Appeal from a judgment of the United States District Court for the Southern District of New York, Stephen C. Robinson, Judge, convicting defendant of narcotics, racketeering, and firearm offenses after a trial at which defendant was represented by counsel following defendant's failure to pursue a motion to proceed pro se.
The opinion of the court was delivered by: Kearse, Circuit Judge:
Before: KEARSE, B.D. PARKER, and HALL, Circuit Judges.
5 Defendant Tuere Barnes (or "Barnes") appeals from a judgment entered in the United 6 States District Court for the Southern District of New York in 2010 following a jury trial before 7 Stephen C. Robinson, Judge, convicting him of seven offenses, to wit, racketeering and racketeering 8 conspiracy, in violation of 18 U.S.C. §§ 1962(c) and (d); conspiracy to distribute and possess with 9 intent to distribute narcotics, in violation of 21 U.S.C. § 846; kidnapping in aid of racketeering 10 activity, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; conspiracy to commit kidnapping in aid of 11 racketeering activity, in violation of 18 U.S.C. § 1959(a)(5); conspiracy to commit murder in aid of 12 racketeering activity, in violation of 18 U.S.C. § 1959(a)(5); and using and possessing a firearm in 13 relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Barnes was 14 sentenced principally to 300 months' imprisonment. On appeal, Barnes does not challenge the 15 sufficiency of the evidence to convict him or the sentence imposed. His sole contention is that his 16 Sixth Amendment right to represent himself at trial was violated by the district court's failure to grant 17 his request to proceed pro se. We conclude that Barnes abandoned his request to represent himself, 18 and we therefore affirm the judgment of conviction.
20 The present prosecution began in 2004 with a one-count indictment charging Barnes 21 and 13 others--including his brothers Yusuf Barnes, Dawud Barnes, and Khalid Barnes--with 1 participation in a drug conspiracy. In 2006, a 38-count superseding indictment charged Barnes, 2 Dawud, Khalid, and one other co-defendant, with, inter alia, participation in a racketeering enterprise 3 referred to as the "Barnes Brothers Organization," and with murder, kidnapping, several attempted 4 murders, and other violent crimes in aid of racketeering. Barnes was charged in 16 counts, including 5 the seven counts on which he was found guilty, described above. At all relevant times during the 6 proceedings in the district court, Barnes was represented by appointed counsel, Alexander E. 7 Eisemann.
8 A. Pretrial Proceedings in 2007-2008
9 In late 2007, the court became aware of tension in the relationship between Barnes and 10 Eisemann. At a November 6, 2007 pretrial conference called to explore the matter, Eisemann 11 informed the court that Barnes was not cooperating with him and was demanding to see such 12 documents as Eisemann's driver's license. (See Hearing Transcript, November 6, 2007 ("November 13 2007 Tr."), at 2-4; see also Hearing Transcript, January 30, 2008 ("January 2008 Tr."), at 23 (court 14 noting that it would not order production of attorneys' personal documentation such as driver's 15 licenses, which reveal their home addresses).)
16 Barnes, addressing the court directly, objected to the entire prosecution, stating that 17 he "ha[d] been violated, kidnapped and forced to participate in this court case as a member of a 18 corporation called United States." (November 2007 Tr. 5.) He added: 19 I do not legally understand and I do not consent to participating in this court 20 proceeding any longer. Nor do I consent to Mr. Eisemann representing me any 21 longer.
1 . It's not my intention to be rude. But I don't want to participate in 2 anything that's going on. I don't want to participate in him being my lawyer. 3 I know that I cannot be forced into any contract without me giving my consent. 4 I don't give my consent to it. 5 (Id. at 5-7 (emphases added).)
6 The court informed Barnes that "Mr. Eisemann is going to be your attorney through 7 this process. He can perhaps be more effective if you assist him. But if you don't, he's going to 8 represent you at this trial and we're going forward." (Id. at 7-8.) When the court subsequently asked 9 whether Barnes would meet with an appointed defense investigator or whether he "intend[ed] to hold 10 on to [his] position that [he did] not want to participate in any way in this matter," Barnes stated that 11 he "d[id] not wish to participate in any way." (Id. at 13.)
12 In December 2007, Eisemann informed the court that Barnes was not communicating 13 with him. (See Hearing Transcript, December 7, 2007 ("December 2007 Tr."), at 3.) The court noted 14 Eisemann's concerns, and it "strongly urge[d] and strongly suggest[ed] that [Barnes] cooperate fully 15 with his counsel"; but it stated that "[i]f . . . the defendant chooses that he no longer wishes to 16 cooperate with his attorney . . . that's his choice." (Id. at 4.)
17 At this conference Barnes, again addressing the court directly, asked "to see the arrest 18 warrant for my arrest or summons and my complaint." (Id. at 3.) When told there was no criminal 19 complaint in this case because the prosecution had been initiated by an indictment, Barnes asked "[i]s 20 it true that a criminal complaint, a complaint is the first process, the first step of a criminal 21 proceeding[.]" (Id. at 6.) The court advised Barnes that these were issues about which he could 22 consult with his attorney, but it informed him that "the way in which this proceeding has been brought 23 . . . is fully appropriate and according to law." (Id.)
1 At this point, Eisemann stated he believed there was "good reason to believe that Mr. 2 Barnes [wa]s not competent to assist in his defense"; Eisemann requested a competency examination, 3 even though stating that he "expect[ed] . . . that Mr. Barnes w[ould] probably refuse to meet with the 4 psychiatrist." (Id. at 7-8.) The district court stated its impression that Barnes was competent to assist 5 in the defense and was simply engaging in "an obstructionist tactic" but stated that it would order an 6 evaluation (id. at 11).
7 In the ensuing psychiatric evaluation, Barnes refused to cooperate. In a decision and 8 order dated January 25, 2008 ("January 25, 2008 Order"), the district court noted that the report 9 submitted by the psychiatrist assured the court, despite Barnes's refusal to cooperate, of Barnes's 10 competency. The court found Barnes to be "competent to stand trial and capable of assisting in his 11 defense." January 25, 2008 Order at 5. 12 On January 30, 2008, the court held another status conference, during which there was 13 extended discussion of Barnes's representation, in which Barnes objected to, inter alia, being 14 represented by Eisemann but also stated that he did not wish to proceed pro se.
15 THE COURT: . . . . Mr. Tuere Barnes, Mr. Eisemann is your counsel.
16 DEFENDANT TUERE BARNES: I object to it.
17 THE COURT: You want to proceed pro se in this matter?
18 DEFENDANT TUERE BARNES: I am myself. I can't represent 19 myself. I am who I am. He's not my counsel. He's being forced on me. 20 (January 2008 Tr. 5 (emphases added).) 21 Barnes also declined to have a different attorney appointed to represent him, and he 22 proceeded to object--as he had on previous occasions (see, e.g., November 2007 Tr. 5-8; December 23 2007 Tr. 6)--to the commencement and pursuit of the prosecution against him:
1 THE COURT: . . . . Let me ask you this, Mr. Tuere Barnes, is there 2 someone else that you wish to represent you in this matter?
3 DEFENDANT TUERE BARNES: I'm here because y'all kidnapped 4 me, this is why I'm in court. This is all your corporation, you and everybody 5 else that works here. I don't have nothing else to do with it. Why would I take 6 another one of your corporation employees? Why would I take them? I told 7 you here that I'm not consenting to nothing that's going on. .
9 . I need to see proof, I need to see jurisdiction why I'm in this 10 courtroom. . .
12 THE COURT: Mr. Barnes, let me tell you how we're going to operate 13 going forward. I have heard these issues and complaints from you before. I 14 tried in a previous hearing to explain to you the way in which you come under 15 the jurisdiction of this court. I fully understand and recognize that you don't 16 accept that. Nonetheless, you have been indicted by a grand jury and there is 17 an indictment against you. The way that this process works is that you can 18 hire an attorney, or if you are not able to or willing to, an attorney will be 19 appointed to represent you, or you proceed pro se, which you clearly have 20 indicated you do not wish to do.
21 . I would prefer that you have conversation with your attorney to 22 give him as much assistance as you can in his representation of you. However, 23 if you are unable . . . or unwilling to do that, that's fine. Mr. Eisemann will put 24 forth the best defense for you that he can.
26 DEFENDANT TUERE BARNES: I'm not finished.
27 THE COURT: No, you are finished.
28 DEFENDANT TUERE BARNES: No, I'm not finished.
29 THE COURT: You are finished.
30 DEFENDANT TUERE BARNES: You're going to make me be 31 finished?
1 THE COURT: Yes. I recognize Mr. Eisemann and I'm asking him to 2 speak. 3 (Counsel confers with his client)
4 MR. EISEMANN: Mr. Barnes has asked me to tell your Honor that I 5 don't represent him.
6 THE COURT: Okay. I understand that that's his statement to this 7 Court. As he's indicated to me, he does not wish to go forward pro se and 8 frankly I don't think I would have appointed him to represent himself pro se 9 after the requisite questioning that would need to be done. And I understand 10 that he does not think this court has jurisdiction over him. He thinks the 11 United States Government is a corporation and that you are a member of that 12 corporation and he sees a ...