1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 97-60277

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VERSUS

ANTHONY KIZZEE,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Mississippi

August 10, 1998

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PARKER, Circuit Judge:

I.

FACTS & PROCEDURAL HISTORY

Anthony Kizzee was arrested in C alifornia on various drug

offenses and was transferred to the Southern District of

Mississ ippi for trial where the offenses charged were committed.

At his initial appearance on September 13, 1996, Kizzee stated that

his attorney, Milton Grimes of California, was unable to be present

on that date and therefore he was not arraigned. Nevertheless, by

September 17, 1996, Kizzee requested court-appo inted counsel and2

signed the accompanying f inancial affidavit. September 18, the

following day, the district court appointed D. Neil Harris to

represent Kizzee. Harris moved to continue the original trial date

of October 7, 1996, and the district court granted the motion,

scheduling trial for February 3, 1997. By January 2, 1997,

Kizzee’s family had retained Darwin M. Maples to represent Kizzee.

On January 8, 1997, Harris moved to withdraw as Kizzee’s attorney

at Kizzee’s request. On January 10, 1997, Maples requested that

the district court substitute him as retained counsel for Kizzee.

The district court granted the motion.

On January 24, the district cou rt denied Kizzee’s p ro se

motion to dismiss his indictment, determining that Kizzee had not

been denied his right to a speedy trial. At that hearing, Kizzee

i nformed the court that his family was trying to hire co unsel to

rep lace Maples and that he did not want Maples as his attorney.

The district court asked Kiz zee whether he wished to proceed

without counsel, and Kizzee answered that he did not. The district

court informed Kizzee that if he retained other counsel, the new

attorney would have to be ready to go to trial on February 3.

Kizzee’s trial proceeded on February 3, 1997, with Maples as

defense counsel. Before the jury was selected, Kizzee moved to

dismiss Maples as his counsel. Kizzee stated that Maples did not

file motions that Kizzee wished to present to the district court.

Kizzee argued again that he was denied a speedy trial. He also

moved for a change of venue and stated that he had been denied the3

opportunity to review all of the discovery materials. Kizzee

stated that Maples could not have prepared sufficiently for trial

in the time that he had prior to trial. Kizzee also stated that he

was not being afforded a fair trial. Whereupon, the district court

informed Kizzee that it had previously ruled on the spee dy-trial

motion. The court then overruled all of Kizzee’s motions after

Maples assured the court that he had received all the discovery

materials from Kizzee’s previous attorney and that he had gone over

the materials with Kizzee.

After the trial had proceeded for two days, Maples requested

permission to make a statement on the record. Maples stated that

he had tried to discuss the case with Kizzee befor e the trial

began, b ut Kizzee refused to talk to him. Maples stated that he

did manage to go over the discovery materials with Kizzee and that

he discussed with Kizzee the information that had been elicited by

the Go vernment at trial. Maples stated that “[t]his has been no

surprise to me or the defendant and I would say that I explained to

him about the witnesses, most of them that were testifying here.

.

. . But the cooperation has been very, very limited and very, very

unusual.”

Kizzee stated that Maples had not conducted sufficient crossexamination of the witnesses and that Maples had been “hiding

behind this briefcase over here, not taking no notes, not doing

nothing, not asking questions. He is not even trying to defend me.1 The district court did not recall a chemist who had

returned to California because the parties had stipulated that

the substance seized was cocaine.

4 I don’t think he’s in my best interest.

. . . He’s not working with

me at all.”

Follow ing the Government’s direct examination of its next

witness, K izzee requested permission to ask questions of the

witness. Kizzee asked, “Don’t I have the right to defend myself?”

T he district court explained that Kizzee could question the

witnesses bu t cautioned Kizzee that he could not testify without

taking the stand. The court stated that it would help Kizzee to

stay “within the rules.” Kizzee responded, “Okay, But I want -- at

this point start to defend myself better.” From that point, Kizzee

conducted his own defense, cross-examining the witnesses himself.

The district court agr e ed to recall witnesses previously

examined by the Government in response to Kizzee’s complaints about

Maples’ performance during the trial so that Kizzee could question

them. 1 The district court allowed Kizzee wide latitude in

questioning the witnesses, and Kizzee cross-examined each witness

presented by the Government on the third day o f trial. The

district court instructed Maples to assist Kizzee as needed.

Following the presenta tion of the Government’s case, Kizzee

complained that Maples was not assisting him. Kizzee again stated

that during Maples’ cross-examination, Maples did not ask certain

questions that Kizzee had requested Maples to ask. Kizzee also5

requested additional time to review some of the discovery

materials.

Maples stated that during the first two days of trial, he had

cross-examined witnesses after conferring with Kizzee about what to

ask on cross-examination. The district court denied Kizzee’s

motion for additional time to review the discovery materials after

Maples stated that he had reviewed the materials with Kizzee “page

by page,” despite Kizzee’s refusal, at times, to communicate with

Maples.

Kizzee conducted direct examination of five re-called

government witnesses on the last day of trial, and Kizzee delivered

the closing argument. After the jury returned guilty verdicts, the

district court informed Kizzee that he should confer with Maples

concerning sentencing issues, and Kizzee agreed to do so.

Kizzee contends on appeal that the district court erred by not

post-poning his trial long enough for Maples to prepare an adequate

defense, and that the district court erred when it allowed the

trial to continue after the proceedings began to deteriorate.

Further, Kizzee contends that at trial he was forced to choose

between ineffective trial counsel and self-representation and that

this situation cannot be viewed at a voluntary waiver of the Sixth

Amendment right to counsel. Kizzee therefore contends that he was

denied effective assistance of counsel, and that the district

court’s failure to continue the trial resulted in a fundamentally

unfair trial.6 II.

LAW & ANALYSIS

A.

Continuance

“[T]rial judges have broad discretion in deciding whether to

grant continuances.” U nited States v. Correa-Ventura

, 6 F.3d 1070,

1074 (5th Cir. 1993). Because Kizzee did not move for a

continuance in the d istrict court, his assertion is reviewed for

plain error only. S ee United States v. Jackson

, 50 F.3d 1335, 1340

n.6 (5th Cir. 1995) (issue which is not raised in district court is

reviewed for p lain error). Under Fed. R. Crim. P. 52(b), this

co urt may correct forfeited errors only when the appellant shows

the following factors: (1) there is an error, (2) that is clear or

obvious, and (3) that affects his substantial rights. United

States v. Calverley

, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc),

citing United States v. Olan o , 507 U.S. 725, 730-36 (1993). If

these factors are esta blished, the decision to correct the

forfeited error is within the sound discretion of the court, and

the court will not exercise that d iscretion unless the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedi ngs. O lano

, 507 U.S. at 736. To prevail in an

assertion t hat the court should have granted a continuance on

appeal, the appellant must demonstrate “serious prejudice.”

Correa-Ventura , 6 F.3d at 1074.7 i.

Before Trial

Kizzee’s assertion that the district court should have ordered

a continuance before trial began because counsel could not prepare

sufficiently for trial in thirteen days is disingenuous. Harris,

Kizzee’s appointed counsel, indicated that Kizzee informed him on

December 23, 1996, that Kizzee had retained Maples. Kizzee himself

testified that Maples was retained by his family on January 2,

199 7. On January 10, 1997, Maples filed a motion to substitute

counsel. Trial was scheduled for February 3. Kizzee suggests that

this court should presume prejudice because counsel was retained a

short time prior to trial. This court has rejected that claim when

counsel had only seven days to prepare. S ee Jackson

, 50 F.3d at

1340 n.6.

Kizz ee’s assertions that the district court should have

continued the trial because it was aware, and Maples informed the

court, that he was unprepared for trial are also without merit.

Maples told the district court that he had received the discovery

materials timely and that he had reviewed the materials with

Kizzee. Although Maples asserted that he did not have any

witnesses to present in Kizzee’s defense, Maples informed the court

that he tried to get Kizzee to talk to him about the witnesses and

Kizzee refused to tell Maples anything about any witnesses. Maples

stated that none of the testimony elicited at trial came as a

surprise and that he had reviewed the exhibits with Kizzee.8

Fi nally, Kizzee’s contention that the district court should

have granted a continuance prior to trial to protect his interests

is refuted by Kizzee’s own pretrial conduct. At the hearing on

January 24, 1997, and on the day trial began, Kizzee argued for

d ismissal on the grounds that he did not receive a speed y trial.

At no time did Kizzee seek a continuance. Instead, he continued to

press the sp eedy-trial issue. The district court did not err by

failing sua sponte to continue the February 3, 1997, trial date.

ii.

During Trial

Kizzee also contends that the district court should have

stopped the trial proceedings once Kizzee assumed his own defense

and the proceedings deteriorated to the point that Kizzee could not

obtain a fair trial. Kizzee notes specific record passages in

support of his argument. The Government seeks to adopt the record

references cited in Kizzee’s brief, asserting that these references

demonstrate the district court’s attempt to safeguard Kizzee’s

rights and to provide Kizzee with a fair trial.

Inspection of each cited reference indicates that the

Government’s characterization of these passages is accurate. The

district court tried to help Kizzee ask questions that would elicit

the information he was seeking . The district court protected

Kizzee’s appellate rights by moving for a judgment of acquittal at

the close of the Government’s case and at the close of the trial.

The district court would not allow Kizzee to ask questions about9

inadmissible evidence and would not allow him to testify during the

co urse of his examinations of the witnesses and in closing

argument. The district court would not allow Kizzee to ask the

same question repeatedly or to continue a line of questi oning

following a sustained objection.

Kizzee’s characterization of the district court’s conduct is

inaccurate. Kizzee’s example of the court engaging in dialogue

with a witness was actually an instance in which the court

instructed the witness not to ask questions of Kizzee. Kizzee’s

example of the court answering for the witness was an instance in

which the prosecutor was conducting the examination.

Kizzee’s contention that the district court cond ucted the

trial improperly, abused its discretion, and deprived him of a fair

trial is a disparaging mischaracterization of the events recorded

in the trial transcript. The conduct of trial is a matter within

the sound discretion of the district court. United States v.

Chavis

, 772 F.2d 100, 108 (5th Cir. 1985). The district court has

the authority to question a witness and clarify facts that are

p resented. U

nited States v. Weeks

, 919 F.2d 248, 253 (5th Cir.

1990). As the Government noted, the record passages identified by

Kizzee as instances of improper conduct by the district court

actually demonstrate the distr i ct court’s attempt to maintain

proper trial procedure, while attempting to assist Kizzee in his

own defense. A review of the entire trial transcript demonstrates10

that the district court did not deprive Kizzee of a fundamentally

fair trial.

B.

Right to Counsel

Kizzee, like all other felony defendants, had a constitutional

right to effective assistance of counsel at his trial. Tucker v.

Day , 969 F.2d 155, 159 (5th Cir. 1992); Strickland v. Washington

,

466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984).

By the same token, Kizzee had a constitutional right to represent

himself. The choice to represent one’s self is honored by the

Constitution, provided that it is made knowingly and voluntarily.

United States v. Martin

, 790 F.2d 1215, 1218 (5th Cir. 1986),

citing McKaskle v. Wiggins

, 465 U.S. 168, 173, 104 S. Ct. 944, 949,

79 L. Ed. 2d 122 (1984 ). There is a presumption against finding

waiver of the right to counsel, founded in our realization of the

inherent treachery of that course. Burton v. Collins , 937 F. 2d

131, 133 (5th Cir. 1991)( A defendant’s assertion of the right to

self-representation must be “clear and unequivocal”), citing

Faretta v. California

, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45

L. Ed. 2d 562 (1975). Nevertheless, that election, no matter how

perilous, must be honored if clearly and unequivocally made by a

defendant with his eyes open. F aretta, supra

. If Kizzee properly

waived his right to counsel, then no denial of that right has

occurred and Kizzee was not denied a fair trial.11 We will accept, for the sake of argument, Appellant’s

proposition that his waiver of the right to counsel, if any, was

not voluntary, because he chose self-representation over

ineffective as sistance of counsel. However, that proposition is

predicated on the notion that Maples’ representation of Kizzee

amounted to ineffective assistance of counsel.

Generally, this Court declines to review Sixth Amend m ent

claims of ineffective assistance of counsel on direct appeal.

United States v. Gibson

, 55 F.3d 17 3, 179 (5th Cir. 1995). This

Court has “unde rtaken to resolve claims of inadequate

representation on direct appeal only in rare cases where the record

allowed [the court] to evaluate fairly the merits of the claim.”

United States v. Higdon , 832 F.2d 312, 314 (5th Cir. 1987).

Kizzee contends that the record is sufficiently developed for

this Court to address his ineffective-assistance claims. The

Government contends that the issue was not presented to the trial

court and that this Court should not address Kizzee’s claims that

Maples’ representation was constitutionally deficient.

Kizzee did express his dissatisfaction with Maples before and

during trial, and the district court did entertain some discussion

of the allegations of ineffectiveness on the record. However,

neither Maples nor Kizzee were sworn and subjected to a hearing on

the allegations of ineffective assistance of counsel. Also, the

district court did not make any factual findings regarding the

allegations of ineffective assistance . If this Court were to12

analyze these issues on the present record, we would have to

speculate as to the reasons for Maples’ alleged acts and omissions.

See United States v. Thomas , 12 F.3d 1350, 1368 (5th Cir. 1994).

Kizzee’s case is not one in which this Court should endeavor

to consider ineffective assist ance of counsel claims on direct

appeal. Therefore, we decline to consider Kizzee’s claims of

ineffective assistance of counsel wit hout prejudice to Kizzee’s

right to raise that issue in a § 2255 motion. See United States v.

Price , 95 F.3d 364, 369 (5th Cir. 1996).

III.

CONCLUSION

The district court did not err by failing sua sponte to

continue the February 3, 1997, trial date, as retained counsel had

been on the job since January 2, 1997, at the latest.

The district court did not err by failing to st op the trial

once Kizzee had taken over his own representation. The record

reveals that the district court did all it could to assist Kizzee,

and that Kizzee got a fair trial.

F inally, this Court cannot address Kizzee’s contention tha t

his waiver of the right to counsel was involuntary because he was

forced to choose bet ween ineffective assistance of counsel and

self-representation. The record before us is not developed well

enough on the point for us to determine the adequacy of Maples’

representation of Kizzee. We therefore must decline to review this

point of error, preserving Kizzee’s right to present this matter to13

the district court via § 2255. Therefore we affirm Kizzee’s

conviction.

AFFIRMED.