USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10733 Non-Argument Calendar ________________________
D.C. Docket No. 2:19-cr-00117-JES-NPM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH R. JACKSON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 1, 2021)
Before NEWSOM, LAGOA and BRASHER, Circuit Judges.
PER CURIAM: USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 2 of 9
Kenneth R. Jackson, Jr., appeals his conviction and sentence for knowingly
failing to surrender for service of his sentence, in violation of 18 U.S.C. §§
3146(a)(2), (b)(1)(A)(i), after he represented himself during his trial and
sentencing. On appeal and with the benefit of counsel, Jackson argues that the
district court erred in two ways. First, he says that the district court’s failure to
inquire about his mental health ran afoul of the Supreme Court’s decision in
Indiana v. Edwards, 554 U.S. 164 (2008), and thereby violated his rights under the
Sixth Amendment. Second, he says that the district court’s failure to order a
competency hearing sua sponte violated his rights under the Fifth Amendment’s
Due Process Clause and 18 U.S.C. § 4241(a). After careful review, we affirm.
I
A
Jackson first argues that the district court should have asked him specifically
about his mental-health history before allowing him to proceed pro se. The
Supreme Court long ago held that the Sixth Amendment protects the right of
criminal defendants to represent themselves, see Faretta v. California, 422 U.S.
806, 819 (1975), though it has since explained that “the Constitution permits
judges to take realistic account of the particular defendant’s mental capacities by
asking whether a defendant who seeks to conduct his own defense at trial is
mentally competent to do so,” Indiana v. Edwards, 554 U.S. 164, 177–78 (2008).
2 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 3 of 9
On that rationale, the Edwards Court held that a State may insist that a defendant
who isn’t mentally competent to conduct his own defense proceed to trial with
counsel, even if he’d rather represent himself. 554 U.S. at 167. Based on
Edwards, Jackson argues that the district court should have inquired as to his
mental health and expressly determined whether he was competent to conduct trial
proceedings by himself.
Because this issue is raised for the first time on appeal, we review for plain
error. United States v. Presendieu, 880 F.3d 1228, 1237 (11th Cir. 2018). Plain
error occurs where: (1) there is an error; (2) that is plain; (3) that affects the
defendant’s substantial rights; and (4) that seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. at 1237–38. To qualify as plain
error, an error “error must be plain now, in light of recent Supreme Court and
Eleventh Circuit developments.” United States v. Smith, 459 F.3d 1276, 1283
(11th Cir. 2006). We see no such error here.
Jackson has pointed to no decision from this Court or the Supreme Court
demonstrating that the district court needed to make a more specific inquiry into
Jackson’s mental health. He relies on the Court’s decision in Edwards, but it
cannot bear the weight he would place on it. Jackson contends that Edwards added
“the requirement that the court determine a defendant was mentally competent to
3 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 4 of 9
represent himself at trial before permitting him to do so.” Appellant’s Br. at 12.
That is incorrect.
To be sure, the Edwards Court explained that the baseline level of
competency required to stand trial alone may be insufficient to demonstrate a
defendant’s competence to represent himself, “given the different capacities
needed to proceed to trial without counsel” as opposed to merely assisting counsel.
554 U.S. at 177. But, although the Edwards Court concluded that “the
Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial . . . but who still suffer from severe mental illness
to the point where they are not competent to conduct trial proceedings by
themselves,” it declined to impose “a more specific standard” that would have
required States to deny the right of self-representation to other defendants. Id. at
178 (emphasis added); see also United States v. Posadas-Aguilera, 336 F. App’x
970, 976 n.5 (11th Cir. 2009) (explaining that outside of instances of severe mental
illness, “we concur with our brethren on the Seventh Circuit and read Edwards to
hold that ‘the Constitution may . . . allow the trial judge to block a defendant’s
request to go it alone, but it certainly doesn’t require it.’” (quoting United States v.
Berry, 565 F.3d 385, 391 (7th Cir. 2009) (alterations omitted))).1 Some of
1 Although Edwards dealt with a decision from a state court, we, like other courts, have looked to Edwards for guidance in the context of federal prosecutions as well. See United States v. Garey, 4 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 5 of 9
Jackson’s statements before the district court reflect idiosyncratic views that might
be broadly characterized as part of a “sovereign citizen” ideology, 2 but he hasn’t
contended here that he was or is severely mentally ill, and Edwards simply didn’t
establish the sort of hard-and-fast rule that Jackson suggests it did.
Moreover, the Edwards Court emphasized that “the trial judge . . . will often
prove best able to make more fine-tuned mental capacity decisions, tailored to the
individualized circumstances of a particular defendant.” 554 U.S. at 177. Here,
the district court judge was well-aware of Jackson’s individualized circumstances,
having presided over his initial criminal trial. Furthermore, the district court judge
engaged in an extensive back and forth with Jackson concerning his right to self-
representation and the risks attendant to exercising that right. During that
exchange, Jackson stated that he had represented himself in two prior actions, and
that, after being warned about the nature of the charges against him, the potential
penalty he faced, and the difficulties of self-representation, he “100 percent”
wanted to represent himself. Having heard from Jackson and discussed the matter
with Jackson’s then-attorney and the attorney for the government, the district court
540 F.3d 1253, 1261, 1268 n.9 (11th Cir. 2008) (en banc); see also United States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009).
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USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10733 Non-Argument Calendar ________________________
D.C. Docket No. 2:19-cr-00117-JES-NPM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH R. JACKSON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 1, 2021)
Before NEWSOM, LAGOA and BRASHER, Circuit Judges.
PER CURIAM: USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 2 of 9
Kenneth R. Jackson, Jr., appeals his conviction and sentence for knowingly
failing to surrender for service of his sentence, in violation of 18 U.S.C. §§
3146(a)(2), (b)(1)(A)(i), after he represented himself during his trial and
sentencing. On appeal and with the benefit of counsel, Jackson argues that the
district court erred in two ways. First, he says that the district court’s failure to
inquire about his mental health ran afoul of the Supreme Court’s decision in
Indiana v. Edwards, 554 U.S. 164 (2008), and thereby violated his rights under the
Sixth Amendment. Second, he says that the district court’s failure to order a
competency hearing sua sponte violated his rights under the Fifth Amendment’s
Due Process Clause and 18 U.S.C. § 4241(a). After careful review, we affirm.
I
A
Jackson first argues that the district court should have asked him specifically
about his mental-health history before allowing him to proceed pro se. The
Supreme Court long ago held that the Sixth Amendment protects the right of
criminal defendants to represent themselves, see Faretta v. California, 422 U.S.
806, 819 (1975), though it has since explained that “the Constitution permits
judges to take realistic account of the particular defendant’s mental capacities by
asking whether a defendant who seeks to conduct his own defense at trial is
mentally competent to do so,” Indiana v. Edwards, 554 U.S. 164, 177–78 (2008).
2 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 3 of 9
On that rationale, the Edwards Court held that a State may insist that a defendant
who isn’t mentally competent to conduct his own defense proceed to trial with
counsel, even if he’d rather represent himself. 554 U.S. at 167. Based on
Edwards, Jackson argues that the district court should have inquired as to his
mental health and expressly determined whether he was competent to conduct trial
proceedings by himself.
Because this issue is raised for the first time on appeal, we review for plain
error. United States v. Presendieu, 880 F.3d 1228, 1237 (11th Cir. 2018). Plain
error occurs where: (1) there is an error; (2) that is plain; (3) that affects the
defendant’s substantial rights; and (4) that seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. at 1237–38. To qualify as plain
error, an error “error must be plain now, in light of recent Supreme Court and
Eleventh Circuit developments.” United States v. Smith, 459 F.3d 1276, 1283
(11th Cir. 2006). We see no such error here.
Jackson has pointed to no decision from this Court or the Supreme Court
demonstrating that the district court needed to make a more specific inquiry into
Jackson’s mental health. He relies on the Court’s decision in Edwards, but it
cannot bear the weight he would place on it. Jackson contends that Edwards added
“the requirement that the court determine a defendant was mentally competent to
3 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 4 of 9
represent himself at trial before permitting him to do so.” Appellant’s Br. at 12.
That is incorrect.
To be sure, the Edwards Court explained that the baseline level of
competency required to stand trial alone may be insufficient to demonstrate a
defendant’s competence to represent himself, “given the different capacities
needed to proceed to trial without counsel” as opposed to merely assisting counsel.
554 U.S. at 177. But, although the Edwards Court concluded that “the
Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial . . . but who still suffer from severe mental illness
to the point where they are not competent to conduct trial proceedings by
themselves,” it declined to impose “a more specific standard” that would have
required States to deny the right of self-representation to other defendants. Id. at
178 (emphasis added); see also United States v. Posadas-Aguilera, 336 F. App’x
970, 976 n.5 (11th Cir. 2009) (explaining that outside of instances of severe mental
illness, “we concur with our brethren on the Seventh Circuit and read Edwards to
hold that ‘the Constitution may . . . allow the trial judge to block a defendant’s
request to go it alone, but it certainly doesn’t require it.’” (quoting United States v.
Berry, 565 F.3d 385, 391 (7th Cir. 2009) (alterations omitted))).1 Some of
1 Although Edwards dealt with a decision from a state court, we, like other courts, have looked to Edwards for guidance in the context of federal prosecutions as well. See United States v. Garey, 4 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 5 of 9
Jackson’s statements before the district court reflect idiosyncratic views that might
be broadly characterized as part of a “sovereign citizen” ideology, 2 but he hasn’t
contended here that he was or is severely mentally ill, and Edwards simply didn’t
establish the sort of hard-and-fast rule that Jackson suggests it did.
Moreover, the Edwards Court emphasized that “the trial judge . . . will often
prove best able to make more fine-tuned mental capacity decisions, tailored to the
individualized circumstances of a particular defendant.” 554 U.S. at 177. Here,
the district court judge was well-aware of Jackson’s individualized circumstances,
having presided over his initial criminal trial. Furthermore, the district court judge
engaged in an extensive back and forth with Jackson concerning his right to self-
representation and the risks attendant to exercising that right. During that
exchange, Jackson stated that he had represented himself in two prior actions, and
that, after being warned about the nature of the charges against him, the potential
penalty he faced, and the difficulties of self-representation, he “100 percent”
wanted to represent himself. Having heard from Jackson and discussed the matter
with Jackson’s then-attorney and the attorney for the government, the district court
540 F.3d 1253, 1261, 1268 n.9 (11th Cir. 2008) (en banc); see also United States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009). 2 Although Jackson disputed the use of the term “sovereign citizen” in reference to him, his statements to the effect that he was “Karim Masudah Bey” and a part “of the Cherokee Nation of Moors” indicated that he relied in some sense on tribal sovereign immunity as a source of his own “sovereign immunity at law.” Such arguments, courts have recognized, overlap with those put forward by purportedly “sovereign citizens.” Cf. United States v. Coleman, 871 F.3d 470, 476 (6th Cir. 2017) (collecting cases). 5 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 6 of 9
concluded that Jackson had knowingly and voluntarily waived his right to counsel.
See United States v. Stanley, 739 F.3d 633, 645–49 (11th Cir. 2014).
Given the state of the law and the record before us, we cannot say that the
district court plainly erred in that respect.
B
Jackson also argues that the district court’s failure to order a competency
hearing sua sponte violated his right to due process under the Fifth Amendment
and ran afoul of 18 U.S.C. § 4241(a), which sometimes requires district courts to
order such hearings. This argument, like his challenge based on Edwards, relies on
the statements Jackson made that reflect his views as an adherent of what one
might call a “sovereign citizen” ideology. Our review is for abuse of discretion.
United States v. Perkins, 787 F.3d 1329, 1339 (11th Cir. 2015).3 We find none
here.
3 Jackson assumed plain-error review applies, but as the government notes, although the issue has been raised for the first time on appeal, this Court applies abuse-of-discretion review to the issue of competency to stand trial. For that proposition, it points to United States v. Williams, 468 F.2d 819, 820 (5th Cir. 1972), a decision from the Old Fifth that binds us, see Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). We acknowledge that Williams involved a statutory claim based on 18 U.S.C. § 4244, see 468 F.2d at 819, which was eventually replaced by 18 U.S.C. § 4241, see United States v. Izquierdo, 448 F.3d 1269, 1278 n.8 (11th Cir. 2006), but we seem to have generally applied abuse-of-discretion review to the broader question of competency to stand trial, see, e.g., United States v. Cometa, 966 F.3d 1285, 1291 (11th Cir. 2020). In that much, we appear to have sided with the majority of our sister circuits. See United States v. Lindsey, 339 F. App’x 956, 960 n.4 (11th Cir. 2009) (collecting cases). 6 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 7 of 9
We recently surveyed this territory in United States v. Cometa, 966 F.3d
1285 (11th Cir. 2020), cert. denied, 141 S. Ct. 1433 (2021). To start, the Due
Process Clause forbids defendants from being tried or convicted while
incompetent. Id. at 1291. The Due Process Clause also guarantees a right to a
competency hearing when “the court learns of information that raises a bona fide
doubt regarding the defendant’s competence.” Id. (quotation marks omitted).
Likewise, 18 U.S.C. § 4241(a) requires a district court to order sua sponte a
competency hearing if it “has reasonable cause to believe that the defendant [is not
competent].” Id. (quotation marks omitted); 18 U.S.C. § 4241(a). The bona-fide-
doubt standard satisfies the reasonable-cause requirement in § 4241(a). Cometa,
966 F.3d at 1291. To determine whether a hearing is required, courts consider
three factors: (1) “prior medical opinion regarding the defendant’s competence;”
(2) “evidence of the defendant’s irrational behavior;” and (3) “his demeanor at
trial.” Id. (quotation marks omitted). “‘[T]here are, of course, no fixed or
immutable signs which invariably indicate the need for [a hearing],’ so courts
‘must consider the aggregate of evidence.’” Id.
Considering the aggregate of evidence here, we conclude that the district
court didn’t abuse its discretion by not conducting a competency hearing sua
sponte. As to prior medical opinion concerning Jackson’s competence, we have
little to go on. We do think it noteworthy that neither Jackson’s first (and now
7 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 8 of 9
former) attorney in this case nor Jackson’s counsel in his immediately antecedent
criminal trial ever raised the issue of his competence. See Watts v. Singletary, 87
F.3d 1282, 1288 (11th Cir. 1996) (“[F]ailure of defense counsel to raise the
competency issue at trial, while not dispositive, is evidence that the defendant’s
competency was not really in doubt . . . .”). More importantly, we have little
evidence of irrational behavior on Jackson’s part, and his demeanor at trial and
sentencing gives us no reason to second-guess the district court on this issue.
Consider Jackson’s efforts in representing himself. During the jury selection
process, Jackson exercised several preemptory challenges and made one successful
challenge for cause. He presented an opening statement in which he asked the jury
to keep an open mind and examine the evidence before it rather than
unquestioningly accepting the government’s account, and he cross-examined
several witnesses. Jackson also moved for a judgment of acquittal, and after that
was denied, he presented a closing argument. At sentencing, he acknowledged
having read and reviewed the Presentence Report, and he raised a number of
objections to it. Some of those objections proved successful. And Jackson also
raised a question as to whether he would have to serve his newly imposed term of
supervised release consecutively to the term of supervised release imposed as a
result of his prior conviction. After some discussion, the court decided to have the
new term of supervised release run concurrently with the previously imposed term
8 USCA11 Case: 20-10733 Date Filed: 06/01/2021 Page: 9 of 9
of supervised release. And throughout proceedings, Jackson was mostly polite and
coherent in his dealings with others. As such, his behavior and his demeanor don’t
seem to have suggested incompetence.
Considering the aggregate of the evidence, then, we conclude that the district
court had no reason for bona fide doubt as to Jackson’s competence. Cometa, 966
F.3d at 1291. Accordingly, we affirm.4
AFFIRMED.
4 Following the conclusion of briefing in this appeal, Jackson’s attorney twice moved to withdraw as counsel. We deny those motions as moot. 9