Bernard was charged with drug distribution. He had a history of mental illness and was evaluated twice for competence to be tried. After being found competent, Bernard moved to represent himself. The district court ruled that competence to be tried meant Bernard was competent to waive counsel. Bernard represented himself at trial and was convicted. The panel, 2-1, affirmed. Applying plain error analysis, the majority held that competence to waive the right of representation is required and competence to be tried satisfies that burden. The majority also held that the United States Supreme Court case Indiana v Edwards granted discretion to trial courts to impose counsel if defendants are not competent to conduct their defense, but, does not require they do so. Here, Bernard made opening and closing statements, examined witnesses and even recalled a witness. Thus, there was no abuse of discretion and the conviction must be affirmed. The dissent argued that the trial court committed prejudicial error as it was unaware that it had discretion to apply the Edwards rule and thus did not exercise discretion. The dissent would also hold this was structural error and thus per se prejudicial requiring a reversal and new trial.
Deffenbaugh, in an effort to avoid a probation violation hearing, attempted to fake his own death by jumping off a ship, swimming to shore and having his girlfriend drive him to Texas. After he left, his blind brother called 911 from the boat which resulted in a Coast guard search. After his arrest, Deffenbaugh was convicted of conspiracy and causing a false distress alarm. As there were no sentencing guidelines for his crimes, the sentencing judge reviewed all relevant factors listed in the sentencing statute and gave Deffenbaugh to consecutive sentences totaling 84 months. The panel affirmed. It held that the girlfriend conspirator did not need to know that the distress call would go to the Coast guard or any other federal agency only that a distress call was part of the plan. As she testified she knew a 911 call was part of the plan, the conspiracy charge must be affirmed. The panel noted this was consistent with United States Supreme Court authority that specific intent to give a false statement or commit assault is sufficient. There is no need to intend to give the statement to a federal official or assault a federal law enforcement officer. The panel also affirmed the sentences as the sentencing judge’s consideration of the facts including Deffenbaugh’s poor health, his use of his girlfriend and hi placing his blind brother and Coast guardsmen at risk supported the 84 month sentence, that Deffenbaugh’s arguments against that sentences had been considered and properly rejected by the sentencing judge and, as neither statute violated allowed an 84 month sentence, using consecutive sentences to achieve 84 months was proper under the circumstances.