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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-7320
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN BARNES,
Defendant-Appellant.
_______________________________________________________
Appeal from the United States District Court for
the Southern District of Mississippi
_______________________________________________________
(August 16, 1994)
Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.
REAVLEY, Circuit Judge:
It is the contention of this appeal that the inability of a
defendant to testify in open court before a jury necessarily
renders the defendant incompetent to stand trial. We reject the
contention and affirm the conviction.
Allen Barnes was charged with one count of a felon in
possession of a firearm and one count of possession of an
unregistered firearm. His attorney filed a motion pursuant to 18
U.S.C. § 4241(a) for a psychiatric evaluation to assess Barnes'
mental competency. The court directed that Barnes undergo
psychiatric examination. A psychological report was entered,

stating that Barnes suffered from paranoid schizophrenia with
depression and border-line retardation and concluding that Barnes
was incompetent to stand trial. Barnes was then committed to a
treatment and hospitalization center for prisoners in
Springfield, Missouri.
After four months of treatment, the warden entered a
certificate of competency in accordance with 18 U.S.C. § 4241(e).
The forensic report confirmed that Barnes was capable of
understanding the nature of the proceedings against him and was
able to assist in his defense. The clinical psychologist added
the following caveat, however, to the report:
A caveat about Mr. Barnes' understanding should be
noted. He demonstrated a history of vague and evasive
speech which continued during his treatment. This is a
style that he utilizes in order to avoid social
interaction and awkwardness with others. He often
responded by saying "I don't know" in order to decrease
his anxiety or avoid further questioning and
interaction with people. He was, however, observed to
provide adequate answers and descriptions when
interviewed alone or in small groups. It is the
undersigned evaluators' opinion that he would function
adequately in a hearing. A jury trial would be
difficult for him if he chose to testify on his own
behalf. His behavior would otherwise be completely
appropriate in such a setting.
The district court held a competency hearing on February 12,
1993, and found the defendant competent based on the forensic
report, without contrary evidence or claim. Barnes did, however,
move to dismiss the indictment because of the caveat in the
report. The district court considered the caveat and concluded
that Barnes was competent to stand trial and competent to testify
in his own behalf in a hearing setting, but not competent to
2

testify on his own behalf in a group situation, including a jury
trial. The court elaborated on the competence of Barnes to
testify in a setting in which "the attorneys for both sides are
present along with the court and a minimum number of court
personnel" and it was suggested that the jury could watch by a
closed-circuit television. Upon that ruling Barnes pleaded nolo
contendere1 and the district judge found him guilty as charged.
Barnes appeals and argues that his conviction should be reversed
and the indictment dismissed, because he was incompetent to stand
trial without the ability to testify in the physical presence of
a jury.
DISCUSSION
The inability of a defendant to communicate effectively with
the jury is not an unusual problem. Language, speech, and mental
handicaps sometimes interfere. Although Barnes could not
communicate well before large groups of people, he was found to
be competent; he was able to understand the nature and
consequences of the proceedings against him and was able to
assist in his defense. Furthermore, Barnes was presented with
the viable option of testifying by closed-circuit television if
he felt unable to testify before a jury.
1 Barnes entered a conditional plea. Rule 11(a)(2) states:
"With the approval of the court and the consent of the
government, a defendant may enter a conditional plea of guilty or
nolo contendere, reserving in writing the right, on appeal from
the judgment, to review of the adverse determination of any
specified pre-trial motion. A defendant who prevails on appeal
shall be allowed to withdraw the plea."
3

Dismissal of the indictment in Barnes' case, or in the
event of some other communication disability or handicap, is not
the proper disposition. Instead, courts should provide a means
of communication as may best enable the testimony of a defendant
to be presented to the jury. See United States v. Ball, 988 F.2d
7, 9 (5th Cir. 1993) (upholding discretion of the trial judge in
using an interpreter to present deaf defendant's testimony, where
defendant's speech was unintelligible and defendant offered no
alternative way, other than written statements, to present
testimony); People v. Hardesty, 362 N.W.2d 787 (1984), appeal
dismissed, 106 S.Ct. 3269 (1986) (upholding denial of defendant's
motion to discontinue use of psychotropic drugs that supported
his competency and without which he might become incompetent to
testify and stand trial).
We do not find the determination that Barnes was competent
to stand trial "clearly arbitrary or unwarranted" simply because
the district court presented an option to Barnes which could
enhance, rather than harm, his ability to effectively present his
case to a jury.
AFFIRMED.
4