United States v. Leggett

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

12-3-1998

United States v. Leggett

Precedential or Non-Precedential:

Docket 96-7772

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Filed December 3, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7772

UNITED STATES OF AMERICA

v.

MICHAEL K. LEGGETT,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. Criminal Action No. 94-cr-00097

Argued May 18, 1998

Before: ROTH and MCKEE, Circuit Judges

O'NEILL,1 District Judge

(Opinion filed December 3, 1998)

David M. Barasch

United States Attorney

Middle District of Pennsylvania

_________________________________________________________________

1. Honorable Thomas N. O'Neill Jr., United States District Court Judge

for the Eastern District of Pennsylvania, sitting by designation.

Frederick E. Martin (Argued)

Assistant United States Attorney

Herman T. Schneebeli Federal

Building, Suite 308

240 West Third Street

P.O. Box 548

Williamsport, PA 17703-0548

Attorneys for Appellee

Mark R. Lippman, Esquire (Argued)

8070 La Jolla Shores Drive, #437

La Jolla, CA 92037

Attorney for Appellant

OPINION OF THE COURT

ROTH, Circuit Judge:

Michael K. Leggett appeals from a judgment of conviction

and sentence entered in the United States District Court for

the Middle District of Pennsylvania. He was convicted of

assaulting a prison official in violation of 18 U.S.C. S 111.

Leggett makes three claims on appeal: (1) the district court

erred in not ordering sua sponte a competency hearing

before the commencement of the trial, (2) the district court

failed to ensure that Leggett validly waived his right to

testify, and (3) the district court improperly concluded that

Leggett forfeited his right to counsel at sentencing when he

physically attacked his attorney. We find each of Leggett's

claims to be without merit and will therefore affirm the

judgment of the district court.

I.

In February 1994, Leggett, who was serving a prison term

for bank robbery and assault at a federal penitentiary in

Indiana, was transferred to the Allenwood Federal

Correctional Complex in White Deer, Pennsylvania. Upon

his arrival at Allenwood, Leggett resided in a single cell. On

April 19 of that year, Dr. Stephen Karten, Allenwood's chief

psychologist, recommended that Leggett remain in a single

2

cell due to his inability to live peacefully with another

inmate. However, due to an influx of new inmates, some

single-cell inmates had to be relocated to double cells. On

April 21, Leggett's name was taken off the list of inmates

eligible for single cells, and Leggett was required to move

his belongings to another cell in anticipation of being

assigned a cellmate.

Donn Troutman served as Leggett's unit manager at this

time and was responsible for Leggett's housing assignment.

When Leggett discovered that he was losing his single-cell

status, he went to Troutman's office to complain. Leggett

told Troutman that he had been waiting all day to speak to

him and, after Troutman stepped outside his office, Leggett

punched him in the face. Leggett attempted additional

blows which were deflected by Troutman. Leggett then

grabbed Troutman's necktie and tried to strangle him with

it. Eventually, Troutman, who was five inches taller and

fifty pounds heavier than Leggett, was able to subdue him

with the assistance of several prison guards. Troutman

suffered multiple cuts to his face as a result of the attack.

An assistant federal public defender, D. Toni Byrd, was

assigned to represent Leggett at his trial for the assault on

Troutman. However, due to disputes between Leggett and

Byrd concerning jury selection and delay of the trial,

Leggett sought to discharge Byrd and requested the

appointment of new counsel. On July 26, 1995, the district

court held a hearing at which Leggett and Byrd explained

the bases for their disagreements. After the hearing, the

district court denied Leggett's motion to dismiss his

counsel. Nevertheless, several days later, Byrd sought leave

to withdraw from the case, due mainly to threats of

physical harm.2 The district court allowed Byrd to withdraw

and, in her place, assigned G. Scott Gardner to represent

Leggett.

_________________________________________________________________

2. Byrd, who was several months' pregnant, referred to statements by

Leggett that beating up a pregnant woman would make him "look bad"

and that he hit a federal public defender who had been assigned to

represent him in an unrelated matter in Ohio. Supplemental Appendix at

10.

3

Gardner represented Leggett throughout the trial, which

began on November 3, 1995, and continued on November

7, 8 and 9. At one point during the trial (on November 8),

Gardner expressed concern to the district court that

Leggett, against the advice of counsel, wished to testify. The

district court expressly encouraged Leggett to heed

Gardner's advice. On the following day, at the close of

evidence, Leggett had not yet testified and the district court

asked Gardner at sidebar whether the defense had any

further evidence to present. Gardner indicated that the

defense had nothing further. On November 13, the jury

returned a verdict of guilty.

In the ensuing months, Leggett, both with the assistance

of Gardner and pro se, moved to set aside the verdict and

issued objections to the presentence report. The district

court denied the motions, overruled the objections, and set

sentencing for March 25, 1996. On March 25, Leggett

entered the courtroom in the company of two United States

Marshals. Upon seeing Gardner in the courtroom, Leggett

lunged at his attorney and punched him in the head,

knocking him to the ground. While Gardner lay, supine,

Leggett straddled him and began to choke, scratch and spit

on him. The Marshals and a probation officer restrained

Leggett and removed him from the courtroom. Gardner was

taken to a hospital by emergency medical personnel and

treated for cuts, scratches and bruises. The district court

then allowed Gardner to withdraw as counsel and

concluded that Leggett had forfeited his right to counsel for

the sentencing hearing.

In April 1996, Leggett moved for a competency hearing.

The district court granted this motion so that it could

determine whether Leggett was competent to represent

himself at sentencing. The district court appointed yet

another attorney, Thomas Thornton, to represent Leggett

solely at the competency hearing. In October 1996, the

district court conducted the competency hearing, at which

it heard testimony from various mental-health professionals

concerning Leggett's behavior. At the conclusion of the

hearing, the district court reaffirmed its decision that

Leggett had forfeited his right to counsel and concluded

that he was competent to represent himself at sentencing.

4

In November 1996, Leggett appeared for sentencing without

counsel. The district court imposed a sentence of 36

months' imprisonment to be served consecutively to the

other terms Leggett had previously received. This appeal

followed.

II.

On appeal, Leggett makes the following three claims: (1)

the district court erred in declining sua sponte to order a

competency hearing before the start of the trial, (2) the

district court improperly failed to make certain that Leggett

validly waived his right to testify during the trial, and (3)

the district court erroneously concluded that Leggett

forfeited his right to counsel at sentencing. The district

court had jurisdiction pursuant to 18 U.S.C. S 3231. We

have jurisdiction pursuant to 28 U.S.C. S 1291.

A. The Pre-Trial Competency Hearing

We will first consider Leggett's claim that the district

court erred in declining to conduct a competency hearing

before the trial began. Since we must decide whether the

district court properly applied the standard for determining

the necessity of a competency hearing, our review is

plenary. United States v. Renfroe, 825 F.2d 763, 766 (3d

Cir. 1987). We note that, if the proper legal standard has

been applied, factual findings regarding competency are

reviewed for clear error. United States v. Velasquez, 885

F.2d 1076, 1089 (3d Cir. 1989); Renfroe, 825 F.2d at 766

n.4.

Fundamental to an adversarial system of justice is the

precept that "a person whose mental condition is such that

[the person] lacks the capacity to understand the nature

and the object of the proceedings[,] . . . to consult with

counsel, and to assist in preparing [a] defense may not be

subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171

(1975). The conviction of a legally incompetent defendant

violates due process. Pate v. Robinson, 383 U.S. 375, 378

(1966). In keeping with this unwillingness to try

incompetents, we have a statutory directive providing that

a criminal defendant whose competency is in question may

5

be subjected to a competency hearing. 18 U.S.C. S 4241(a).3

If neither the defendant nor the government moves for such

a hearing, the trial court may do so on its own motion. Id.

To do so, however, the trial court must have "reasonable

cause" to believe that the defendant is "presently" suffering

from an impairment resulting in mental incompetency. Id.;

see also Renfroe, 825 F.2d at 766-77 (holding that court

must have "reasonable doubt" as to defendant's ability to

grasp proceedings to order a competency hearing); United

States v. Davis, 93 F.3d 1286, 1290 (6th Cir. 1996) (noting

that district court must have " `reasonable cause to believe'

the defendant [is] incompetent") (quoting 18 U.S.C.

S 4241(a)); United States v. George, 85 F.3d 1433, 1437 (9th

Cir. 1996) (stating that a finding of "reasonable cause"

dictates whether a court conducts a competency hearing);

United States v. Lebron, 76 F.3d 29, 32 (1st Cir.) (same),

cert. denied, 518 U.S. 1011 (1996); United States v. Nichols,

56 F.3d 403, 414 (2d Cir. 1995) (same); United States v.

Morgano, 39 F.3d 1358, 1375 (7th Cir. 1994) (affirming

district court's denial of motion for competency hearing

based on absence of reasonable cause to doubt defendant's

competency); United States v. Williams, 998 F.2d 258, 266

(5th Cir. 1993) (affirming district court's denial of motion

for psychiatric examination due to absence of reasonable

cause to doubt defendant's competency).

A defendant is competent to stand trial if (1) the

defendant has the " `present ability to consult with [defense

counsel] with a reasonable degree of rational

_________________________________________________________________

3. Section 4241 states in pertinent part:

At any time after the commencement of a prosecution for an offense

and prior to the sentencing of the defendant, the defendant or the

attorney for the Government may file a motion for a hearing to

determine the mental competency of the defendant. The court shall

grant the motion or shall order such a hearing on its own motion,

if there is reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect rendering

him

mentally incompetent to the extent that he is unable to understand

the nature and consequences of the proceedings against him or to

assist properly in his defense.

18 U.S.C. S 4241(a).

6

understanding' " and (2) the defendant has a " `rational as

well as factual understanding of the proceedings.' " Drope,

420 U.S. at 172 (quoting Dusky v. United States , 362 U.S.

402, 402 (1960)); Renfroe, 825 F.2d at 766-77; Lebron, 76

F.3d at 31; Nichols, 56 F.3d at 410; United States v.

Soldevila-Lopez, 17 F.3d 480, 489 (1st Cir. 1994). In

determining whether a defendant satisfies this two-prong

test, a court must consider a number of factors, including:

"evidence of a defendant's irrational behavior, [the

defendant's] demeanor at trial, and any prior medical

opinion on competence to stand trial." Drope, 420 U.S. at

180. However, due to the vicissitudes of all cases, a court

must be cognizant that "[t]here are . . . nofixed or

immutable signs which invariably indicate the need for [a

competency hearing]." Id. There is no predetermined

formula for making a finding of reasonable cause. A court

must simply look at the unique circumstances of the case

and decide whether the defendant (1) has the capacity to

assist in her or his own defense and (2) comprehends the

nature and possible consequences of a trial. If either prong

is not met, a court has reasonable cause to order a

competency hearing. We will now consider whether Leggett

satisfied these criteria.

Leggett argues that his inability to assist in his own

defense was evident from the July 26 pre-trial hearing at

which he sought the dismissal of Byrd, his then-trial

counsel. At that hearing, Byrd expressed her concern that

Leggett's recalcitrance impeded her ability to mount a

defense when she stated, "I do question whether he has an

ability to assist his counsel, which is [a] prong of the

competency evaluation." Nonetheless, Byrd emphasized that

she was not formally moving for a competency evaluation.

During the hearing, moreover, Leggett gave no indication

that he would be incapable of assisting in his defense.

Although he was at times obstreperous, he did demonstrate

an ability to serve his own interests before the court. Over

the course of the hearing, Leggett -- without the assistance

of counsel -- cross-examined two witnesses, one of whom

was Byrd. Furthermore, he made sure he preserved on the

record any court ruling he perceived to be in error. For

example, when the district court refused to appoint counsel

for the pre-trial hearing, Leggett responded, "I want to cite

7

that as error. I object to that." Leggett even feigned

ignorance of basic courtroom procedure in a thinly veiled

effort to support his contention that the district court erred

in not appointing counsel. When the district court asked

Leggett whether he understood that he could not interrupt

a witness who was trying to answer a question, Leggett

declared, "No, I don't understand that because I'm not a

lawyer. . . . And you told me I couldn't have no lawyer so

I'm doing the best I can." Based on Leggett's handling of the

hearing, the district court concluded, "[I]t seems to me from

what he said today, he's on top of this case extremely. And

I don't know how a client could be more assistive, if there's

such a word . . .. "

We agree with the district court's conclusion that Leggett

seemed more than capable of assisting in his own defense.

His exchanges with the district court manifested a working

knowledge not only of trial tactics but also of the

importance of underscoring potential errors on the record

as grounds for appeal. In similar cases, other courts of

appeals have interpreted a defendant's ability to participate

in court proceedings as a sign of competency. In United

States v. Sovie, 122 F.3d 122, 128 (2d Cir. 1997), a

defendant argued that a district court erred in denying a

motion for a competency examination because the

defendant allegedly suffered from a " `split personality.' "

The court of appeals for the Second Circuit rejected this

argument, noting that the defendant "took notes, conversed

with counsel, and reacted reasonably to the admission of

evidence." Id. These actions supported the Sovie court's

conclusion that the defendant was "a knowing participant

in his defense." 122 F.3d at 128.

In Williams, the court of appeals for the Fifth Circuit

confronted the same issue when a defendant appealed from

a district court's denial of a motion for a mental

examination to determine competency. 998 F.2d 264-67.

Although the trial record showed that the defendant tended

to become " `extremely agitated' " and incoherent, the

Williams court affirmed the district court's decision. Id. at

265-66. Despite the defendant's unruly behavior at trial,

the court of appeals concluded that he was "rational and

able to assist his attorney," id. at 266, based on the

8

following: (1) the defendant had "advised [counsel] to file

certain motions, including the motion for a mental

examination"; (2) a short period before moving for a mental

examination, the defendant "had been handling pro se a

custody case involving his son"; and (3) in connection with

the custody case, the defendant had "filed numerous

coherent briefs [in a] state court, challenging its jurisdiction

over him." Id. at 265.

Leggett appeared to be just as able to contribute to his

defense as the defendants in Sovie and Williams. His

untoward antics aside, he made a clear effort at the hearing

to present arguments and evidence favorable to his

position. There was no reason to believe that he would not

act with the same purpose of mind once the trial itself

began and he had the services of counsel at his disposal. In

fact, Leggett's desire to have Byrd discharged was at least

partially grounded in what he considered poor strategic

decisions on her part and her failure to get him copies of

various evidentiary documents.4 It would have indeed been

oxymoronic if the district court had ruled sua sponte that

the defendant could not aid in his defense because he had

too keen an interest in that defense. Leggett's reasons for

seeking Byrd's discharge stemmed from his relationship

with that particular lawyer and did not seem indicative of

a general incapacity to consult with any lawyer.

Accordingly, the district court allowed Byrd to withdraw

and appointed Gardner in her place. The district court

advisedly refrained from reading a competency issue into

the mere incompatibility of a defendant and one particular

lawyer. The clarity and zeal with which Leggett pursued

Byrd's discharge gave the district court no reasonable

cause to believe that he was unable to assist counsel in his

defense. See George, 85 F.3d at 1438 (affirming district

court's denial of defendant's motion for psychological

evaluation since defendant was " `lucid,' " " `articulate' " and

" `intelligen[t]' "); Morgano, 39 F.3d at 1374 (affirming

district court's denial of defendant's motion for competency

_________________________________________________________________

4. Leggett mainly disagreed with Byrd on matters relating to jury

selection and adjustment of the trial's start date. He also maintained

that she had not obtained copies of various memoranda such as reports

from Dr. Karten, the prison's chief psychologist.

9

hearing in case where, in defense counsel's judgment,

defendant "had been helpful and more cooperative than the

average criminal defendant in assisting in preparation for

trial").

We will next consider whether the district court had

reasonable cause, at the July 26 pretrial hearing, to believe

that Leggett did not have a rational and factual

understanding of the hearing and of the pending trial.5

Leggett points to portions of the hearing's transcript in

which he rants about his mental impairments as evidence

that he could not grasp the nature and consequences of the

proceedings. At several points, Leggett mentioned that he

has "brain damage" and suffers from "schizophrenia."6

Without even discussing the self-serving nature of these

comments, what precious little probative value they had

was undercut by Leggett's own admission that his

impairments did not affect his comprehension of legal

concepts, such as waiver:

[A]nyway, I knew exactly, you know, what it-- what it

is to waive a right. You know, this is not my first time

in court. You know, I'm not stupid. I'm [sic] may suffer

from a little brain damage, a little schizophrenia, but I

ain't never been stupid. I understand what waiving

_________________________________________________________________

5. We note, initially, that Byrd stated that she did not question

Leggett's

competency with regard to "understanding the nature of the charges,

what goes on in court [or] the function of the prosecution, the function

of defense and the function of the Court." While her statements alone are

not dispositive of the issue, they strongly bolster the conclusion that

Leggett fully understood his situation. See United States v. Morgano, 39

F.3d 1358, 1374 (7th Cir. 1994) (defense counsel's averment that

defendant had ability to understand and participate in proceedings

"casts grave doubt on the defendant's incompetency").

6. Both Leggett and the government make reference to the testimony of

several mental-health experts concerning Leggett's mental condition at

the time of his attack on Troutman at the prison. Such evidence,

however, is irrelevant for our purposes because it sheds little light on

Leggett's mental condition at the time of the pretrial hearing on July 26,

1995 -- over one year after the assault on Troutman. See United States

v. Davis, 93 F.3d 1286, 1290 (6th Cir. 1996) (defendant's assertion of

mental incapacity at time of offense does not "permit or require"

examination of competency for trial).

10

your rights is. You know, I understand what a knowing

and intelligent and knowing and voluntary waiver is.

Thus, Leggett's argument is betrayed by his own

articulation of an axiom generally observed by courts: i.e.,

" `[i]t does not follow that because a person is mentally ill

[that person] is not competent to stand trial.' " Davis, 93

F.3d at 1290 (quoting Newfield v. United States, 565 F.2d

203, 206 (2d Cir. 1977)); see also Nichols, 56 F.3d at 412

("It is well-established that some degree of mental illness

cannot be equated with incompetence to stand trial.")

(internal quotation marks and citation omitted); Williams,

998 F.2d at 266 (observing that certain mental disabilities,

such as "minor neurosis or slight retardation," may not

render a defendant incompetent to stand trial). If the

mental illness does not "deprive the defendant of the ability

. . . to understand the proceedings . . . rationally as well as

factually," Nichols, 56 F.3d at 412 (citation omitted), then

the illness is irrelevant for the purposes of determining

competency.

Although a trial court may consider a defendant's history

of mental illness, it must "properly focus[ ] its inquiry [on

the defendant's] mental state at the time of the

[proceedings]." Morgano, 39 F.2d at 1374 (citation omitted).

That is, the defendant must not only suffer from a mental

impairment but must also be "presently" unable to

understand the nature and consequences of the

proceedings. 18 U.S.C. S 4241(a). Nothing that Leggett said

or did during the July 26 hearing suggested that he lacked

the requisite understanding. A self-proclamation of mental

illness hardly qualifies as proof of incompetency, especially

when coupled with a textbook recitation of the necessary

elements of a legal waiver. Courts have considered behavior

far more extreme than Leggett's rants to be insufficient to

warrant a sua sponte competency hearing under section

4241.

The facts in Lebron strongly mirror those of the present

case. In Lebron, the defendant, like Leggett, had a lengthy

history of psychiatric disorders, and was diagnosed as a

possible schizophrenic. 76 F.3d at 30. At a change-of-plea

hearing, the defendant threw a pitcher of water at several

case investigators. Id. at 31. Neither side moved for a

11

competency hearing and, pursuant to a plea agreement, the

defendant was sentenced. Id. On appeal, the defendant

argued that the district court should have ordered a

competency hearing sua sponte due to his "irrational and

outrageous behavior in the courtroom." Id. at 32. In

affirming the district court's judgment of sentence and

rejecting the defendant's argument, the court of appeals for

the First Circuit expounded, "Such behavior may be

uncontrolled, manipulative, or even theatrical. It is not

determinative of competency. Agitated or violent courtroom

antics alone do not mandate a finding by the trial court of

reasonable cause." Id. (citing United States v. Marshall, 458

F.2d 446, 450 (2d Cir. 1972)); see also Nichols, 56 F.3d at

413 (affirming district court's finding that defendant's

unusual behavior -- i.e., getting down "on all fours" and

putting his head to the floor -- was " `all calculated

fakery' ").

Clearly, Leggett's declarations of mental illness were no

more generative of reasonable cause than was the

defendant's sudden paroxysm in Lebron. Just as we do not

want to encourage defendants to fabricate symptoms of

mental disorders (e.g., violent acts in court) to raise doubts

about their competency, we also do not want to require

" `district courts to order competency hearings sua sponte

in every case where a defendant has some history of

psychiatric treatment and, even vaguely, mentions the

problem.' " Lebron, 76 F.3d at 33 (quoting Hernandez-

Hernandez v. United States, 904 F.2d 758, 760 (1st Cir.

1990)). Leggett merely mentioned that he had been

diagnosed in the past as having psychiatric problems. Such

statements, standing alone, did not give the district court

reason to believe that Leggett did not grasp the nature and

consequences of the proceedings against him.

Based on this reasoning, we conclude that the district

court did not have reasonable cause to believe that Leggett

(1) was incapable of consulting with an attorney and

assisting in his defense or (2) did not understand the

nature and consequences of the proceedings against him.7

_________________________________________________________________

7. We note that, although the district court held a competency hearing

after the trial and determined that Leggett was competent to appear for

12

B. Right To Testify

We now turn to the issue of whether Leggett was denied

his right to testify at the trial. We exercise plenary review

over claims of constitutional violations, such as the denial

of the right to testify. United States v. Pennycooke, 65 F.3d

9, 10 (3d Cir. 1995).

The Supreme Court has held that the right to "testify on

one's own behalf at a criminal trial" is grounded in three

provisions of the Constitution.8 Rock v. Arkansas, 483 U.S.

44, 51 (1987); see also United States v. Van De Walker, 141

F.3d 1451, 1452 n.1 (11th Cir. 1998) (acknowledging that

right to testify is constitutional), cert. denied, No. 98-5615,

1998 WL 480721 (U.S. Oct. 5, 1998); Brown v. Artuz, 124

F.3d 73, 76 (2d Cir. 1997) (same), cert. denied, 118 S. Ct.

1077 (1998); Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.

1988) (same). First, the "Fourteenth Amendment's

guarantee that no one shall be deprived of liberty without

due process of law include[s] a right to be heard and to

offer testimony." Rock, 483 U.S. at 51; see also United

_________________________________________________________________

sentencing, that determination is in no way relevant to our analysis of

the district court's decision not to order a competency hearing prior to

the trial. The Supreme Court has noted that a defendant's competency

at one point of a proceeding does not necessarily mean that the

defendant has been competent throughout the proceeding. See Drope v.

Missouri, 420 U.S. 162, 181 (1975) ("Even 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.").

For this reason, the district court's posttrial competency determination

carries no weight with regard to our review of its decision not to order

an earlier competency hearing.

8. The right to testify is also protected by federal statute. Under

federal

law,

[i]n trial of all persons charged with the commission of offenses

against the United States and in all proceedings in courts martial

and courts of inquiry in any State, District, Possession or

Territory,

the person charged shall, at his own request, be a competent

witness. His failure to make such request shall not create any

presumption against him.

18 U.S.C. S 3481.

13

States ex rel. Wilcox v. Johnson, 555 F.2d 115, 118 (3d Cir.

1977) (right to testify "emanate[s] from the due process

requirements of the Fourteenth Amendment") (citation

omitted). Second, the right to testify also derives from the

Compulsory Process Clause of the Sixth Amendment,

"which grants a defendant the right to call `witnesses in his

favor.' " Rock, 483 U.S. at 52 (quoting Washington v. Texas,

388 U.S. 14, 17-19 (1967)). At times, "the most important

witness for the defense . . . is the defendant himself." Id.

Finally, the right to testify is protected by the Fifth

Amendment's guarantee against compelled testimony. Id.

That is, the privilege to refuse to testify is part and parcel

of the privilege to testify if one wishes to do so. Id. at 53.

The right is personal and can be waived only by the

defendant, not defense counsel. Pennycooke, 65 F.3d at 10;

Johnson, 555 F.2d at 118 (observing that right to testify

"can be waived only by the defendant and not by his

attorney") (internal quotation marks and citation omitted);

Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) ("This

right [to testify] can be waived only by the defendant, not by

his counsel."), petition for cert. filed, (U.S. Jul. 13, 1998)

(No. 98-5802); Brown, 124 F.3d at 77 ("[E]very circuit that

has considered this question has placed the defendant's

right to testify in the `personal rights' category -- i.e.,

waivable only by the defendant himself regardless of

tactical considerations.") (citations omitted); Ortega, 843

F.2d at 261 ("If a defendant insists on testifying, no matter

how unwise such a decision, the attorney must comply with

the request.") (citation omitted). If a defendant does waive

this right, the waiver must be knowing, voluntary and

intelligent. Pennycooke, 65 F.3d at 11; Emery, 139 F.3d at

198; Ortega, 843 F.2d at 261.

Leggett argues that the district court took no steps to

inquire whether he knowingly, voluntarily and intelligently

waived his right to testify. This argument fails to negotiate

a rather fundamental hurdle: i.e., the fact that the district

court had no duty to make such an inquiry. In Pennycooke,

we unambiguously stated that "a trial court has no duty to

explain to the defendant that he or she has a right to testify

or to verify that the defendant who is not testifying has

waived the right voluntarily." 65 F.3d at 11. This ruling

14

falls in complete agreement with those of the majority of

courts of appeals that have ruled on this issue. See, e.g.,

Van De Walker, 141 F.3d at 1452; Brown, 124 F.3d at 79;

Liegakos v. Cooke, 106 F.3d 1381, 1386 (7th Cir. 1997);

United States v. Ortiz, 82 F.3d 1066, 1071 (D.C. Cir. 1996);

United States v. McMeans, 927 F.2d 162, 163 (4th Cir.

1991) (per curiam); United States v. Edwards, 897 F.2d

445, 446-47 (9th Cir. 1990); Siciliano v. Vose, 834 F.2d 29,

30 (1st Cir. 1987); United States v. Bernloehr, 833 F.2d

749, 752 (8th Cir. 1987); United States v. Janoe, 720 F.2d

1156, 1161 (10th Cir. 1983).9

We decided in Pennycooke that a trial court not only has

no duty to make an inquiry but, as a general rule, should

not inquire as to the defendant's waiver of the right to

testify. We explained our reasoning as follows:

_________________________________________________________________

9. Leggett relies heavily on Ortega v. O'Leary, 843 F.2d 258, 263 (7th

Cir.

1988), in which the court of appeals for the Seventh Circuit stated that

"a trial court should carefully ascertain through a methodical inquiry

whether th[e] right [to testify] has been voluntarily and intelligently

[waived]." His reliance on this case is misplaced for three reasons.

First,

as noted supra, the overwhelming majority of courts of appeals have

decided that a trial court has no duty to make such an inquiry. Second,

the facts of Ortega place it within a narrow exception to the general rule

against a judicial-inquiry requirement since, in that case, the defendant

told the trial court that his attorney was contravening his desire to

testify and the trial court did not investigate the matter. 843 F.2d at

260. See United States v. Pennycooke, 65 F.3d 9, 12 (3d Cir. 1995)

(offering Ortega as example of an "exceptional" case in which trial court

should ensure that defendant's right to testify is protected). The facts

of

this case do not place it within the same narrow exception because

Leggett makes no claim that his attorney actively barred him from

testifying (we discuss this matter at length infra). Third, the court of

appeals for the Seventh Circuit, in both Ortega and subsequent opinions,

has embraced the belief that trial courts generally have no duty to

inquire about the defendant's decision to testify-- and has thereby

acknowledged that Ortega presents a narrow exception, not the rule. See,

e.g., Liegakos v. Cooke, 106 F.3d 1381, 1386 (7th Cir. 1997) (holding

that trial court need not ascertain whether defendant has validly waived

right to testify); United States v. Brimberry, 961 F.2d 1286, 1289-90 (7th

Cir. 1992) (same); Ortega, 843 F.2d at 261 ("It is true that courts have

no affirmative duty to determine whether a defendant's silence is the

result of a knowing and voluntary decision not to testify.") (citation

omitted).

15

[T]he determination of whether the defendant will

testify is an important part of trial strategy best left to

the defendant and counsel without the intrusion of the

trial court, as that intrusion may have the unintended

effect of swaying the defendant one way or the other.

For example, as a matter of strategy and common

sense, the defendant and counsel may wait until well

into the trial before deciding whether the defendant will

testify. Thus, the trial court may not know that the

defendant will not testify until the defense rests. A

colloquy on the right to testify at that point not only

would be awkward, but more importantly[,]

inadvertently might cause the defendant to think that

the court believes the defense has been insufficient.

This belief in turn might prompt the defendant to

abandon an appropriate defense strategy without good

reason.

Pennycooke, 65 F.3d at 11 (citations omitted). See also Van

De Walker, 141 F.3d at 1452 (inquiries by trial court

"would unnecessarily intrude into the attorney-client

relationship and could unintentionally influence the

defendant in his or her choice") (internal quotation marks

and citation omitted); Liegakos, 106 F.3d at 1386

("[W]hether to testify is a fundamental element of a strategy

that the defendant may want (indeed, may be entitled) to

keep in confidence. . . . Defendant and his lawyer should

explore these issues and options carefully, but as a rule the

judge need not and should not, inquire into the choice of

defense strategy."). This rationale is rooted in the accepted

principle that it is defense counsel's responsibility, not the

trial court's, to make sure that the defendant is informed of

the right to testify and that any waiver of the right is valid.

Pennycooke, 65 F.3d at 13. See also United States v.

Teague, 953 F.2d 1525, 1534 (11th Cir. 1992) (en banc)

("[I]t is primarily the responsibility of defense counsel to

advise the defendant of his right to testify and thereby

ensure that the right is protected.").

The hypothetical situation we presented in Pennycooke

mirrors the chain of events at Leggett's trial. Leggett and

his attorney, Gardner, were apparently debating whether

Leggett should testify. However, the district court had no

16

way of knowing what they had decided between themselves

by the time the defense rested its case. The district court

wisely refrained from holding a colloquy with Leggett on the

issue, and avoided giving the impression that it thought

Leggett should testify. Still, Leggett raises two points in

maintaining that the district court erred in not having such

a colloquy. Neither point has merit.

First, Leggett observes that Pennycooke recognizes that,

under certain circumstances, a trial court should inquire as

to the defendant's decision to testify. While we did observe

this exception to the general rule, we also took great pains

to emphasize that it applies on the rarest of occasions.

We noted that only "in exceptional, narrowly defined

circumstances" is such judicial intervention appropriate.

Pennycooke, 65 F.3d at 12. To elucidate the point, we

provided the example of a situation in which "defense

counsel nullifies a defendant's right to testify over the

defendant's protest." Id. at 13. Prior to Pennycooke, we

encountered such a case. In Johnson, the defendant's

lawyer badgered the defendant into waiving his right to

testify by threatening to withdraw from the case, which

would have left the defendant to fend for himself for the

remainder of the trial. 555 F.2d at 117. We determined that

the "threatened loss of counsel" violated the defendant's

constitutional rights and "worked as a lever to pry from [the

defendant] his . . . right to testify." Id. at 120-21.

There is no indication that Leggett's situation was even

remotely as dire as that of the defendant in Johnson.

Leggett merely asserts that, during the course of the trial,

he was in disagreement with his attorney as to whether he

should testify. Unfortunately for Leggett, there is no

constitutional right to be represented by a lawyer who

agrees with the defendant's trial strategy. United States v.

Taylor, 128 F.3d 1105, 1108 (7th Cir. 1997). Mere

disagreement between defendant and counsel with regard

to strategic decisions does not create a situation severe

enough to compel a district court to investigate whether the

defendant's rights are being impinged. As long as it is clear

that defense counsel has informed the defendant of the

right to testify and the defendant understands that right, a

district court has no reason to intervene.10 See id. (no

_________________________________________________________________

10. Leggett makes no claim that he was either unaware of or did not

understand his right to testify.

17

violation where lawyer disagrees with defendant's decision

to testify but does not impede defendant's exercise of right

to testify); Emery, 139 F.3d at 199 (holding that defendant's

right to testify not violated where defendant understood

right and attorney did not coerce waiver of the right);

Noland v. French, 134 F.3d 208, 218 (4th Cir. 1998) (trial

counsel did not act improperly in failing to put defendant

on stand when defendant expressed no desire to testify),

cert. denied, No. 97-9428, 1998 WL 313265 (U.S. Oct. 5,

1998); Payne v. United States, 78 F.3d 343, 346 (8th Cir.

1996) (defendant cannot claim defense attorney acted

improperly in not advising defendant to testify when

attorney advised defendant of right to testify and, in fact,

defendant knew of right beforehand). Thus, mindful that

judicial inquiry concerning the right to testify "is the

exception, not the rule," we conclude that Leggett has not

presented any evidence that his attorney acted to

"frustrat[e] his . . . desire to testify." Pennycooke, 65 F.3d at

13. As such, Leggett has shown no reason why we should

apply the narrow Pennycooke exception to this case.

The second point raised by Leggett in support of his

"right to testify" claim is that the district court openly

expressed its opinion that he should not testify. The district

court made two statements in this regard. On November 8,

1995, the day before both sides concluded their

presentations of evidence, Gardner expressed concern that,

contrary to Gardner's advice, Leggett wished to testify. The

district court told Leggett:

[Y]ou ought to listen to your lawyer's advi[c]e. He's got

a better perspective on this than you do. And as I told

you before, if my son were on trial here, I would tell

him to follow his lawyer's advice. If I were on trial, I

would follow my lawyer's advice, even though I thought

it was wrong. And I do think that you should give that

the greatest consideration.

Then, on November 9, the district court engaged in this

exchange at sidebar with Gardner:

District Court: I didn't want to do this in open Court,

but do you have -- I'm not sure of your being entitled

to any further evidence, but I wondered whether you

had any.

18

Mr. Gardner: I haven't any.

District Court: All right. That's fine. I didn't want to say

it because I thought [Leggett] might jump up and say

he wanted to testify.

Clearly, the district court's comments on both occasions

were highly inappropriate. As we stressed in Pennycooke, it

is inadvisable for a trial court to address "a defendant

directly about his or her waiver of the right to testify." 65

F.3d at 11. Although we explicitly stated in Pennycooke that

a trial court should avoid encouraging a defendant to

testify, a trial court should also avoid discouraging such

testimony. Any strategic dispute between Leggett and

Gardner should have been resolved without comment from

the district court.

The impropriety of the district court's remarks being

noted, we nonetheless conclude that the district court did

not commit reversible error. See United States v. Leo, 941

F.2d 181, 195 (3d Cir. 1991) (ruling that district court's

restriction of defendant's right to testify could be considered

harmless error beyond a reasonable doubt if defendant was

not prevented from putting forth a complete defense).11 The

bare facts of the matter are these: (1) the day before the

defense rested its case, Leggett and his attorney disagreed

about Leggett's taking the stand; (2) one day later, at the

close of evidence, Leggett's attorney indicated that he had

no further evidence to present -- which implicitly meant

that Leggett would not testify; and (3) Leggett did not then

and does not now maintain that his attorney acted against

his wishes. Based on these facts, the district court received

no indication that Leggett was coerced by his attorney to

remain silent. The district court could only have assumed

that, in the 24-hour period leading to the close of evidence,

Gardner had convinced Leggett that testifying was not in

his best interests. See Lambrix v. Singletary, 72 F.3d 1500,

1508 (11th Cir. 1996) ("Without evidence that [the

defendant] was subject to continued coercion, we cannot

_________________________________________________________________

11. Although the government does not argue that the district court's

actions constituted harmless error, we have discretion to apply

harmless-error analysis to those actions. United States v. McLaughlin,

126 F.3d 130, 135 (3d Cir. 1997), cert. denied, 118 S. Ct. 2366 (1998).

19

assume that [the defendant's] apparent acquiescence to a

trial strategy in which he did not testify was anything but

voluntary."), aff'd, 520 U.S. 518 (1997).

Leggett makes much of the fact that the district court

asked Gardner at sidebar whether the defense had any

further evidence to present. Yet, the mere fact that the

district court asked for any further evidence at sidebar still

would not suggest that Leggett was denied the right to

testify unless one of two possibilities were true: either (1)

Leggett was not informed of his right to testify up to that

point or (2) Gardner defied Leggett's instructions and

offered no further evidence when Leggett had planned to

testify before the close of evidence. The first scenario clearly

does not apply since Leggett had asserted his right to testify

earlier in the trial. One who asserts the right to testify

cannot later claim ignorance of that right. See id. at 1508

(finding defendant's claim that he was uninformed of right

to testify dubious since defendant asserted right at earlier

trial based on same charges). The second scenario seems

equally baseless. To reiterate an earlier point, Leggett has

not argued in this appeal that Gardner misrepresented his

position. Furthermore, Leggett made several postconviction

pro se motions but not one was based on the denial of the

right to testify. If he had been planning to testify, one would

expect that the denial of that right would have been one of

the first bases he would have claimed in trying to overturn

his conviction.12 Therefore, although we find that the

district court rashly injected itself into a discourse better

left to the attorney and client, that imprudence did not

result in a violation of Leggett's right to testify. Leggett was

aware of his right to testify and his lawyer did nothing to

prevent him from testifying. There is no evidence to the

contrary.

To recapitulate, we hold that: (1) under the

_________________________________________________________________

12. We note also that Leggett has made no claim of ineffective assistance

of counsel -- a claim which would at least be colorable if Gardner had

kept him from testifying against his will. See Strickland v. Washington,

466 U.S. 668, 687 (1984) (convicted defendant may claim lawyer was

ineffective if lawyer did not function as "counsel" during trial and if

lawyer's actions prejudiced the defense).

20

circumstances of this case, the district court had no duty

to ascertain whether Leggett had validly waived his right to

testify; (2) Leggett's disagreement with trial counsel over

testifying did not create the exceptional circumstances

necessary to warrant judicial inquiry; and (3) the district

court's involvement in the dispute between Leggett and his

attorney, while inappropriate, did not amount to reversible

error because there is no evidence that Leggett had any

intention of testifying on November 9 before the close of

evidence. For these reasons, we reject Leggett's claim that

the district court denied him the right to testify.

C. Forfeiture of the Right to Counsel

Finally, we turn to Leggett's claim that the district court

improperly determined that he forfeited his right to counsel

at sentencing by physically attacking his lawyer. We

exercise plenary review over claims alleging denial of the

Sixth Amendment right to counsel. United States v.

Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995).

This case raises the issue of forfeiture of the right to

counsel. Forfeiture, however, is often confused with the

closely related -- but distinct -- concept of waiver. See, e.g.,

United States v. Mitchell, 777 F.2d 248, 258 (5th Cir. 1985)

(concluding that defendant "waive[d]" right to counsel while

resting decision on notion of forfeiture); Yale Kamisar et al.,

Modern Criminal Procedure, 1598 n.b (8th ed. 1994) (noting

that some courts refer to "waiver" as "forfeiture"). In the

interest of clarity, we shall initially note the distinction

between the two concepts. A waiver is "an intentional and

voluntary relinquishment of a known right." Goldberg, 67

F.3d at 1099 (citing, inter alia, Wayne R. LaFave & Jerold

H. Israel, Criminal Procedure, S 11.3(c), at 546 n.4 (2d ed.

1992)); United States v. McCleod, 53 F.3d 322, 325 n.6

(11th Cir. 1995) ("We discuss `forfeiture' rather than `waiver'

because waiver implies `an intentional relinquishment of a

known right.' ") (citation omitted). Most commonly, one

waives a constitutional right by an "affirmative, verbal

request" (e.g., requests to proceed pro se or to plead guilty).

Goldberg, 67 F.3d at 1099. It is well established that any

waiver of the right to counsel must be knowing, voluntary

and intelligent. United States v. Salemo, 61 F.3d 214, 218

21

(3d Cir. 1995); Government of the Virgin Islands v. James,

934 F.2d 468, 470 (3d Cir. 1991); McMahon v. Fulcomer,

821 F.2d 934, 944 (3d Cir. 1987). With regard to ensuring

that a waiver is valid, the trial court's responsibility varies

-- depending on the right being waived. As we discussed in

depth earlier, a trial court has no duty to ascertain that a

waiver of the right to testify is valid. By contrast, if a

defendant elects to waive the right to counsel, a trial court

must make sure that the defendant has "an awareness of

the dangers and disadvantages inherent in defending

oneself." United States v. Welty, 674 F.2d 185, 188 (3d Cir.

1982); see also Faretta v. California, 422 U.S. 806, 835

(1975) (trial record must show that defendant who waives

right to counsel " `knows what he is doing and [that] his

choice is made with eyes open' ") (citation omitted).

Forfeiture, on the other hand, does not require the

knowing and intentional relinquishment of a known right.

Rather, forfeiture "results in the loss of a right regardless of

the defendant's knowledge thereof and irrespective of

whether the defendant intended to relinquish the right."

Goldberg, 67 F.3d at 1100. To forfeit the right to legal

representation, a defendant must engage in "extremely

serious misconduct." Id. at 1102. For example, in McCleod,

a defendant's attorney testified that the defendant was

"verbally abusive"; had "threatened to harm[the attorney]";

had threatened to sue the attorney; and had tried to

persuade the attorney to engage in unethical conduct. 53

F.3d at 325. The district court concluded that the

defendant's behavior was so egregious as to constitute a

forfeiture of the right to counsel -- and the court of appeals

for the Eleventh Circuit agreed by affirming that decision.

Id. at 326.

Leggett's conduct was even more extreme than that of the

defendant in McCleod. Whereas the McCleod defendant's

abuse of his attorney was verbal in nature, Leggett's abuse

was an unprovoked physical battery. We do not hesitate to

conclude that such an attack qualifies as the sort of

"extremely serious misconduct" that amounts to the

forfeiture of the right to counsel. Goldberg, 67 F.2d at 1102.

Leggett argues that the requirements of Goldberg were

not satisfied by the district court when it concluded that

22

Leggett forfeited his right to a lawyer. We disagree. In

Goldberg, a defendant's attorney alleged that the defendant

had threatened his life. 67 F.3d at 1095. The district court

concluded that the defendant forfeited his right to counsel

by threatening the life of his attorney. Id. at 1096-97

(noting that district court used term "waiver" even though

it was actually applying forfeiture principle). We reversed

the district court's ruling but did not base our decision on

the severity of the defendant's misconduct. (Certainly, it

would be difficult to quantify a death threat as any more or

less offensive to the sensibilities of civilized society than,

say, an actual physical assault. Both acts are

reprehensible.) Instead, we reversed the district court's

ruling because its factual findings concerning the death

threat were made at a hearing to which the defendant was

not a party. Id. at 1102. We concluded that a forfeiture

ruling could not be based entirely on evidence presented at

an ex parte hearing. Id.

No such evidentiary problem exists in this case. An

evidentiary hearing was not necessary because Leggett

assaulted Gardner in full view of the district court.

Furthermore, at the subsequent competency hearing (at

which Leggett was represented by counsel), the district

court did consider the possibility that Leggett was not in

control of his faculties when he assailed Gardner-- though

it did ultimately conclude that he was responsible for his

actions.13 Thus, Leggett benefited from two elements which

were not present in Goldberg: (1) a direct presentation of

evidence before the district court (i.e., the occurrence of the

attack itself) and (2) participation in an adversarial

proceeding to contest the forfeiture. Since we based our

decision in Goldberg on the absence of these factors and

since those factors are present in this case, we reject

Leggett's argument that the requirements of Goldberg were

not satisfied by the district court.

_________________________________________________________________

13. In denying Leggett's motion for the appointment of counsel after the

attack and at the conclusion of the competency hearing, the district

court remarked, "[N]o evidence presented at th[e competency] hearing

supports Leggett's assertion that after engaging in an argument with his

counsel, allowing 20 seconds to pass, and then assaulting his counsel,

such actions were not voluntary."

23

In sum, we conclude that the district court did not err in

determining that, by physically attacking his attorney,

Leggett forfeited his right to counsel at the sentencing

hearing.14

III.

For the foregoing reasons, we will affirm the district

court's judgment of conviction and sentence.

_________________________________________________________________

14. We note that the forfeiture of counsel at sentencing does not deal as

serious a blow to a defendant as would the forfeiture of counsel at the

trial itself. For a number of reasons (e.g., the inapplicability of the

Federal Rules of Evidence), sentencing hearings " `demand much less

specialized knowledge than trials.' " United States v. Salemo, 61 F.3d

214, 220 (3d Cir. 1995) (quoting United States v. Day, 998 F.2d 622, 626

(1st Cir. 1993)). We underscore that the district court in this case made

its forfeiture ruling at the sentencing stage, not during the trial

itself. We

express no opinion as to whether Leggett's misconduct would have been

sufficient to justify the forfeiture of counsel during the trial.

24

McKEE, Circuit Judge, dissenting in part, and concurring in

part.

I agree that the defendant waived his right to counsel at

sentencing, and I concur dubitante in the majority's

holding that the district court did not err in not ordering a

competency examination.1 However, I respectfully dissent

from my colleagues' conclusion that the defendant "validly

waived his right to testify." Maj. Op. at 2. Indeed, the

majority misstates the issue. The issue is not whether the

defendant "validly waived" his right to testify. He did not

waive it at all. Instead, he was deprived of the opportunity

to testify after he and his attorney informed the court that

he wanted to do so. Accordingly, the majority's discussion

of waiver is misplaced. Rather, the issue here is whether

the district court violated a duty of inquiry under United

States v. Pennycooke, 65 F.3d 9 (3d Cir. 1995). Because I

believe that the district court's failure to inquire was a clear

violation of the holding in Pennycooke, I must respectfully

dissent.

I.

It is well settled that a criminal defendant has a

constitutional right to testify in his or her own behalf. Rock

v. Arkansas, 483 U.S. 44, 49-53 (1987). The decision

belongs to the defendant and may not be made by trial

counsel, or the court. See, e.g., Brown v. Artuz, 124 F.3d

73, 77 (2d Cir. 1997); Pennycooke, 65 F.3d at 10. Moreover,

"[t]he wisdom or unwisdom of the defendant's choice does

not diminish his right to make it." United States v. Teague,

953 F.2d 1525, 1533 (11th Cir. 1992) (quoting Wright v.

Estelle, 572 F.2d 1071, 1079 (5th Cir. 1978) (Godbold, J.,

dissenting)). Further, "the right to testify on one's own

behalf at a criminal trial . . . is one of the rights that `are

essential to due process of law in a fair adversary process.' "

Rock, 483 U.S. at 51 (citing Faretta v. California, 422 U.S.

806, 819, n.15 (1975)).

_________________________________________________________________

1. I define my concurrence in that issue as "dubitante" to signify that I

have reservations about that decision. See Salvation Army v. Dept. of

Community Affairs, 919 F.2d 183, 202 n.1. (3d Cir. 1990).

25

Leggett wanted to exercise that right. He told the trial

judge so. His attorney told the judge so, though he also

informed the court that he advised against it. The majority

agrees that defense counsel's opposition is irrelevant to our

analysis. See Maj. Op. at 14 ("The right is personal and can

be waived only by the defendant, not defense counsel")

(citing Pennycooke, 65 F.3d at 10). The trial court obviously

thought Leggett was competent to participate in his own

defense when he told the court he wanted to testify, and

today we uphold that conclusion. Yet, to put it mildly, the

trial judge was not particularly impressed with Leggett's

assertion of his right. The court first responded by urging

Leggett to follow his lawyer's advice. The majority has

already commented upon the colloquy in which the trial

court urged Leggett to take his lawyer's advice, and

mentioned the extent to which the judge attempted to get

Leggett to follow that advice. See Maj. Op. at 18. My

colleagues conclude that the court's comments then, and at

a subsequent side bar "were highly inappropriate." Maj. Op.

at 19. Indeed they were. They also constituted a breach of

the trial court's obligation to allow Leggett to testify in his

own behalf as is evidenced by the following exchange

between defense counsel, the court, and the defendant:

[DEFENSE COUNSEL]: I'm not resting at this point,

but I intend to rest. Now, Mr. Leggett has indicated to

me that he wants to testify. . . . I have advised him

against testifying. . . . I don't think it's in his best

interest . . . . He does not want to take that advice,

apparently, and he's -- at least up until now. I don't

know whether he's changed his mind to insist on

testifying.

[COURT]: Why don't you talk to him over the lunch

hour. And if he wants to take the stand, what is your

view as to whether -- I mean, aside from the right of it,

do you think he has the right to take the stand?

[DEFENSE COUNSEL]: I think he does, Your Honor.

[COURT]: All right. Well, what are you asking us to do,

if anything?

[DEFENSE COUNSEL]: Well, your Honor, if he takes --

if he insists on taking the stand, I'm not sure what my

26

role is at that point other than asking him his name,

because I don't -- I think it's self-defeating for this man

to testify.

* * *

Now, as far as what -- what my obligation is -- I think

that the Court ought to advise Mr. Leggett that, you

know, your lawyer has told you that it's not in your

best interests to testify. However, you do have a right.

. . . [I]f he says, yes, I wish to take the witness stand,

I don't have any questions prepared to ask him, other

than what's your name and what do you have to say to

the jury on your behalf.

* * *

[COURT] [addressing the prosecutor]: Well, what is

wrong with Mr. Gardner asking his witness -- asking

his client, if the client insists on taking -- I don't know

whether Judge McClure is waiting out there or not. .. .

We are late . . . . I throw this out for consideration. Mr.

Gardner might properly ask him, well, what happened

with respect to . . . whatever the gentleman's name

was. What happened at that incident. Do you think

there's something wrong with that?

[PROSECUTOR]: At a minimum I think that should be

asked, Judge.

[COURT]: All right. Do you see anything wrong with

that?

[DEFENSE COUNSEL]: . . . I don't know what Mr.

Leggett's going to say. I'm at a loss. I never put a

witness on the stand like Mr. Leggett before. And

nothing that I've said or discussed with him over the

past months has given me any indication of what he's

going to say when he gets on the witness stand, other

than ideation and these hallucinations and delusion.

[COURT]: Of course, that may be very helpful to you.

[DEFENSE COUNSEL]: Again, like I say, I don't know

what the man's going to say.

[COURT]: I'm perfectly willing to tell Mr. Leggett what

I told him before, that you ought to listen to your

27

lawyer's advise.[sic] . . . If I were on trial, I would follow

my lawyer's advice, even though I thought it was

wrong. And I do think that you should give that the

greatest consideration.

What more do you think I ought to tell him, if

anything?

[DEFENSE COUNSEL]: That his criminal record may

come out if he takes the stand.

* * *

[COURT]: Well, he knows that. . . . What else?

[DEFENSE COUNSEL]: That he may -- well, in my

opinion, he's going to -- it's going to be self-defeating

and he's going to destroy any possibility of an acquittal

in this case.

[COURT]: Well, I think there's question about that. He

may be so far off base that it might win this case for

him. So I don't know what more you want me to say.

[DEFENSE COUNSEL]: That's [sic] suffices, Your

Honor.

* * *

[DEFENDANT]: I can't talk?

[COURT]: What did you want to say?

[DEFENDANT]: I wanted to say this here. This lawyer

ain't been talking to me. If he would have been talking

to me, he would know what I was going to say on the

witness stand. That shows that this man is giving me

ineffective assistance. He taking about he don't know

what I'm going to say on the stand.

* * *

[COURT]: Just a minute. . . . The law clerks and I have

discussed Mr. Gardner's performance in this case, and

we think it is remarkably good, and -- so don't tell me

that he's giving you ineffective assistance. He's going

[sic] an excellent job.

* * *

28

[DEFENDANT]: Well, what I'm --

[COURT]: Just a second. I have got appointment [sic]

with another judge. You know it. I am seven minutes

late. I am going to keep it, and this Court's in recess.

App. at 148-151. The defendant responded "How did I

know? You didn't tell me you had no appointment." Supp.

App. at 125. A luncheon recess was then called. When

court resumed a witness was called out of order, and the

government proceeded with rebuttal. The court never

inquired further of Leggett. The next day, immediately prior

to the close of the case, the judge, prosecutor and defense

counsel had the following discussion:

[PROSECUTOR]: The prosecution has no other rebuttal

witness, Your Honor. We would move into evidence

certain of the documents the Court has previously seen

today, but we can do that out of the presence of the

jury.

[COURT]: Okay. All right. May I see counsel, please.

(at sidebar)

I didn't want to do this in open Court, but do you have

-- I'm not sure of your being entitled to any further

evidence, but I wondered whether you had any.

[DEFENSE COUNSEL]: I haven't any.

[COURT]: All right. That's fine. I didn't want to say it

because I thought he might jump up and say he wanted

to testify.

App. at 163 (emphasis added).

The majority holds that this scenario does not fall within

the "exceptional, narrowly defined circumstances" that

require "a direct colloquy with a defendant . . . to ensure

that the defendant's right to testify is protected."

Pennycooke, 65 F.3d at 12. If it doesn't, then I am hard

pressed to imagine a scenario that would.

II.

Pennycooke established that a trial judge usually has no

such duty of inquiry. Our reasoning there was based upon

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the personal nature of the right to testify in one's own

behalf, the dangers of the trial court intruding into matters

of strategy, and the danger that unintended consequences

could result thus interfering with the exercise of a

fundamental constitutional right rather than protecting it.

Id. at 11-12. Nevertheless, as noted above, we recognized

that "exceptional, narrowly defined circumstances" could

require "judicial interjection through a direct colloquy to

ensure that the defendant's right to testify is protected." Id.

at 12. The majority recognizes this, but hastens to add: "we

also took great pains to emphasize that it applies on the

rarest of occasions." Maj. Op. at 17. Indeed we did.

However, that qualifier does not establish that this is not

such an occasion.

My colleagues conclude that this is not such an occasion

by characterizing the events that transpired during the trial

as a "[m]ere disagreement between defendant and counsel

with regard to strategic decisions." They conclude that the

"disagreement" "does not create a situation severe enough

to compel a district court to investigate whether the

defendant's rights are being impinged." Maj. Op. at 17.

However, "every circuit that has considered this question

has placed the defendant's right to testify in the `personal

rights' category -- i.e., waivable only by the defendant

himself regardless of tactical considerations." Artuz, 124

F.3d at 77.

Furthermore, even assuming this was a "mere

disagreement" over strategy, it was still a violation of the

holding in Pennycooke to only ask defense counsel if his

client wanted to testify, and make absolutely no inquiry of

the defendant. See Ortega v. O'Leary, 843 F.2d 258, 261

n.2 (7th Cir. 1988) (stating that it is error to question only

the attorney about a defendant's desire to testify where

defendant interrupts a trial to express a desire to do so).

Not only did the trial court address its inquiry only to

counsel, it did so in a manner that prevented the defendant

from responding, or objecting to his attorney's response. In

fact, the defendant did not even know that the trial court

had asked the question of his attorney. It is true that

Leggett did not request to testify following the sidebar when

his attorney informed the court that he had no additional

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evidence to present. It is also irrelevant. How could he

make such a request? Leggett could not very well have

disrupted the proceedings by standing in open court and

speaking directly to the judge without being asked

anything. That was the choice that the judge's side bar left

him. This jury was about to determine his fate. Surely,

Leggett's failure to jump to his feet in front of the jury and

insist that he be allowed to speak can not equate with a

waiver of the right he had asserted just the preceding day.

Ironically, Leggett may have done exactly that (jump to his

feet and assert his right to testify as the judge feared) had

he known what was going on. The judge realized that. He

called defense counsel to sidebar to prevent it. Thus, the

majority places far too much importance on Leggett's failure

to speak out in front of the jury. That silence establishes

nothing more than the success of the court's efforts to

silence Leggett and prevent him from "jump[ing] up and

say[ing] he wanted to testify".

The majority attempts to minimize the trial judge's

attempt to keep Leggett from jumping up and asserting his

right to testify as follows:

The bare facts of the matter are these: (1) the day

before the defense rested its case, Leggett and his

attorney disagreed about Leggett's taking the stand; (2)

one day later, at the close of evidence, Leggett's

attorney indicated that he had no further evidence to

present -- which implicitly meant that Leggett would

not testify; and (3) Leggett did not then and does not

now maintain that his attorney acted against his

wishes. Based on these facts, the district court received

no indication that Leggett was coerced by his attorney

to remain silent. The district court could only have

assumed that, in the 24-hour period leading to the

close of evidence, Gardner had convinced Leggett that

testifying was not in his best interests.

Maj. Op. at 19-20 ((citing Lambrix v. Singletary, 72 F.3d

1500, 1508 (11th Cir. 1996) ("Without evidence that [the

defendant] was subject to continued coercion, we cannot

assume that [the defendant's] apparent acquiescence to a

trial strategy in which he did not testify was anything but

voluntary."), aff'd, 520 U.S. 518 (1997)). Although this

31

explanation is based on the record, the majority's

conclusion as to what the district court assumed is rank

speculation, not "bare facts." Moreover, that conjecture is

contradicted by the trial judge's own statements at side bar.

If the judge "could only have assumed that . . . Gardner

had convinced Leggett that testifying was not in his best

interest" I am at a loss to understand the judge's own

explanation that he was speaking to Gardner at sidebar so

that Leggett would not "jump up and say he wanted to

testify."

Nothing that had transpired during the trial would have

caused the trial judge to conclude that Leggett and his

attorney had finally found a way to communicate on the eve

of the close of the trial. Rather, all that had gone before,

including the statements of Leggett, and his attorney,

suggested Leggett continued to insist on taking the stand

against advice of counsel even though the judge had

attempted to cajole him into following his attorney's advice.

Moreover, even if the judge had somehow reached the

conclusion that during the preceding 24 hours, defense

counsel and Leggett experienced an epiphany that had

brought about a renaissance of communication between

them, the trial court still had a duty of inquiry under

Pennycooke to ascertain whether Leggett (and not his

counsel) had made that decision, or whether counsel was

failing to call Leggett against Leggett's wishes based upon a

dispute over strategy.2 Defense counsel candidly conceded

that he was "at a loss" and that he "had never put a

witness on the stand like Mr. Leggett before." Moreover, the

majority's willingness to find a waiver from defendant's

failure to respond following the sidebar would be troubling

even if waiver were the issue here. "A reviewing court must

`indulge every presumption against waiver of fundamental

_________________________________________________________________

2. Defense counsel's familiarity with the personal nature of the right to

testify was such that the trial court should have been even more

concerned about who was making the decision. When initially asked if

he thought his client had the right to testify, defense counsel responded:

"Well, Your Honor, as I said, I've talked to lawyers that I respect and do

a lot of criminal law about this issue, last week and also yesterday. And

they both said that they believe that Mr. Leggett has the right to --

constitutional right to testify." App. at 148A.

32

constitutional rights.' " Ortega v. Leary, 843 F. 2d 258, 261

(7th Cir. 1988) (quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938)).

The majority cites Lambrix v. Singletary to support its

supposition that the trial judge "could only" have assumed

that Leggett and his attorney had resolved their differences

the night before. There, the defendant was tried before a

jury on charges of murder. The jury deadlocked. Lambrix

was retried and received the death penalty following

conviction. On appeal he raised several issues including

whether he was entitled to the benefit of the holding in

Espinosa v. Florida, 505 U.S. 1079 (1992), that had been

decided following his conviction. See Teague v. Lane, 489

U.S. 288, 294 (1989). He also argued that his trial attorney

rendered ineffective assistance by coercing him into not

taking the witness stand. The Court of Appeals for the

Eleventh Circuit affirmed the conviction. The court held

that the defendant's claim that he had improperly been

coerced into not testifying was without merit because the

only supporting evidence related solely to his first trial.

Since the remedy would have been a new trial, the court

reasoned that the defendant could not prevail as he had

already received a new trial based upon the first jury not

reaching a verdict. The court also held that there was

"simply no evidence in the record that Lambrix was coerced

not to testify in his second trial," despite his claim that the

coercion lingered. See Lambrix, 72 F.3d at 1508. The

Supreme Court affirmed, but only discussed the issues

arising under Teague. The Court did not address Lambrix's

assertion that his right to testify in his own behalf had been

abridged.

III.

I am, of course, mindful that the trial judge here was

trying to maintain order during this trial, and that Mr.

Leggett was no doubt a rather difficult defendant. I am also

mindful that Leggett's contumacious proclivities are

irrelevant. "[A] contentious defendant has no fewer rights

than a sympathetic one." Ortega, 843 F.2d at 261. Thus, I

can only conclude that my colleagues' decision today will be

yet another example of the old adage that "hard cases make

33

bad law." The majority decision will also go a long way

toward eroding the holding in Pennycooke, as it will serve

as an example of a situation that does not create a duty of

inquiry despite the "exceptional, narrowly defined

circumstances" here. That conclusion cannot be supported

on this record. Accordingly, I must respectfully dissent from

Part IIB of the majority opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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