United States v. Donald Teague

953 F.2d 1525, 1992 U.S. App. LEXIS 2612, 1992 WL 21381

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 26, 1992
• Docket: 89-8181
• Status: Published

Opinions

FAY, Circuit Judge:

Defendant Donald Teague was convicted of attempting to possess marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1) and 846, and carrying a firearm during a drug trafficking crime, 18 U.S.C. § 924(c). He appealed the district court’s denial of his motion for a new trial, arguing that he was denied his constitutional right to testify because his counsel did not call him as a witness at his trial. A divided panel of this court agreed that Teague’s right to testify had been violated, and reversed. United States v. Teague, 908 F.2d 752 (11th Cir.1990). A majority of the judges of this court in regular active service voted that this case be reheard by this court en banc. United States v. Teague, 932 F.2d 899 (11th Cir.1991) (on petition for rehearing and suggestion for rehearing en banc).¹ On rehearing, we AFFIRM the judgment of the district court.

BACKGROUND

The record indicates that in August 1988, Donald Augustine, an undercover Drug Enforcement Administration (DEA) agent, arranged to sell seventy-five pounds of marijuana to Kenneth Patterson. Patterson was to make an initial payment of $35,000 and a final payment of $17,500 a few days later.

At that time, Donald Teague was working for Patterson on the renovation of Patterson’s mother’s home in Atlanta. On the morning of August 17, 1988, Patterson and Teague made several trips together away from the house. On the first trip, they went to a hardware store and then bought beer at a bait shop. They later made a second trip to the bait shop to buy ice. After returning from the second trip, Patterson asked Teague to accompany him on a third trip, and the two drove off in Patterson’s truck. When Teague asked where they were going, Patterson said they were going “to check out some herbal.”

Patterson and Teague drove to the restaurant parking lot where Patterson had agreed to meet with Augustine. Patterson got out of the truck and spoke with Augustine while Teague remained in the truck. When Augustine asked who Teague was, Patterson identified him as his partner. Patterson then got back in the cab of the truck, while Augustine remained outside and talked to the two men through the driver’s side window. Augustine asked Teague whether he was Patterson’s partner, and Teague responded affirmatively. Augustine also expressed some concern about Patterson’s ability to obtain the additional $17,500 in a few days. Teague then told Augustine not to worry, that Patterson was trustworthy.

When Augustine asked to see the money Patterson had agreed to bring, Patterson opened a bag and handed him envelopes containing money. Augustine testified that when Patterson opened the bag to remove the envelopes he also removed a handgun from the bag and put it on the seat between himself and Teague. However, according to Patterson, who testified for the defense, Patterson had removed the handgun from the bag and placed it on the seat before they entered the parking lot. Augustine then invited Patterson to accompany him to his car to inspect the marijuana. Augustine further testified that Patterson and Teague discussed how they would transfer the marijuana from Augustine’s car to the truck. Patterson got out of the truck to follow Augustine to his car, leaving the handgun on the seat. Augustine then gave a signal, and Patterson and Teague were arrested.

A federal grand jury indicted Patterson and Teague on charges of conspiring to possess marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1) and 846, attempting to possess marijuana with intent to distribute, id., and carrying a firearm during the commission of a drug trafficking crime, 18 U.S.C. § 924(c).² Patterson entered into a plea agreement, but Teague proceeded to trial, represented by Stephanie Kearns, Director of the Federal Public Defender Program for the Northern District of Georgia. On November 28, 1988, after a two-day trial, a jury' convicted Teague of the attempt to possess marijuana with intent to distribute and the firearm charges, but acquitted him of the conspiracy charge.

Then on December 2, 1988, Teague filed a motion for new trial, claiming that he had been denied his constitutional right to testify at trial on his own behalf. The district court held an evidentiary hearing on this motion on February 3, 1989.

At the evidentiary hearing, Teague’s counsel testified that Teague had made his desire to testify known to her prior to trial. For that reason, she conducted a mock direct and cross-examination with Teague in her office during the week before trial. Counsel testified that it was part of her normal practice to discuss with her clients whether they would testify and that she probably explained to Teague at this time that whether he would testify ultimately would be his decision. According to counsel, Teague had difficulty maintaining his composure during the practice; he cried while she was asking him questions and would frequently rush to answer before she finished the question. Counsel then advised Teague that in her opinion it would be better if he did not testify. Although she felt the jury would perceive him as “truthful, open, and very sincere,” she was afraid that he would not listen carefully to the questions being asked and therefore easily could be manipulated by the prosecution on cross-examination. However, no final decision on whether Teague would testify was reached at that time. Counsel testified that they intentionally left the question open until it was clear if Patterson would be testifying in Teague’s defense. She felt that if Patterson testified there would be little reason for Teague to testify.

During the trial, Teague several times asked counsel when he would be testifying. At that point, because it was clear that Patterson would be testifying for the defense, she told Teague to wait and see what Patterson said. Patterson testified that Teague was not involved in the deal and that he did not tell Teague about the quantity of “herbal” or the amount of money involved. According to Patterson, he wanted Teague to accompany him as protection and he told Augustine that Teague was his partner only because he was afraid Augustine would back out if he knew that someone who was not involved in the deal was present. Patterson further testified that other than saying that Patterson was good for the money Teague did not speak to Augustine. However, Patterson also testified that he took his gun out of the bag and put it on the seat between them long before they arrived at the parking lot, so Teague must have been aware of it. Teague was very concerned about this last testimony, pulling on counsel’s sleeve and whispering, “That’s not true,” and asking when he was going to have a chance to tell his side of the story. At that time, counsel did not think the conflicting testimony about the gun was significant, and told Teague not to worry about it. The defense rested after Patterson testified, without the testimony of Teague.

At some point after the defense rested but before closing arguments, Teague again' asked when he would testify, and counsel again discussed it with him.³ During that conversation, she felt that Teague was just letting her know. that he was willing to testify, if necessary. According to counsel, Teague was concerned about Patterson’s testimony about the gun. Counsel testified that she told him that it was not necessary for him to testify because agent Augustine had contradicted Patterson’s testimony about the gun. Teague did not persist, and counsel testified that at the time she rested the defense case, she felt that Teague had assented to the decision not to put him on the stand. No motion was made to reopen the defense case to permit Teague to testify.

Closing arguments were made the next day, and the jury retired to deliberate, ultimately acquitting Teague of conspiracy, but convicting him of attempt to possess marijuana with intent to distribute and carrying a firearm during a drug trafficking crime. Sometime after this verdict was rendered, however, Teague began to call his counsel at home late at night. He was very distressed and repeatedly asked her when he would get a chance to tell his side of the story. Counsel then became very concerned that she may not have made it clear to Teague that the choice of whether to testify belonged to him, not her, and for that reason she filed the motion for new trial.⁴

Teague also testified at the evidentiary hearing on his motion for new trial. He remembered discussing with counsel whether he would testify, and that she advised him not to testify, although he could not remember if she told him the reason why. He also testified that counsel never told him that she would not allow him to testify.

Then, at the court’s request, Teague gave his version of what happened, i.e., what he would have testified to had he been called to the stand. Teague testified that he thought that the third time he and Patterson went out it was to buy a drill bit that Teague needed. When Teague got in the truck, Patterson told him that he needed to stop to “check on some herbal.” They pulled into the restaurant parking lot and the agent asked Patterson if he had the money. Patterson responded affirmatively, handed the agent the bag for the agent to count it, and the agent said, “The stuff is in the car.” Teague testified that marijuana was never mentioned, and that although he knew Patterson smoked marijuana, he did not know what Patterson meant by “herbal.” Teague further testified that when the agent asked Patterson if Teague was his partner, Teague just nodded his head “like hello” and never said anything. Patterson then took the gun out of the bag and put it on the seat, got out of the truck, and walked about half way across the parking lot where he was arrested.

After the evidentiary hearing, the district court issued a detailed order denying Teag-ue’s motion for new trial. The court found that “the evidence fail[ed] to show that the Defendant’s will was ‘overborne’ by his counsel. The Defendant was advised of his right to testify, was advised that he should not exercise that right, and did not protest.” ⁵ The court therefore found no violation of Teague’s right to testify. The district court also noted that although “trial counsel does have some genuine reservations at this point concerning the advice she gave to her client ... that does not persuade the court that counsel’s decision was ineffective” because the reasons she gave for advising him not to testify were good, “especially when the advice was given following careful assessment of the client as a potential witness.” The district court also found that “the evidence adduced at the hearing failed to show that Teague was prejudiced by failing to testify” because much of his testimony would have duplicated that of Patterson or the DEA agent, and at best “would have assisted him in proving what he did not know in advance, not once he arrived on the scene.” As Teague was acquitted of the conspiracy charge, but convicted of the attempt and firearms charges, the court reasoned that this evidence would not have greatly aided his defense.

DISCUSSION

Teague challenges both his convictions and the denial of his motion for new trial. First, Teague argues that the evidence was insufficient to support convictions for attempted possession of marijuana with intent to distribute and for use of a firearm during the commission of a drug trafficking crime. Further, Teague argues that the district court should have granted his motion for new trial because his right to testify was violated when counsel rested the defense case without calling him as a witness, despite his repeated requests to testify.

Sufficiency of the Evidence

Teague argues that the evidence presented at trial was insufficient to convict him either of attempt to possess marijuana with intent to distribute or of use of a firearm during a drug trafficking crime. The original panel of this court reviewed the evidence presented on both of these charges and found it sufficient to support the jury’s verdict. United States v. Teague, 908 F.2d 752, 756 (11th Cir.1990). We agree, and reinstate the discussion of this claim in the original panel opinion as the opinion of this court.

Right to Testify

Teague also argues that his attorney deprived him of his constitutional right to testify in his own behalf when she rested the defense case without calling him to the stand, despite his repeated indications that he wanted to testify. The government responds that Teague waived his right to testify either because he did not affirmatively assert that right during his trial or because he knew of his right to testify yet acquiesced in his attorney’s decision not to call him as a witness.

It is clear that a criminal defendant has a constitutional right to testify in his own behalf at his trial. Although historically criminal defendants were prohibited from testifying because of their interest in the outcome of the trial, that view has long since been abandoned.⁶ Indeed, the United States Supreme Court has recognized that there is “no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the prosecution’s case,” Ferguson v. Georgia, 365 U.S. 570, 582, 81 S.Ct. 756, 763, 5 L.Ed.2d 783 (1961), and that “[i]t is now accepted ... that an accused has a right ... to testify on his own behalf.” Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975).

The constitutional stature of this right was expressly recognized by the Supreme Court in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). In Rock, the Court considered whether “a criminal defendant’s right to testify may be restricted by a state rule that excludes her posthypnosis testimony.” Id. at 53, 107 5.Ct. at 2709. As a preliminary matter, the Court discussed the development of the right to testify. Although the right to testify is not explicitly stated in the Constitution, the Supreme Court noted that it “has sources in several provisions of the Constitution.” Id. at 51, 107 S.Ct. at 2708. The Court first cited the due process clause of the Fourteenth Amendment, stating that “the right to be heard, which is so essential to due process in an adversary system of adjudication, [can] be vindicated only by affording a defendant an opportunity to testify before the factfinder.” Id. at 51 n. 8, 107 S.Ct. at 2709 n. 8. The Court also cited to Justice Clark’s concurring opinion in Ferguson v. Georgia for the proposition that the Fourteenth Amendment secures the “right of a criminal defendant to choose between silence and testifying in his own behalf.” 365 U.S. at 602, 81 S.Ct. at 773 (Clark, J., concurring). Next, the Court found support in the compulsory process clause of the Sixth Amendment, stating that “[l]ogically included in the accused’s right to call witnesses whose testimony is ‘material and favorable to his defense,’ is a right to testify himself, should he decide it is in his favor to do so.” Rock, 483 U.S. at 52, 107 S.Ct. at 2709 (citation omitted). Moreover, the Court recognized that under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Sixth Amendment includes the right of self-representation, and that “[a] defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.” Rock, 483 U.S. at 52, 107 S.Ct. at 2709. Lastly, the Court found that the right to testify “is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Id. With this discussion, the Court put to rest any doubt that a criminal defendant has a constitutional right to testify in his own defense.

However, this right is not unlimited. For example, the right to testify clearly does not include the right to commit perjury. See Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Nevertheless, as the Supreme Court stated in Rock, “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.” 483 U.S. at 55-56, 107 S.Ct. at 2711-12; cf. Chambers v. Mississippi, 410 U.S. 284, 295, 302, 93 S.Ct. 1038, 1045, 1049, 35 L.Ed.2d 297 (1973) (The defendant’s right to present witnesses in his own defense is subject to other legitimate interests in the criminal trial process such as the established rules of evidence and procedure.)

In the case at bar, however, Teague claims that he was prevented from testifying, not by the government or the court, but by his own lawyer. We are thus called upon to determine whether defense counsel is empowered to waive defendant’s right to testify.

Criminal defendants possess essentially two categories of constitutional rights: those which are waivable by defense counsel on the defendant’s behalf, and those which are considered “fundamental” and personal to defendant, waivable only by the defendant. Generally included in the former are matters which primarily involve trial strategy and tactics. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Examples of such matters are what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pre-trial motions should be filed. See 1 Standards for Criminal Justice, Standard 4-5.2 comment (2d ed. 1980). Examples of fundamental decisions which only the defendant is empowered to waive are entry of a guilty plea, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), waiver of a jury trial, Adams v. United States ex rel. McCann, 317 U.S. 269, 277-78, 63 S.Ct. 236, 240-41, 87 L.Ed. 268 (1942), and whether to pursue an appeal, see Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963).

In Rock, the Supreme Court did not need to decide whether the constitutional right to testify was fundamental in character, and therefore personal to the defendant, or whether it could be waived by the defense attorney. However, the- Court in Rock emphasized that the right to testify “is one of the rights that ‘are essential to due process of law in a fair adversary process,’ ” 483 U.S. at 51, 107 S.Ct. at 2708 (quoting Faretta, 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15), and that it is “[e]ven more fundamental to a personal defense than the right of self-representation,” id. at 52, 107 S.Ct. at 2709. Moreover, the Court noted that it has “[o]n numerous occasions ... proceeded on the premise that the right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right.” Id. at 53 n. 10, 107 S.Ct. at 2710 n. 10 (emphasis added). Perhaps the most telling of these occasions cited by the Court is Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983), in which the Court stated in dicta that “the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” (Emphasis added.) Thus, in Rock, the Supreme Court has clearly and strongly indicated that the constitutional right to testify should be treated as fundamental.

Although the Supreme Court has not expressly addressed this question, this is not the first time it has come before this court. In Wright v. Estelle, 572 F.2d 1071 (5th Cir.) (en banc), cert. denied, 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1078), the former Fifth Circuit was presented with the issue of whether a defendant has a fundamental right to testify. During Wright’s trial, a conflict arose between Wright and his court-appointed counsel about whether Wright would testify in his own defense. The lead defense counsel told Wright that he would no longer represent him if Wright elected to testify. The plurality affirmed the panel opinion which assumed without deciding that there was a constitutional and fundamental right to testify, but found that in that case the error was harmless because the evidence was overwhelming. Wright v. Estelle, 549 F.2d 971 (5th Cir.1977) (panel opinion). Judges Thornberry, Clark, Roney, Gee, and Hill filed a special concurrence, arguing that the decision regarding whether the defendant will testify is essentially strategic and best delegated to defense counsel:-

The scope of the delegation does not turn on the importance of the decision — the attorney frequently makes judgments affecting the very life of the defendant. The question here is twofold: who is in a better position to judge trial strategy and who is in a better position to ensure the best interests of the defendant.

Wright, 572 F.2d at 1073 (Thornberry, Clark, Roney, Gee, & Hill, JJ., specially concurring). The concurrence distinguished the decision on whether to plead guilty or not guilty from the decision on whether to testify, stating that the decision on what to plead “goes to the very existence of a trial. To deny the defendant control over this decision could be tantamount to denying the defendant a trial. Here, of course, there is a trial and the decision made by the attorney goes merely to strategy.” Id. at 1073 n. 3.

Judge Godbold, joined by Judges Goldberg and Tjoflat, filed an eloquent dissent arguing that the right to testify is a fundamental constitutional right that cannot be waived by defense counsel.

In making the choice on whether to testify, just as the choice on whether to represent himself, the defendant elects whether to become an active participant in the proceeding that affects his life and liberty and to inject his own action, voice and personality into the process to the extent the system permits.

... To deny a defendant the right to tell his story from the stand dehumanizes the administration of justice. I cannot accept a decision that allows a jury to condemn to death or imprisonment a defendant who desires to speak, without ever having heard the sound of his voice.

Id. at 1078 (Godbold, J., dissenting).

More recently, this question was addressed by a panel of this court in United States v. Scott, 909 F.2d 488 (11th Cir.1990) (Fay and Johnson, Circuit Judges, and Gibson, Senior Circuit Judge for the Eighth Circuit sitting by designation). During Scott’s trial, defense counsel moved to withdraw from the case but would not give the reasons for this request to the trial court. The court assumed that this was because Scott desired to testify but the attorney intended to keep him off the stand. Rather than ruling on this motion, the court gave Scott a choice: either proceed with counsel, but relinquish the right to testify, or proceed pro se. This court reviewed the development of the right to testify and concluded that it was now a recognized fundamental constitutional right, personal to the defendant, which cannot be waived by defense counsel. This court then found that the trial judge had improperly forced the defendant to choose between two constitutional rights, the right to counsel and the right to testify, and therefore vacated defendant’s conviction and remanded for a new trial.

We now reaffirm that a criminal defendant has a fundamental constitutional right to testify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or by defense counsel.

Under the Supreme Court’s reasoning in Rock, the right to testify essentially guarantees the right to -.ultimately choose whether or not to testify. The Supreme Court stated that the right to testify is “a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Rock, 483 U.S. at 52, 107 S.Ct. at 2709. The Court then quoted from Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971): “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” A criminal defendant clearly cannot be compelled to testify by defense counsel who believes it would be in the defendant’s best interest to take the stand. It is only logical, as the Supreme Court has recognized, that the reverse also be true: A criminal defendant cannot be compelled to remain silent by defense counsel.

The decision whether a criminal defendant should take the witness stand in his own trial unquestionably has tremendous' strategic importance. Nevertheless, the mere fact that such a decision involves trial strategy does not itself mandate that the decision ultimately rest with defense counsel.⁷ Nor does our conclusion place the right to testify in conflict with the right to counsel. Defense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify, the strategic implications of each choice, and that it is ultimately for the defendant himself to decide.⁸ This advice is crucial because there can be no effective waiver of a fundamental constitutional right unless there is an “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (emphasis added). Moreover, if counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify.⁹ The defendant can then make the choice of whether to take the stand with the advice of competent counsel.

It is important to remember that while defense counsel serves as an advocate for the client, it is the client who is the master of his or her own defense. See Mulligan v. Kemp, 771 F.2d 1436, 1441 (11th Cir.1985) (Trial counsel “is still only an assistant to the defendant and not the master of the defense.”), cert. denied, 480 U.S. 911, 107 S.Ct. 1358, 94 L.Ed.2d 529 (1987); Model Rules of Professional Conduct rule 1.2 & comment. When an individual stands accused of criminal conduct, the choice to tell his side of the story has ramifications far beyond the more immediate goal of obtaining an acquittal. It is, after all, the defendant’s day in court. The decision to take the stand in his own defense, like the decision to plead not-guilty and proceed to trial, provides the defendant with an opportunity directly to meet the charges against him. “The wisdom or unwisdom of the defendant’s choice does not diminish his right to make it.” Wright, 572 F.2d at 1079 (Godbold, J., dissenting). By exercising his constitutional right to the assistance of counsel, a defendant does not relinquish his right to set the parameters of that representation. Any other conclusion would be “to imprison a man in his privileges and call it the Constitution.” Adams, 317 U.S. at 280, 63 S.Ct. at 242.

We also note that our conclusion is consistent with the generally accepted practice within the bar. For example, the American Bar Association’s Standards for Criminal Justice provide:

(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are:

(i) what plea to enter;

(ii) whether to waive jury trial; and

(iii) whether to testify in his or her own behalf.

1 Standards for Criminal Justice Standard 4-5.2(a) (2d ed. 1980) (emphasis added).¹⁰ The commentary to this provision states that “because of the fundamental nature of these three decisions, so crucial to the accused’s fate, the accused must make the decisions.” Id. commentary. Further, Rule 1.2(a) of the American Bar Association’s Model Rules of Professional Conduct states that:

(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued.... In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(Emphasis added.) Therefore, our decision places no greater responsibility on defense counsel than is already required by the ethical standards of the legal profession.

Because it is primarily the responsibility of defense counsel to advise the defendant of his right to testify and thereby to ensure that the right is protected, we believe the appropriate vehicle for claims that the defendant’s right to testify was violated by defense counsel is a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Strickland, the Supreme Court defined two requirements for a claim of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. at 2064.

The first prong of this test requires that defendant show that counsel’s performance “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2065. Where the defendant claims a violation of his right to testify by defense counsel, the essence of the claim is that the action or inaction of the attorney deprived the defendant of the ability to choose whether or not to testify in his own behalf. In other words, by not protecting the defendant’s right to testify, defense counsel’s performance fell below the constitutional minimum, thereby violating the first prong of the Strickland test. For example, if defense counsel refused to accept the defendant’s decision to testify and would not call him to the stand, counsel would have acted unethically to prevent the defendant from exercising his fundamental constitutional right to testify. Alternatively, if defense counsel never informed the defendant of the right to testify, and that the ultimate decision belongs to the defendant, counsel would have neglected the vital professional responsibility of ensuring that the defendant’s right to testify is protected and that any waiver of that right is knowing and voluntary. Under such circumstances, defense counsel has not acted “ ‘within the range of competence demanded of attorneys in criminal cases,’ ” and the defendant clearly has not received reasonably effective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)).

In the case at bar, the district court made specific findings after an evidentiary hearing on this issue.¹¹ “We defer to the district court’s findings of fact absent a clearly erroneous determination but apply our own judgment as to whether the conduct determined by these facts constitutes ineffective assistance of counsel.” Wiley v. Wainwright, 793 F.2d 1190, 1193 (11th Cir.1986). The district court found that “the evidence fail[ed] to show that the Defendant’s will was ‘overborne’ by his counsel. The Defendant was advised of his right to testify, was advised that he should not exercise that right, and did not protest.” Upon review of the record of the evidentia-ry hearing, we cannot say that these findings of fact are clearly erroneous.

Moreover, although at the time of the evidentiary hearing counsel clearly had misgivings about whether Teague had understood that he was choosing not to testify, a review of ineffective assistance of counsel claims must be made from the perspective of defense counsel, taking into account all circumstances of the case as they were known to counsel at the time of the representation. Porter v. Wainwright, 805 F.2d 930 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). Teague’s counsel clearly had advised him that it would be unwise and unnecessary for him to testify. At the evidentiary hearing, counsel testified that when she rested the defense case, she believed that Teague had assented or acceded to her recommendation. We find that counsel’s performance was not constitutionally deficient. Because the defendant has failed to meet the first prong of Strickland, we need not address whether Teague’s defense was prejudiced in this case.¹²

CONCLUSION

In summary, we hold that a criminal defendant has a fundamental constitutional right to testify on his behalf, that this right is personal to the defendant, and that the right cannot be waived by defense counsel. Where the defendant claims that this right was violated by defense counsel, this claim is properly framed as a claim of ineffective assistance of counsel. For the reasons set forth above, we find that defense counsel was not ineffective in this case, and AFFIRM the judgment of the district court.

1 . This order vacated the previous panel’s opinion. United States v. Teague, 932 F.2d 899 (11th Cir.1991).

2 . 18 U.S.C. § 924(c) provides in pertinent part:

(c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years....

(2) For purposes of this subsection, the term "drug trafficking crime" means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)_

3 . Counsel testified initially that this conversation was at the end of the defense case, but later said that it very possibly could have been after the defense rested. The district court found that this conversation occurred after the defense rested.

4 . In that motion, Ms. Kearns requested that other counsel be appointed to represent Teague on the motion for new trial. The court then appointed William Morrison to represent Teag-ue.

5 . The district court also stated that “[w]hile there was no specific evidence adduced on this point, the court is confident that Ms. Kearns, a very experienced criminal defense attorney ... knew that the court would likely grant a motion to reopen prior to beginning of the arguments of counsel.”

6 . For an historical overview of the recognition of the right to testify, see generally Timothy P. O’Neill, Vindicating the Defendant’s Constitutional Right to Testify at Criminal Trial: The Need for An On-the-Record Waiver, 51 U.Pitt. L.Rev. 809 (1990); Seth Dawson, Comment, Due Process v. Defense Counsel’s Unilateral Waiver of the Defendant’s Right to Testify, 3 Hastings Const.L.Q. 517 (1976).

7 . If that were true, the decision to waive a jury trial would logically also rest with defense counsel, as it involves defense strategy at least as much as the decision whether the defendant will testify. However, the Supreme Court has clearly stated that the right to a jury trial in a criminal case cannot be waived by defense counsel. Adams v. United States ex rel. McCann, 317 U.S. 269, 277-78, 63 S.Ct. 236, 240-41, 87 L.Ed. 268 (1942).

8 . We believe that it would be inappropriate to require the trial court to discuss this choice with the defendant. Such a requirement would unnecessarily intrude into the attorney-client relationship and could unintentionally influence the defendant in his or her choice. See United States v. Wagner, 834 F.2d 1474, 1483 (9th Cir.1987).

9 . There are good tactical reasons why it may not be best for the defendant to testify in some circumstances. Some examples might be if the defendant might provide evidence of missing elements of the crime on cross-examination, if the defendant might be prejudiced by revelation of prior convictions, or if the prosecutor might impeach the defendant using a prior inconsistent statement.

10 . In Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (citation omitted), the Supreme Court noted that “[prevailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable" representation by an attorney.

11 . This court will generally entertain claims for ineffective assistance of counsel only on collateral review because such claims usually require factual findings best made in an evidentiary hearing. See United States v. Arango, 853 F.2d 818, 823 (11th Cir.1988); United States v. Souder, 782 F.2d 1534, 1539-40 (11th Cir.1986). However, in this case the district court held an evidentiary hearing on Teague’s motion for new trial, and we have the benefit of that court’s factual findings in this matter. At that hearing, Teague was represented by new defense counsel and both Teague and his trial counsel testified. Under these circumstances, we choose to address the claim for ineffective assistance of counsel at this time.

12 . But see Nichols v. Butler, 953 F.2d 1550 (11th Cir.1992).