Unpublished Disposition, 907 F.2d 155 (9th Cir. 1986)

MEMORANDUM^** 

Dewey Baker appeals pro se his conviction for escaping from the custody of the Attorney General, in violation of 18 U.S.C. § 751(a). Baker was serving out a sentence for bank robbery in Casa Libre, a half way house in San Jose, California, when he did not return to the facility after work on January 20, 1986. Baker was arrested in Sacramento, California, on July 27, 1986, under the alias Raymond Teale. Baker was released before his true identity was revealed, and was recaptured on August 4, 1986. Baker appeared pro se at trial and dismissed court-appointed assistive counsel.

Baker alleges that his constitutional rights were violated at trial based on the following claims: (1) Baker was shackled at his first pre-trial hearing; (2) the trial court did not grant all of Baker's requests for aids in trial preparation, including a request for a court appointed psychiatrist; (3) the trial court denied Baker's second request for a continuance; (4) the trial court excluded some of Baker's testimony; (5) the trial court refused to determine the admissibility of potentially prejudicial evidence in advance of trial; (6) the trial court denied Baker's motion for recusal. We review the district court's rulings on these matters for abuse of discretion. See Spain v. Rushen, 883 F.2d 712, 716 (9th Cir. 1989) (shackling defendant), cert. denied, 110 S. Ct. 1937 (1990); United States v. Cruz, 783 F.2d 1470, 1473-74 (9th Cir.) (appointing a psychiatrist), cert. denied, 476 U.S. 1174 (1986); United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986) (continuance of trial); United States v. Karr, 742 F.2d 493, 497 (1984) (excluding testimony); United States v. Roberts, 783 F.2d 767, 770 (9th Cir. 1985) (advance ruling on admissibility of evidence); United States v. Branco, 798 F.2d 1302, 1304 (9th Cir. 1986) (recusal motion). We have examined the record and we find no indication that the district court abused its discretion. We affirm.

Baker first claims that the trial court's order that he be shackled at the first pre-trial hearing prejudiced his defense, because he was flustered and unable to refer to his notes. The trial court may order a defendant restrained in the interests of courtroom safety. See Spain, 883 F.2d at 719. The fact that Baker had escaped from custody during a previous hearing in court several years earlier justified the trial court's precautions. Baker was only shackled once and never in the presence of the jury. The trial court did not abuse its discretion.

Second, Baker argues that he was prejudiced by inadequate access to library materials and the lack of assistance of an investigator or a legal assistant. The trial court went to great lengths to accommodate Baker, and provided him with adequate materials and resources to provide a meaningful legal defense. Cf. Milton v. Morris, 767 F.2d 1443 (9th Cir. 1985). Baker's performance in his own defense is testament to the adequacy of his preparation. Baker also argues that the trial court's failure to appoint a psychiatrist prejudiced his defense. Baker was not attempting to use an insanity defense and a psychiatrist's testimony would not have been relevant to his case. Cf. Ake v. Oklahoma, 470 U.S. 68 (1985). The trial court did not abuse its discretion.

Third, Baker claims that he was prejudiced by the trial court's refusal to grant a second continuance so that Baker could retain new counsel after he had dismissed court appointed counsel. The trial court did not err in refusing to grant the continuance, because it said it would consider granting one if Baker obtained counsel. Baker was unable to secure private counsel in any case and so he was not prejudiced. See United States v. Polizzi, 801 F.2d 1543, 1559 (9th Cir. 1986).

Fourth, Baker argues that the district court erred by excluding testimony regarding his state of mind after his escape. This testimony was not relevant and was properly excluded.

Fifth, Baker claims the district court erred by refusing to make an evidentiary ruling on the admissibility of a handgun before trial. The district court followed normal procedure and did not abuse its discretion.

Finally, Baker claims the district court erred by refusing to recuse himself upon defendant's motion immediately prior to trial. Baker's request for recusal was based solely on his accompanying request for an investigation of the judge for prejudicial prosecution. There was no basis for either motion. The district court did not abuse its discretion.

The district court acted within its discretion in all of these matters.¹ 

AFFIRMED.