United States v. Robert Burston, 703 F.3d 856

Background

Ross and Burston are defendants in a joint direct criminal appeal over a counterfeit-check car-purchase scheme.
Ross allegedly conceived and orchestrated the conspiracy; Burston was a co-conspirator who helped sell and resell vehicles.
Other co-conspirators pleaded guilty and testified against Ross and Burston; Ross exhibited paranoid behavior leading to multiple attorney withdrawals.
Ross repeatedly sought to represent himself; the district court denied/denied-without-prejudice continued waivers and later ordered competency proceedings.
After an eight-day jury trial, Ross was convicted on conspiracy and multiple substantive counts; Burston was convicted on conspiracy and acquitted on one substantive count; sentences were imposed.
The panel AFFIRMS Burston’s conviction but REMANDS to determine whether Ross was unconstitutionally deprived of counsel at his competency hearing; if so, Ross’s conviction/sentence may be vacated.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of counsel and competence to proceed pro se	Ross contends waiver was invalid due to incompetence.	Ross argues court failed to ensure competence before waiver and did not reappoint counsel for competency hearing.	Remand for evidentiary hearing to resolve whether standby counsel provided meaningful adversarial testing.
Adequacy of standby counsel at competency hearing	Standby counsel failed to adequately challenge competency; thus deprivation of counsel occurred.	Standby counsel’s participation could suffice to overcome deprivation.	Record insufficient to conclude either complete deprivation or adequacy; remand for Cronic-based adversarial testing analysis.
Admission of polygraph evidence	Plea agreement allowing polygraph could bolster Lemus’s credibility and improperly bolster the witness.	Testimony about polygraph obligation is minimally probative and not improper bolstering.	District court did not abuse discretion; evidence admissible and questions did not amount to improper bolstering.
Speedy Trial Act and pre-indictment delay	Delay prejudiced Ross; indictment delay violated the Speedy Trial Act.	No intentional delay shown; delays justified as ends-of-justice or due to counsel changes.	No reversible error; delays properly justified and waived under 18 U.S.C. § 3161(h).
Impact of Ross’s conduct on Burston’s right to a fair trial	Ross’s self-representation prejudiced Burston; severance or relief warranted.	No specific prejudice; joint trial proper with limiting instructions.	No reversible error; cumulative-impact claim fails under plain-error review.

Key Cases Cited

Faretta v. California, 422 U.S. 806 (Supreme Court (1975)) (right to counsel requires knowing, voluntary, intelligent waiver; self-representation allowed)
Iowa v. Tovar, 541 U.S. 77 (Supreme Court (2004)) (waiver of counsel must be knowing, voluntary, intelligent)
McDowell, 362 F.3d 366 (6th Cir. 2004) (model inquiry suffices for waiver of counsel with substantial compliance)
Cromer, 389 F.3d 662 (6th Cir. 2004) (extensive model inquiry required for waiver; substantial compliance acceptable)
Drope v. Missouri, 420 U.S. 162 (Supreme Court (1975)) (duty to inquire into competency when reasonable cause exists)
Edwards, 554 U.S. 164 (Supreme Court (2008)) (lower threshold for competency to stand trial impacts self-representation decision)
Purnett, 910 F.2d 51 (2d Cir. 1990) (competency proceedings require counsel through resolution)
Klat, 156 F.3d 1258 (D.C. Cir. 1998) (defendant cannot waive right to counsel while competency is in question)
Zedner, 193 F.3d 562 (2d Cir. 1999) (competency hearing requires counsel; interplay with waivers)
Leggett, 1994 WL 171441 (6th Cir. 1994) ( standby counsel at competency hearing can suffice under certain conditions)
Trujillo, 376 F.3d 593 (6th Cir. 2004) (evidentiary actions at polygraph questions; limitations on improper bolstering)
Gantley, 172 F.3d 422 (6th Cir. 1999) (prosecutorial questioning about polygraph relevance; bolstering concerns)
Cronic, 466 U.S. 648 (Supreme Court (1984)) (meaningful adversarial testing; standard for deprivation of counsel)
Mikolajczyk, 137 F.3d 237 (5th Cir. 1998) (limiting instruction can cure prejudice from counsel's misconduct)
United States v. White, 887 F.2d 705 (6th Cir. 1989) (duty to inquire into defendant competence when reasonable cause exists)
King v. Bobby, 433 F.3d 483 (6th Cir. 2006) (dilatory conduct can support knowing and voluntary waiver of counsel)