In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2480

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CORNELL R. BYRD,

Defendant-Appellant.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-CR-110-S--John C. Shabaz, Chief Judge.


Argued January 10, 2000--Decided March 31, 2000



  Before FLAUM, MANION, and EVANS, Circuit Judges.

  EVANS, Circuit Judge. Cornell Byrd appeals his
conviction of assault on and interfering with
federal officers, in violation of 18 U.S.C. sec.
111. Byrd represented himself in the trial court.
He was convicted and sentenced to 3 years in
prison on top of a 10-year term he was already
serving.

  In 1998 Byrd was a 47-year-old federal prisoner
doing time at the Federal Correctional
Institution in Oxford, Wisconsin, when his
testimony was requested by the defense in a
federal trial in Chicago. Because no U.S.
marshals were available, Chicago police officer
Daniel Brannigan and ATF agent Daniel Young were
dispatched to Oxford to bring Byrd to Chicago.
This was not a great idea, for Byrd previously
had dealings (apparently unpleasant) with the two
officers, and he became agitated when he saw that
they would be transporting him to Chicago. Byrd,
who was shackled and restrained (he was
handcuffed, belly-chained, and fitted with leg
shackles), was profane in expressing his
displeasure as he was placed in the back seat of
a car. Brannigan said he leaned over Byrd to
fasten the seatbelt, but Byrd moved his knee and
elbow, hitting Brannigan in the arm. Brannigan
then held Byrd down by putting his arm across his
throat and punching him in the belly, at which
point, according to Brannigan, Byrd spit on him.
Byrd was charged with assault on Brannigan and
interference with both Brannigan and Young.

  At trial in the Western District of Wisconsin
in Madison, Byrd chose to represent himself.
Standby counsel was appointed but Byrd made it
very clear that he did not want help, even to the
point of only reluctantly taking a pen, legal
pad, and typing services from the lawyer.

  Prior to trial, Byrd was held in the local
Madison jail. Inmates in the jail have no direct
access to a law library. So, other than the
Federal Rules of Criminal Procedure, the Federal
Rules of Evidence, and a pattern jury instruction
on self-defense, Byrd did not have legal
materials. Following a one-day trial, Byrd was
convicted on both counts. He appealed, and,
apparently not overwhelmed with his own legal
acumen, he asked for the appointment of an
attorney to represent him. We honored his request
and appointed an attorney to prosecute the
appeal./1

  Byrd contends he was denied access to legal
materials. He says that because he was being held
in a county jail he did not have access to a law
library, and that deprived him of the ability to
adequately represent himself. The short answer to
his complaint is that when a person is offered
appointed counsel but chooses instead to
represent himself, he does not have a right to
access to a law library. See United States v.
Chapman, 954 F.2d 1352 (7th Cir. 1992). The rule
is that he has the right to legal help through
appointed counsel, and when he declines that
help, other alternative rights, like access to a
law library, do not spring up.

  But Byrd argues that his is a good case for
setting out standards for district courts to
employ when defendants, under Faretta v.
California, 422 U.S. 806 (1975), insist on
representing themselves. He urges us to look at
the standards suggested by the American Bar
Association and he offers three suggestions as to
what a district court should do in a situation
such as his. First, the court should attempt to
allow a defendant access to a law library.
Second, if the facility in which he is
incarcerated has no law library, the court should
transfer the defendant to a place where he would
have daily access to a library. Third, the court
should appoint standby counsel, either as
ordinary standby counsel or a hybrid form in
which counsel acts, in effect, as co-counsel with
the defendant. Byrd points to the ABA standard on
"standby counsel for pro se defendants" and urges
that it be adopted. See ABA Standards of Criminal
Justice (2d), Special Functions of the Trial
Judge, Standard 6-3.6 and 6-3.7.

  Byrd says his standby counsel was a "potted
plant" who did nothing. Counsel did not
independently provide any direction or materials,
and so Byrd did not know, for example, what a
lesser-included offense was and he did not know
that, arguably, a misdemeanor under 18 U.S.C.
sec. 1501 was appropriate as a lesser-included
offense to his charge.

  What is clear in his case, however, is that
Byrd did not want counsel’s help. The problem
posed by his insistence on representing himself
received a good deal of attention from the
magistrate judge handling pretrial matters. It
was a major topic at three hearings, during which
the judge learned that Byrd had represented
himself in other cases and on several habeas
petitions. Byrd’s rejection of appointed counsel
was so strong that at one point the magistrate
judge, with good cause, called it an "absolutist
view."

  This is not an unusual situation; we are aware
that managing a criminal trial in which a
defendant is representing himself is a chore and
that each case is different and may call for
different procedures. We do not think that
placing restrictions or specific requirements on
trial judges in these situations would be a good
idea. We prefer to trust the judge’s discretion
as to how best to handle the situation and how to
shape the contours of the obligations, if any,
that should be imposed on standby counsel. We
think district courts are already well aware of
the special problems defendants who represent
themselves face, even though many of those
problems are self-inflicted. We therefore decline
Byrd’s request to adopt rules and procedures in
this case. And our review of this record fails to
disclose any Sixth Amendment reasons for vacating
Byrd’s convictions.

  All of which brings us to another issue. Byrd
challenges an evidentiary ruling, and we review
that ruling for an abuse of discretion. United
States v. Hughes, 970 F.2d 227 (7th Cir. 1992).
Erroneous evidentiary rulings in a criminal case
constitute reversible error if they affect a
party’s substantial rights. Fed. R. Crim. P.
52(a); United States v. Peak, 856 F.2d 825 (7th
Cir. 1988); see also United States v. Lane, 474
U.S. 438 (1986). Exclusion of evidence which is
the only or the primary evidence in support of a
defense is deemed to have had a substantial
effect on the jury. Peak; United States v. Cerro,
775 F.2d 908 (7th Cir. 1985).

  At the final hearing prior to trial, held 3
days before the start of his trial, Byrd
requested leave to obtain and present to the jury
actual shackles and restraints such as the ones
used when he was transported to Chicago. Byrd
wanted to show that it would have been very
difficult for him to have done what he was
accused of doing while restrained as he was. As
Byrd said, in setting out what would become the
focal issue of the trial:

  Your Honor, the main, one of the main issues in
the Indictment is forcibly. I think the
relevancy, what’s relevant about it is that the
chains would show just how much force I could
use, if any at all. And the chains, the shackles,
the black box, the handcuff, they’re standard.
U.S. Marshals use them, everybody uses them;
they’re standard. It’s not a--The only thing
different you could tell is the serial number.

To which the judge replied, ending with an
inversion of an old saw:

  I believe that a description of the handcuffs
and the leg irons is reasonable for you to
provide, if indeed that is going to be your
testimony, without the necessity of having those
present because of the fact that I do believe
that if indeed they were to be provided it should
be those which were used at the time, so I would
suggest your description will be, although it
will be ten thousand words, I think the ten
thousand words is worth more than the attempt to
use leg irons and handcuffs which were not those
which were used on you.

Byrd contends that the ruling prevented him from
presenting his defense with the best relevant
evidence.

  That his defense was that the shackles made it
difficult, if not impossible, for him to have
attacked Brannigan is not open to question. It
was, in fact, the only real defense he had. In
his closing argument, Byrd told the jury that
upon hearing he was to be transported to Chicago
he was happy, thinking that he could see his
"grandkids." But then Young and Brannigan, whom
he describes as two prosecution witnesses in the
Chicago trial, arrived, and he said he knew right
then that something strange was going to happen.
He acknowledged that he was profane, but he said
that while shackled he could not have committed
the assault.

  The government understood perfectly well what
Byrd’s defense was and said in closing argument
that, even shackled, Byrd had a sufficient range
of motion in his arms to allow him to attack
Brannigan:
  If you’ve ever seen or if you can ever imagine
seeing a line of prisoners being walked along in
shackles, though you see that those prisoners are
restrained the thought still runs through your
mind that you could keep--that you should keep a
good distance or some distance away from those
prisoners, and that is because in case they lash
out you don’t want to be within proximity of
them. If they have that range of movement, they
have that range of movement you don’t want to be
anywhere where they could reach you, where they
could elbow you, where they could do anything to
you. If you see a line of prisoners you have a
natural tendency to stay some distance away from
them so you don’t get hurt.

There was much more in this vein, but this is
enough for our point. Had the jury seen the
shackles, they would not have been urged to
"imagine" all sorts of irrelevant and frightening
possibilities. Furthermore, it is unlikely that
the average juror has even seen a line of
shackled prisoners, except in movies like "The
Shawshank Redemption" or "Cool Hand Luke." In
fact, to avoid prejudicing defendants, district
judges take extraordinary efforts to shield
jurors from seeing shackled prisoners as they are
moved around courthouses. And although unusual
sights are not uncommon on State Street in
Madison, Wisconsin, it is unlikely that a line of
orange-clad, shackled prisoners would be spotted
there. Finally, Brannigan is a City of Chicago
police officer; how the average juror would feel
if he stumbled upon a line of prisoners bears
little relationship to how Brannigan should have
reacted to transporting one 47-year-old inmate.
The admission of actual shackles so the jurors
could feel their heft and restraining power would
have grounded the case in reality and left less
to the imagination.

  Before us, the government was at some loss to
give a good reason why it objected to the
admission of the shackles. Any claim that the
actual shackles used on Byrd could not be
identified loses force in the face of the basic
uniformity in shackles; a set virtually identical
to those used on Byrd could have been found
without any extraordinary effort. Also, the
government acknowledged that there was no
indication that Byrd made his request in order to
delay his trial. It is unlikely that delay would
have been required in any case. Byrd’s request
was made on Friday, March 19, and trial was not
set to begin until Monday, March 22, leaving
plenty of time for shackles to be found. If
shackles used by the Office of the United States
Marshal in Madison--and therefore presumably
readily available--were not the same as those
used by Young and Brannigan, either of the
officers could have been told to produce the kind
which, in fact, were used. Both were already
scheduled to be government witnesses at Byrd’s
trial. Ironically, the perceived inability to
obtain shackles forms a striking contrast to the
apparent ability, on short notice, to obtain the
presence of Byrd for the trial in Chicago. It is
hard to imagine an adequate reason for failing to
obtain shackles or for their exclusion at trial.

  Refusing to let Byrd show the shackles and
restraints to the jury was, we believe, an abuse
of discretion. The evidence was central to Byrd’s
defense and so affected his substantial rights.
We cannot say that the exclusion of such a
fundamental piece of evidence was harmless. Our
finding that the exclusion of this evidence was
an abuse of discretion is not affected by the
fact that Byrd was representing himself. But it
is hard to avoid thinking that his self-
representation may be the source of the problem.
Although we certainly do not think Byrd, without
question, would have been acquitted if the jury
had seen the shackles, we think his trial was not
fair in their absence under the peculiar facts of
this case. Cornell Byrd’s judgment of conviction,
therefore, is REVERSED and the case is REMANDED for
a new trial.


/1 On this score, Byrd got lucky. His appointed
appellate counsel turned out to be Raymond M.
Dall’Osto, a partner in the Milwaukee law firm of
Gimbel, Reilly, Guerin & Brown. Mr. Dall’Osto’s
resume includes a tour of duty as the chief
lawyer in the Milwaukee office of the Wisconsin
public defender.




   MANION, Circuit Judge, dissenting. While I
concur with the panel’s decision not to restrict
the trial judge’s discretion by inventing
affirmative duties for standby counsel, I
respectfully dissent from the panel’s decision to
remand this case for a new trial because I think
that the exclusion of the shackles was not an
abuse of discretion. Byrd bears a "heavy burden"
under the abuse of discretion standard, White v.
United States, 148 F.3d 787, 791 (7th Cir. 1998),
because he must convince the court that no
"reasonable person could agree with the district
court." United States v. Hook, 195 F.3d 299, 305
(7th Cir. 1999) (quoting Jackson v. Bunge Corp.,
40 F.3d 239, 246 (7th Cir. 1994)). And even if
the trial judge erred by excluding the shackles,
that error is not ground for a new trial unless
it "appears to the court inconsistent with
substantial justice," Fed. R. Civ. P. 61, which
means that there must be a "significant chance"
that the error "affected the outcome of the
trial." Hasham v. California State Bd. of
Equalization, 200 F.3d 1035, 1048 (7th Cir.
2000).

  The court should note the fact that Byrd walked
from the jail to the car and entered the car in
his shackles, and this fact enabled the jury to
reasonably infer (not just imagine) that Byrd had
a sufficient range of motion to strike Brannigan
with his knee and elbow while Brannigan was
leaning over Byrd to fasten his seatbelt.
Brannigan was in close proximity and in a
vulnerable position, giving Byrd an easy target
with his knee and elbow. But even if the shackles
prevented Byrd from actually striking the
officers, his threatening "display of physical
aggression" toward them was sufficient to
constitute an assault under 18 U.S.C. sec. 111.
United States v. Woody, 55 F.3d 1257, 1266 (7th
Cir. 1995). Moreover, Byrd directed more than
profanity at the officers, as he actually
threatened them with violence, which alone can
support a jury’s verdict under the statute. See
United States v. Mathis, 579 F.2d 415, 418 (7th
Cir. 1978). And finally, the jury also heard
testimony that Byrd spit in Brannigan’s eye,
which alone may also constitute a "forcible
assault" under the statute. See United States v.
Frizzi, 491 F.2d 1231, 1232 (1st Cir. 1974); see
also United States v. Masel, 563 F.2d 322, 323-24
(7th Cir. 1977). Since displaying the shackles
would not have assisted Byrd’s defense in any
material way against the evidence that he
verbally and physically threatened the officers
with violence, and even spit on one of them,
there is no "significant chance" that the
exclusion of the shackles affected the outcome of
the trial. Therefore, since a reasonable person
could certainly agree with the district court
that the admission of the shackles would have
been merely cumulative, not admitting them was
not an abuse of discretion. Thus, I would affirm.
