FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 11, 2002

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 01-11856

 

D. C. Docket No. 00-00106 CR-RV

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAPHONSE YOUNG,

a.k.a. Akilio Young,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Alabama

 

(April 11, 2002)

Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and MILLS*, District

Judge.

_________________________

*Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting by

designation.

DUBINA, Circuit Judge:
1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October

1, 1981.

2

In this case, we consider an issue of first impression in this circuit: whether a

defendant’s right to proceed pro se is unqualified if the defendant asserts his

request after the jury is empaneled but before the jury is sworn. Following the

dictate of Chapman v. United States, 553 F.2d 886 (5th Cir. 1977),1

 and several

other circuits’ interpretive holdings, we hold that a defendant’s right of selfrepresentation is unqualified if the defendant asserts that request before the jury is

empaneled, absent any indication that the defendant is attempting to delay the

proceedings. Applying this rule to the present case, we conclude that the district

court properly denied defendant Laphonse Young’s (“Young”) request to proceed

pro se as untimely because Young asserted his request after the jury was

empaneled.

BACKGROUND

The government charged Young in a two-count federal indictment. Count

One charged Young with possession of stolen mail, in violation of 21 U.S.C. §

1708. Count Two charged Young with possession of a firearm after a felony

conviction, in violation of 18 U.S.C. § 922(g)(1). The evidence at trial consisted of
3

postal inspectors’ testimony that numerous individuals complained about stolen

mail from post office boxes in the city of Mobile, Alabama. During the

investigation, Young became the primary suspect. The postal inspectors set up a

video surveillance at one of the post office locations where previous thefts had

occurred. The video captured Young taking mail from a post office box. The

postal inspectors arrested him. Young proceeded to trial where a jury found him

guilty on both counts. Young then perfected this appeal. 

ISSUES

1. Whether the district court properly denied Young’s motion to proceed

pro se.

2. Whether the district court abused its discretion by admitting into evidence

the checks comprising Government’s Exhibit 11.

3. Whether the district court abused its discretion by admitting hearsay

evidence at trial.

4. Whether the prosecutor engaged in misconduct during the closing

argument.

5. Whether the postal inspectors violated Young’s Fourth Amendment

rights by searching his post office box without a warrant.
2

 We discuss only Young’s first issue regarding his right to proceed pro se. Because we find

no merit to Young’s remaining issues, we affirm the district court’s disposition of those issues

without further discussion. See 11TH CIR. R. 36-1.

4

6. Whether the cumulative impact of the errors asserted by Young deprived

him of a fair trial.

DISCUSSION2

Young contends that the district court violated his constitutional right to

proceed pro se. We disagree and hold that the district court properly denied

Young’s request as untimely because Young asserted his right after the parties had

selected the jury.

In Faretta v. California, 422 U.S. 806, 817-18, 95 S.Ct. 2525, 2532 (1975),

the Supreme Court held that the Sixth Amendment right to the assistance of

counsel includes the right to represent oneself. In making its pronouncement, the

Court discussed the timeliness of a request to proceed pro se. The Court twice

described the timing of Faretta’s request to represent himself: once that he

requested it “weeks before trial,” and once that he requested it “well before the date

of trial.” 422 U.S. at 835, 807, 95 S.Ct. at 2541, 2527. The Court mentioned the

timeliness of the request in both the opening paragraphs and the breadth with

which the Court announced its decision. Id. at 835-36, 95 S.Ct. at 2541. Although

the Court’s holding did not specifically concern the timeliness of the defendant’s
5

request to proceed pro se, the Court did discuss the necessity of timeliness of the

request.

In discussing Faretta, other circuits have considered the timeliness of a

defendant’s request for self-representation. See e.g., Buhl v. Cooksey, 233 F.3d

783, 795 (3d Cir. 2000) (holding that a defendant’s request for self-representation

was timely because he first made it several weeks before trial and then reasserted

the request the day before the trial began); United States v. Walker, 142 F.3d 103,

109 (2d Cir. 1998) (holding that a defendant’s request for self-representation was

untimely although he made it before empaneling of the jury because he asserted the

request after nineteen days of voir dire); Savage v. Estelle, 924 F.2d 1459, 1463 n.7

(9th Cir. 1990) (noting that the defendant’s request for self-representation was

timely because he asserted it before voir dire and thus before the jury was

empaneled); United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979)

(holding that a defendant’s request for self-representation was untimely because he

made it after the jury had been selected and before the trial court had sworn the

jury). 

Our circuit, however, has not addressed the issue of timeliness of a pro se

request in a case where a defendant asserts his right of self-representation after the

parties have selected a jury. Our predecessor, the Fifth Circuit, considered a case
6

where the defendant asserted his right to proceed pro se before the empaneling of

the jury. Chapman, 553 F.2d at 888. In discussing the timeliness of Chapman’s

request, the court held that “a demand for self-representation must be honored as

timely if made before the jury is selected, absent an affirmative showing that it was

a tactic to secure delay.” Id. at 887. Subsequently, our circuit, in dicta, stated that

“[s]everal courts, including our predecessor the Fifth Circuit, have held that a

defendant’s request to represent himself is timely if made prior to the jury’s being

selected or sworn.” Horton v. Dugger, 895 F.2d 714, 717 (11th Cir. 1990). The

defendant in Horton asserted his right to self-representation after the parties had

selected the jury and the trial judge had sworn the jury. Thus, Horton’s

interpretation of Chapman’s holding had no bearing on the facts presented by that

case because Horton’s request was untimely since it was asserted after the jury was

empaneled and sworn. 

Following our precedent in Chapman, we conclude that a defendant’s

request to proceed pro se is untimely if not made before the jury is empaneled. 

Accordingly, the district court here properly denied Young’s request to proceed

pro se since he made his request after the parties had selected the jury. “[C]ourts

must consider the fundamental nature of the right and the legitimate concern for

the integrity of the trial process. . . . If there must be a point beyond which the
7

defendant forfeits the unqualified right to defend pro se, that point should not come

before meaningful trial proceedings have commenced.” Chapman, 553 F.2d at

895. In this case, the meaningful trial proceedings commenced when the parties

selected the jury; therefore, Young’s request for self-representation was untimely. 

CONCLUSION

The precise holding of Chapman requires that a district court honor as

timely a defendant’s demand for self-representation if the defendant asserts the

right before the jury is selected, absent an affirmative showing that the defendant

made the request in order to delay the trial proceedings. 553 F.2d at 887. 

Following that precise holding, we conclude that Young’s request, which he

asserted after the parties selected the jury but before the judge swore the jury, was

untimely. Accordingly, we affirm the district court’s order denying Young’s

request to proceed pro se. 

AFFIRMED.