USA v. Octavius Lee Durdley

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12160
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OCTAVIUS LEE DURDLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:21-cr-00028-AW-GRJ-1
____________________
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2 Opinion of the Court 22-12160
Before NEWSOM , ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Octavius Durdley appeals his conviction for failure to regis-
ter as a sex offender. First, he argues that the district court abused
its discretion in failing to sua sponte order a competency evaluation
and conduct a competency hearing.1 Second, he contends that the
court plainly erred in removing him from the courtroom at his trial
and sentencing hearing. Upon consideration, we affirm. We ad-
dress each argument in turn.
I
We review a district court’s failure to sua sponte order a
hearing on the defendant’s competency for abuse of discretion.
United States v. Wingo, 789 F.3d 1226, 1236 (11th Cir. 2015). The
1 In a footnote in his brief, Durdley also argues that his waiver of his right to
testify was not knowing, intelligent, and voluntary. The law is clear in our
Circuit that in order to properly raise an issue on appeal, an appellant must,
“plainly and prominently so indicate.” Brown v. United States, 720 F.3d 1316,
1332 (11th Cir. 2013) (internal quotations and citation omitted). “Merely mak-
ing passing references to a claim under different topical headings is insuffi-
cient.” Id. Rather, a party needs to “clearly and unambiguously demarcate
the specific claim and devote a discrete section of his argument to it.” Id. (ci-
tation omitted). Durdley abandoned any argument that the waiver of his right
to testify was not knowing, intelligent, and voluntary by raising it only in a
footnote.
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22-12160 Opinion of the Court 3
abuse-of-discretion standard is deferential. United States v. Rosales-
Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).
The Due Process Clause of the Fifth Amendment prohibits
the government from trying an incompetent defendant. See U.S.
Const. amend. V; United States v. Rahim, 431 F.3d 753, 759 (11th Cir.
2005). For a defendant to be competent to proceed to trial or enter
a guilty plea, he must have “the capacity to understand the nature
and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense.” Wingo, 789 F.3d at 1234–35
(quotation marks and citation omitted). The district court has an
obligation to sua sponte hold a hearing if it has reasonable cause to
believe that a defendant may be incompetent. Id. at 1236; see also
18 U.S.C. § 4241.2 Reasonable cause is established where the dis-
trict court has a bona fide doubt about the defendant’s competence.
Wingo, 789 F.3d at 1236. The court must consider three factors in
determining whether there is a bona fide doubt: “(1) evidence of
the defendant’s irrational behavior; (2) the defendant’s demeanor
at trial; and (3) prior medical opinion regarding the defendant’s
competence to stand trial.” Id. (quotation marks and citation omit-
ted). A court must consider the aggregate of all three prongs and
cannot evaluate each prong in a vacuum. Id. Evidence under a
single prong, even standing alone, however, may be sufficient to
2 The relevant language of the provision states that “[t]he court . . . shall order
[a competency hearing] on its own motion, if there is reasonable cause to be-
lieve that the defendant may presently be suffering from a mental disease or
defect rendering him mentally incompetent.” 18 U.S.C. § 4241.
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4 Opinion of the Court 22-12160
establish a bona fide doubt about the defendant’s competence. Id.
The district court has the advantage of its firsthand observations
when assessing the evidence. United States v. Dixon, 901 F.3d 1322,
1342 (11th Cir. 2018).
Furthermore, the district court did not abuse its discretion
by failing to sua sponte order a competency hearing because it had
no reasonable cause to believe that Durdley may have been incom-
petent. First, as to irrational behavior, Durdley argues that filing
multiple pleadings and “repeatedly referr[ing] to a fictional legal
system that had no basis in reality” created sufficient doubt about
his competency. Durdley certainly espoused what have been
termed “sovereign citizen” views.3 But expressing such views
doesn’t necessarily indicate irrationality of the sort that a court
would find calls a party’s competence into question.4 In fact, the
district court specifically found that Durdley understood the pro-
ceedings based on his behavior throughout and determined that he
3 “[S]overeign citizen” cases involve parties “who believe they are not subject
to the jurisdiction of the courts.” United States v. Sterling, 738 F.3d 228, 233 n.1
(11th Cir. 2013). Here, Durdley claimed, among other things, that his rights
were reserved under the Uniform Commercial Code and that he didn’t con-
sent to the proceedings.
4 While courts summarily reject arguments of this sort as frivolous, this does
not mean that those who espouse such views are incompetent to stand trial.
See United States v. Sterling 738 F.3d 228, 233–39 (11th Cir. 2013) (analyzing dis-
trict court’s trial of a defendant in abstentia after defendant articulated sover-
eign-citizen type claims with no suggestion that defendant was incompetent).
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22-12160 Opinion of the Court 5
was competent despite his sovereign-citizen views.5 On the second
prong—the defendant’s demeanor at trial—while the court noted
that he had been disruptive through the entirety of the proceed-
ings, it found that Durdley was calm, speaking in a normal manner,
and not screaming or flailing around. Finally, Durdley provided no
prior medical opinions or evidence regarding his competence.
Taken in the aggregate, and with the deferential view that this
Court takes under the abuse-of-discretion standard, we hold that
the district court didn’t err in failing to sua sponte order a compe-
tency hearing. Accordingly, we affirm as to this issue.
II
When reviewing a district court’s trial of a defendant in ab-
sentia, we ordinarily review the court’s interpretation of the rele-
vant procedural rule de novo, and then examine whether the court
properly exercised its discretion to allow the trial to go forward af-
ter finding that the defendant voluntarily waived his right to be pre-
sent. Sterling, 738 F.3d at 234.
When a defendant fails to object to his absence from a pro-
ceeding before the district court, however, we review only for plain
error. United States v. Downs, 61 F.4th 1306, 1314 (11th Cir. 2023).
“Under plain error review, there must be (1) 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
5 Though not dispositive, it is also worth noting that Durdley’s counsel ex-
pressed no concerns about Durdley’s competency.
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6 Opinion of the Court 22-12160
judicial proceedings.” United States v. De La Garza, 516 F.3d 1266,
1269 (11th Cir. 2008).
We have explained that the right to be present at trial stems
from “the Confrontation Clause of the Sixth Amendment, the Due
Process Clause of the Fifth Amendment, and Federal Rule of Crim-
inal Procedure 43.” United States v. Novaton, 271 F.3d 968, 997 (11th
Cir. 2001). The right to be present under the Due Process Clause
guarantees the defendant a “right to be present at any stage of the
criminal proceeding that is critical to its outcome if his presence
would contribute to the fairness of the procedure.” Id. at 998 (quot-
ing Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). One “critical
stage” of the criminal proceeding that receives protection under
the Due Process Clause is when the defendant’s sentence is im-
posed. See United States v. Jackson, 923 F.2d 1494, 1496–97 (11th Cir.
1991). Rule 43 states that a defendant must be present “at every
trial stage” and “sentencing.” Fed. R. Crim. P. 43(a)(2), (3).
A defendant’s waiver of his right to be present must be
knowing and voluntary. Sterling, 738 F.3d at 236. In Sterling, we
concluded that the district court did not abuse its discretion in find-
ing that Sterling voluntarily waived his right to be present after it
explained that he had a right to be present, it asked whether he
wanted to be present, and he refused to respond. Id. at 236–37.
District courts must also balance the public’s interest with the de-
fendant’s right to be present. Id. at 237. When a defendant’s ab-
sence is due to his decision not to be present, then there is no rea-
son to believe that trial is soon to occur with the defendant’s
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22-12160 Opinion of the Court 7
presence. Id. District courts are under no obligation to force the
defendant’s presence. Id.
“In non-capital cases, a criminal defendant’s voluntary ab-
sence after the trial has commenced in his presence need not pre-
vent continuing the trial, to and including the return of the ver-
dict.” Foster v. Wainwright, 686 F.2d 1382, 1387 (11th Cir. 1982).
Once a defendant loses his right to be present at trial due to contin-
ued disruptive behavior, this right can be reclaimed as soon as he
is willing to conduct himself consistently with the decorum and re-
spect inherent in the concept of courts and judicial proceedings. Id.
(quoting Illinois v. Allen, 397 U.S. 337, 343 (1970)).
Durdley contends that his removal was premature because
his conduct was not of such an “extreme and aggravated nature”
to justify complete removal. Appellant’s Br. at 30 (quoting Allen,
397 U.S. at 346). In Illinois v. Allen, a trial court removed a defend-
ant from the courtroom because he argued with the court in a dis-
respectful manner and continued to “talk back” even after he was
warned that his next outbreak would result in his removal. 397
U.S. at 340. The Supreme Court upheld the removal, holding that
trial courts confronted with disruptive and stubbornly defiant de-
fendants must be given sufficient discretion to meet the circum-
stances of each case. Id. at 343, 347. The Court concluded that
there were at least three constitutionally permissible ways for a
trial court to handle a disruptive defendant: (1) bind and gag him,
thereby keeping him present; (2) cite him for contempt; or (3) re-
move him from the courtroom until he promised to properly
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8 Opinion of the Court 22-12160
conduct himself. Id. at 343–44. It stated that, if any rights were
lost—such as the right to confront witnesses—they could be re-
claimed as soon as the defendant was willing to act appropriately.
Id. at 343.
Here, the court did not plainly err in removing Durdley
from the trial or sentencing hearing. At trial, Durdley’s waiver of
his right to be present was knowing and voluntary because, while
the court explained that he had a right to be present and a right to
testify, he repeatedly asked the court to remove him. The court
did not err in continuing the trial without Durdley’s presence be-
cause there was no reason to believe that trial would soon occur
with his presence, as he was warned the trial would proceed with-
out him if he failed to follow orders and he responded by asking to
be removed. Additionally, each time the district court removed
Durdley, it informed him that he could return if he wished. At the
sentencing hearings, Durdley lost his right to be present by inter-
rupting the judge and failing to follow the court’s order to answer
its questions.
Durdley also argues that he was never warned of possible
contempt citations. The district court was not required, however,
to choose that option. One of the constitutional options for han-
dling disruptive defendants is removal of the defendant until he
agrees to conduct himself properly. Id. at 344. That the district
court here chose that course of action instead of one of the other
constitutional options presented in Allen is not an error, much less
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22-12160 Opinion of the Court 9
plain error. Accordingly, we affirm the district court’s decision to
remove Durdley.
AFFIRMED.
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