal requests for self-representation.

                                  III. Sentencing

      Mackovich also challenges the district court’s application of 18 U.S.C.

§ 3559(c), popularly known as the “Three Strikes” statute. Specifically,

Mackovich argues the district court erred in concluding his 1977 robbery

conviction qualified as a “serious violent felony” under § 3559(c), and that the

statute’s placement of the burden of proof on the defendant to establish by clear


                                          22
and convincing evidence that the conviction is a nonqualifying felony is

unconstitutional.

       The statute requires a trial court to “sentence to life in prison any person

who is convicted in federal court of a ‘serious violent felony’ if that person has

previously been convicted in state or federal court of two or more ‘serious violent

felonies.’” United States v. Gottlieb , 140 F.3d 865, 866 (10th Cir. 1998) (quoting

§ 3559(c)(1)). The offense of robbery is “generally considered a ‘serious violent

felony’ for purposes of the Three Strikes statute.”   Gottlieb , 140 F.3d at 866

(citing § 3559(c)(2)(F));   see also United States v. Oberle , 136 F.3d 1414, 1423

(10th Cir.) (“The term ‘serious violent felony’ generally includes robbery under

18 U.S.C. § 2113.”), cert. denied , 119 S. Ct. 197 (1998). However, not all serious

violent felonies count as “strikes.” The statute provides that a crime is a

“nonqualifying felony” if the defendant establishes, by clear and convincing

evidence, that

              (i) no firearm or other dangerous weapon was used in the
       offense and no threat of use of a firearm or other dangerous weapon
       was involved in the offense; and
              (ii) the offense did not result in death or serious bodily injury
       (as defined in section 1365) to any person.

18 U.S.C. § 3559(c)(3)(A);    accord United States v. Romero , 122 F.3d 1334, 1342

(10th Cir. 1997).

       At the sentencing hearing in the instant case, the government submitted


                                             23
judgments of conviction indicating that Mackovich previously committed two

other robberies in Arizona. These included a conviction for armed robbery in

1982 and a conviction for simple robbery in 1977.        The government also

submitted offense reports and a written confession relating to the 1977

conviction. Among other things, these documents demonstrated that Mackovich

used a firearm to rob a convenience store.        Mackovich unsuccessfully objected to

the admission of the documents, but did not offer additional proof to rebut them.

Rather, Mackovich maintained that under       Taylor v. United States , 495 U.S. 575

(1990), the district court was required to limit its consideration to the 1977

judgment of conviction. The district court ruled that      Taylor was “not on point,”

that the 1977 conviction was a “serious violent felony,” and that Mackovich failed

to show that the 1977 conviction was a “nonqualifying” offense. The court

accordingly imposed a sentence of life imprisonment.

       A brief discussion of the   Taylor decision is in order. The    Taylor Court was

called upon to determine the meaning of the word “burglary” under 18 U.S.C.

§ 924(e). 495 U.S. at 577. Section 924(e) provides a sentence enhancement for a

defendant who is convicted of unlawfully possessing a firearm “and who has three

prior convictions for specified types of offenses, including ‘burglary.’”      Id. at

578. After reviewing the alternatives, the Supreme Court concluded that “a

person has been convicted of burglary for purposes of a § 924(e) enhancement if


                                             24
he is convicted of any crime, regardless of its exact definition or label, having the

basic elements of unlawful or unprivileged entry into, or remaining in, a building

or structure, with intent to commit a crime.”     Id. at 599. The Court then

addressed “the problem of applying this conclusion to cases in which the state

statute under which a defendant is convicted varies from the generic definition of

‘burglary.’” Id. The Court held that § 924(e) “mandates a formal categorical

approach, looking only to the statutory definitions of the prior offenses, and not to

the particular facts underlying those convictions.”    Id. at 600. The Court’s logic

was threefold:

              First, the language of § 924(e) generally supports the inference
       that Congress intended the sentencing court to look only to the fact
       that the defendant had been convicted of crimes falling within certain
       categories, and not to the facts underlying the prior convictions. . . .

              Second, . . . the legislative history of the enhancement statute
       shows that Congress generally took a categorical approach to
       predicate offenses. . . . If Congress had meant to adopt an approach
       that would require the sentencing court to engage in an elaborate
       factfinding process regarding the defendant’s prior offenses, surely
       this would have been mentioned somewhere in the legislative history.

              Third, the practical difficulties and potential unfairness of a
       factual approach are daunting. In all cases where the Government
       alleges that the defendant’s actual conduct would fit the generic
       definition of burglary, the trial court would have to determine what
       that conduct was. . . . Also, in cases where the defendant pleaded
       guilty, there often is no record of the underlying facts. Even if the
       Government were able to prove those facts, if a guilty plea to a
       lesser, nonburglary offense was the result of a plea bargain, it would
       seem unfair to impose a sentence enhancement as if the defendant
       had pleaded guilty to burglary.

                                            25
Id. at 600-02.

       Mackovich’s Taylor -based argument proceeds along the following lines:

Mackovich “concedes that the government proved by a preponderance that his

1977 conviction of robbery constitutes a serious violent felony for purposes of the

Three Strikes statute.” Appellant’s Opening Brief at 10. However, according to

Mackovich the “ Taylor categorical approach should apply to the defendant’s

burden of proving that his offense is a nonqualifying offense.”         Id. at 11.

Mackovich contends that (1) the language of § 3559(c)(3)(A) does not expressly

indicate that Congress intended courts to “delve into facts,” and the “use of a

firearm or threat of such use are often considered elements of crimes,”         id. at 13;

(2) while the legislative history of § 3559(c)(3)(A) “reflects the requirement that

a defendant prove that his actions did not constitute the use or threat of use of a

firearm,” it “does not reveal how Congress intended such proof to be made,”           id. at

14; and (3) the use of a “factual approach” in this case would be unfair because

Mackovich pleaded guilty in 1977 to a simple robbery offense (instead of the

armed robbery offense with which he was originally charged) whose elements did

not include the use or threat of use of a dangerous weapon.         Id. at 14-15.

Mackovich further maintains that the age of his 1977 conviction “accentuates

th[e] practical difficulties and the potential unfairness of a factual approach.”       Id.

at 15. We review Mackovich’s claims de novo.           See Gottlieb , 140 F.3d at 868


                                              26
(“This court reviews de novo the district court’s imposition of a sentence

enhancement pursuant to the Three Strikes statute.”);   see also Oberle , 136 F.3d at

1423 (“We review questions of statutory construction de novo.”).

      The plain language of § 3559(c)(3)(A) forecloses Mackovich’s position.

As we explained in Romero , “[i]n interpreting a statute, we begin with the plain

language of the statute itself. If the terms of the statute are unambiguous, our

inquiry ends.” 122 F.3d at 1337 (citation omitted). Section 3559(c)(3)(A)

provides that a prior robbery does not qualify as a “strike” if the defendant clearly

and convincingly establishes that “no firearm or other dangerous weapon was

used in the offense,” “no threat of use of a firearm or other dangerous weapon

was involved in the offense,” and “the offense did not result in death or serious

bodily injury” to any person. This language unmistakably requires courts to look

to the specific facts underlying the prior offense, not to the elements of the statute

under which the defendant was convicted. In contrast, § 924(e) – the statute at

issue in Taylor – explicitly and implicitly directs courts to examine the elements

of a defendant’s previous crimes.    See 18 U.S.C. § 924(e)(2)(B)(i) (stating that

the term “violent felony” means an offense “punishable by imprisonment for a

term exceeding one year” that “has as an element the use, attempted use, or

threatened use of physical force against the person of another”); 18 U.S.C.

§ 924(e)(2)(B)(ii) (stating that the term “violent felony” likewise includes


                                           27
burglary, arson, extortion, the use of explosives, and other conduct presenting “a

serious potential risk of physical injury to another”). As a result,    Taylor ’s

categorical approach is inapplicable to the “nonqualification” inquiry under

§ 3559(c)(3)(A), and cannot provide a basis for reversal in this case.

       Mackovich’s final argument is that § 3559(c)(3)(A) is unconstitutional.

Citing Cooper v. Oklahoma , 517 U.S. 348 (1996) and          United States v. Gatewood ,

184 F.3d 550 (6th Cir. 1999),     vacated for rehearing en banc , No. 98-5138, 1999

WL 1482026, at *1 (6th Cir. Oct. 28, 1999), he contends that the “clear and

convincing” burden of proof imposed by § 3559(c)(3)(A) is inconsistent with the

Due Process Clause. Mackovich thus urges that “his burden was only to show . . .

by a preponderance of the evidence that his 1977 conviction was a nonqualifying

felony and could not be used as a third strike.” Appellant’s Opening Brief at 17.

According to Mackovich, he shouldered this burden by submitting as evidence

“the pertinent Arizona statute and the judgment and commitment order.”

Appellant’s Reply Brief at 1. Neither of these documents mentioned the use,

threat of use, or involvement of a dangerous weapon.

       We need not address Mackovich’s due process challenge to

§ 3559(c)(3)(A), because his argument fails on other grounds. As the district

court recognized, Mackovich did not muster “even a preponderance of the

evidence that he did not use a weapon” in the commission of the 1977 robbery.


                                              28
ROA, Vol. VI, at 578. Through the offense reports and other documents, the

government conclusively established that Mackovich used or threatened to use a

dangerous weapon. Consequently, even if we assume that the burden of proof

under § 3559(c)(3)(A) should be a preponderance, Mackovich’s proffered

evidence failed to satisfy that standard – a point Mackovich acknowledges in his

appellate brief.   See Appellant’s Reply Brief at 5 (“If this court finds that the

categorical approach of    Taylor does not apply to the defendant’s burden of

proving his prior serious violent felony is a nonqualifying felony, then of course,

Mackovich did not meet his burden.”). Indeed, Mackovich’s argument fails even

if we assume that the proper interpretation of § 3559(c)(3)(A) requires the

government to prove by a preponderance of the evidence that a dangerous weapon

was involved in a prior offense. For that reason, we affirm the district court

while reserving judgment on the constitutionality of the “clear and convincing

evidence” provision of § 3559(c)(3)(A).     See United States v. Smith , ___ F.3d

___, 2000 WL 345683 at *3 (10th Cir. 2000) (avoiding a challenge to the “clear

and convincing evidence” provision of § 3559(c)(3)(A) because, “[u]nder any

standard of proof, defendant [could not] establish that he [wa]s exempt from the

three strikes enhancement”);    United States v. Kaluna , 192 F.3d 1188, 1196 (9th

Cir. 1999) (same ); cf. Gottlieb , 140 F.3d at 873 n.11 (declining to decide whether

the “clear and convincing evidence” provision violates the Due Process Clause


                                            29
because the defendant “satisfied this heightened standard”).

      AFFIRMED.




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