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Precedential or Non-Precedential: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, 

, 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, 

, 1089 (3d Cir. 1989); 

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, 

, 171
(1975). The conviction of a legally incompetent defendant
violates due process. Pate v. Robinson, 

, 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. 

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 

-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, 

, 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, 

, 1437 (9th
Cir. 1996) (stating that a finding of "reasonable cause"
dictates whether a court conducts a competency hearing);
United States v. Lebron, 

, 32 (1st Cir.) (same),
cert. denied, 

(1996); United States v. Nichols,

, 414 (2d Cir. 1995) (same); United States v.
Morgano, 

, 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, 

, 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.' " 

(quoting Dusky v. United States , 

, 402 (1960)); 

-77; 

; 

; United States v.
Soldevila-Lopez, 

, 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." 

. 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]." 

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, 

, 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." 

supported the Sovie court's
conclusion that the defendant was "a knowing participant
in his 

.

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. 

.
Although the trial record showed that the defendant tended
to become " `extremely agitated' " and incoherent, the
Williams court affirmed the district court's decision. 

Despite the defendant's unruly behavior at trial,
the court of appeals concluded that he was "rational and
able to assist his attorney," 

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." 

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 

(affirming district
court's denial of defendant's motion for psychological
evaluation since defendant was " `lucid,' " " `articulate' " and
" `intelligen[t]' "); 

(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, 

, 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, 

, 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.' " 

(quoting Newfield v. United States, 

, 206 (2d Cir. 1977)); see also 

("It is well-established that some degree of mental illness
cannot be equated with incompetence to stand trial.")
(internal quotation marks and citation omitted); 

(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," 

(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]." 

(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 

. At a change-of-plea
hearing, the defendant threw a pitcher of water at several
case investigators. 

Neither side moved for a

                               11
competency hearing and, pursuant to a plea agreement, the
defendant was sentenced. 

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." 

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." 

States v. Marshall, 

, 450 (2d Cir. 1972)); see also 

(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.' " 

(quoting Hernandez-
Hernandez v. United States, 

, 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, 

, 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, 

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

, 1452 n.1 (11th Cir. 1998) (acknowledging that
right to testify is constitutional), cert. denied, No. 98-5615,

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

, 76 (2d Cir. 1997) (same), cert. denied, 

(1998); Ortega v. O'Leary, 

, 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." 

; 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, 

, 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, 

, 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.' " 

(quoting Washington v. Texas,

, 17-19 (1967)). At times, "the most important
witness for the defense . . . is the defendant himself." 

right to testify is protected by the Fifth
Amendment's guarantee against compelled testimony. 

the privilege to refuse to testify is part and parcel
of the privilege to testify if one wishes to do so. 

The right is personal and can be waived only by the
defendant, not defense counsel. 

;

(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, 

, 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); 

("[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); 

("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. 

; 

; 

.

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 

. 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 

; 

;
Liegakos v. Cooke, 

, 1386 (7th Cir. 1997);
United States v. Ortiz, 

, 1071 (D.C. Cir. 1996);
United States v. McMeans, 

, 163 (4th Cir.
1991) (per curiam); United States v. Edwards, 

, 446-47 (9th Cir. 1990); Siciliano v. Vose, 

,
30 (1st Cir. 1987); United States v. Bernloehr, 

, 752 (8th Cir. 1987); United States v. Janoe, 

, 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, 

, 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 

, 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 

. See United States v. Pennycooke, 

, 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, 

, 1386 (7th Cir. 1997) (holding
that trial court need not ascertain whether defendant has validly waived
right to testify); United States v. Brimberry, 

, 1289-90 (7th
Cir. 1992) (same); 

("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.

(citations omitted). See also Van
De 

(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); 

("[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.

. See also United States v.
Teague, 

, 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.

. 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." 

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 

. 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." 

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, 

, 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); 

(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, 

, 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, 

(U.S. Oct. 5,
1998); Payne v. United States, 

, 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." 

. 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 

. 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, 

, 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, 

,
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,

, 135 (3d Cir. 1997), cert. denied, 

(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, 

(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 

(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,

, 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, 

, 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, 

, 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." 

(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, 

, 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).

. It is well established that any
waiver of the right to counsel must be knowing, voluntary
and intelligent. United States v. Salemo, 

, 218

                               21
(3d Cir. 1995); Government of the Virgin Islands v. James,

, 470 (3d Cir. 1991); McMahon v. Fulcomer,

, 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, 

, 188 (3d Cir.
1982); see also Faretta v. California, 

, 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."

. To forfeit the right to legal
representation, a defendant must engage in "extremely
serious misconduct." 

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 

. 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.

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. 

.

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 

. The district court
concluded that the defendant forfeited his right to counsel
by threatening the life of his attorney. 

(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. 

We concluded that a forfeiture
ruling could not be based entirely on evidence presented at
an ex parte hearing. 

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, 

, 220 (3d Cir. 1995) (quoting United States v. Day, 

, 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, 

(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, 

, 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, 

, 77 (2d Cir. 1997); 

. Moreover,
"[t]he wisdom or unwisdom of the defendant's choice does
not diminish his right to make it." United States v. Teague,

, 1533 (11th Cir. 1992) (quoting Wright v.
Estelle, 

, 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.' "

(citing Faretta v. California, 

, 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, 

, 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 

). 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."

. 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

                                29
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.

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." 

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." 

.

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, 

, 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, 

, 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, 

(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, 

, 261
(7th Cir. 1988) (quoting Johnson v. Zerbst, 

,
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, 

(1992), that had been
decided following his conviction. See Teague v. Lane, 

, 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 

. 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." 

. 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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