Case Information
*1 Before P OSNER K ANNE , H AMILTON , Circuit Judges . K ANNE Circuit Judge
. Domingo spearheaded narcotics trafficking ring Defendant Charles serving as security. Ultimately, law enforcement broke up ring charged many its participants, including Thomas. After series disagreements several attor neys, represented himself trial. He called witness defense, denied Thom as’s involvement conspiracy. Nevertheless, jury convicted of all counts. appeals, challeng ing court’s denial of request substitute counsel, court’s waived counsel, imposition of a level sen tencing enhancement suborning perjured testi mony. We affirm.
I. B ACKGROUND
On June 16, 2011, government charged with participating a large scale heroin conspiracy orchestrated by Blount. A grand jury returned an indictment against September 20, 2011, charging him with conspir ing distribute narcotics violation of U.S.C. § 846; pos sessing narcotics intent distribute during a drug deal October 2010, violation U.S.C. § 841(a)(1); using cellular telephone during October narcotics deal violation U.S.C. § 843(b).
A. Parade Counsel start prosecution marked start Thomas’s protracted difficulties lawyers. Shortly after filed criminal complaint, retained counsel, who filed appearance. On March first attorney moved withdraw because irrec oncilable differences between attorney client. dis trict granted motion withdraw appointed second attorney.
One month later, second attorney moved withdraw after receiving letter indicating want attorney representing any longer. May granted mo tion withdraw third attorney. But third attorney also moved to withdraw one month after her appointment because Thomas told her did not want her representing any longer.
On July 12, 2012, court held a hearing on third attorney’s motion to withdraw. The court ad monished Thomas it could not continue to appoint torneys indefinitely, it would grant motion appoint a fourth attorney. Thomas expressed misgivings about being appointed a fourth attorney, stating: “If they’re not going to help me, I’m better off going se then.” (Tr. 8, July 12, 2012.) court encouraged Thomas ei ther give fourth attorney a chance retain agreed let fourth attorney (“Attorney 4”) him, Attorney Thomas, however, not satisfied long. August 24, 2012, Attorney moved withdraw, claiming want representation.
At hearing on September 13, 2012, complained Attorney “not even looking into” issues raised. (Tr. Sept. 13, ordered write list concerns discuss it with torney, it postponed ruling motion withdraw. said it would allow “cycle through lawyers” appoint other attorney. ( 13–14.) Attorney 4’s motion draw withdrawn October after dicated they resolved their differences.
That until November when again ex pressed having conflict over propriety filing motion dismiss indictment. *4 4 15 1142 Thomas requested that district court appoint him new The district court refused, that Attorney “providing [Thomas] with adequate sufficient and able representation.” (Tr. 11, Nov. 15, 2012.) The district court gave Thomas choice either continue with Attorney proceed pro se. refused both choices, prompting district court order that Attorney would continue representation.
The case proceeded without issue until August 1, 2013, when filed two pro se affidavits arguing were factual errors complaint against him. Attorney moved strike affidavits, arguing court should consider se filings represented party issues raised should be addressed at trial. After discuss ing motion hearing court explained why issues he raised had explored trial, said, “I don’t want him as my attorney.” (Tr. Aug. 2013.) The court responded Attorney engaged any behavior justify removing counsel, therefore, could either keep represent himself. chose himself, court set hear ing pursuant Faretta California U.S. (1975).
B. First Faretta Hearing held its first Faretta hearing Septem ber indicated want repre sent himself wanted “[t]o get another attorney.” (Tr. Sept. 2013.) reiterated “been given good reason why [Thomas was] dissatisfied appointed counsel.” ( pre sented three choices: keep counsel, retain his own counsel, or represent himself. Thomas said “No” to all three. ( Id. 5.) court, relying on our opinion Oreye 2001), deemed Thomas to have
chosen to represent himself through his rejection either keeping his appointed counsel retaining his own lawyer. then instructed Thomas through his actions was invoking his right to self representation waiving his to After going through Faretta inquiry advising Thomas “un wise” to represent himself, asked for final time “like to continue to represented by [Attorney 4].” ( Id. said, “Yes,” withdrew his request to himself. ( )
C. Second Faretta Hearing kept Attorney 4, case set trial on December But on November 25, 2013, coconspirator Domingo pled guilty to all counts. refused to implicate plea agreement, leading Thomas’s file motion continue Thomas’s trial order to make available testify behalf. trial postponed, but disagreement Attorney not. March filed se “Motion Attorney Withdraw.” com plained lawyer given him grand jury tran scripts, intercepted phone transcripts, cooperators’ proffer interviews, Rule materials.
At hearing March explained tried meet refused see respond emails. With respect discov ery materials, indicated that they had either not been turned over yet that Thomas had already been provided with material. When asked “any other basis … [Thomas] ha[d] wanting to part ways [Attorney 4],” Thomas re ‐ plied: “I just don’t trust him, period. I don’t believe nothing he say.” (Tr. 14–15, Mar. 17, 2014.) Finding grounds to ex ‐ cuse district court again explained options. responded: “That’s why I want to file a mo ‐ tion to proceed pro se .” ( Id. 16.) hesitated, howev ‐ er, resolved if decided to proceed pro se, he would file a motion court.
No such motion filed. Five days prior sched ‐ uled trial date, May court held a pre trial conference. interjected he written let ter court indicating he “would go se .” (Tr. May 2014.) The followed up, asking “are you saying you like yourself trial?” replied, “Yes.” (
The then conducted second Faretta hear ing, informing invoking right self representation waiving judge then asked series questions. stated not studied law represented himself before, but an eleventh grade education, watched two criminal trials, understood charges and po tential penalties, and understood rules procedure and evidence applied. Finally, judge advised “it is highly likely trained lawyer defend you better than you could defend yourself. I, fore, think it unwise you try and represent yourself.” ( nonetheless chose himself, and found waived knowingly voluntarily.
D. Jury Trial case proceeded trial. He represented himself, standby The government pre sented testimony fourteen witnesses record ings from seventy three phone conversations.
In particular, government presented testimony from coconspirator Gabriel Bridges who testified served as security Blount’s drug deals. Bridges testified specific drug deals on October 20, November 1, Novem ber 2010, home Karlov Avenue (“Karlov house”) provided security. government also presented from law enforcement officers who conducted surveillance Karlov house. officers identified driving Blount’s white Lincoln area Karlov house October November On November an officer observed enter Karlov house then exit after receiving call said “We gotta go.” October officer observed Lincoln area Karlov house. published ‐ an intercepted telephone call between Blount and Thomas October Thomas indicated that he had passed Armitage and Karlov that he was on way. Shortly thereafter, officer observed white Lincoln pull into area. A few minutes later, Thomas called Blount warn suspected law enforcement parked near house.
Thomas called single witness defense—Blount. Blount testified that he known Thomas for thirty years. Blount admitted he at Karlov house on October November and But, he testified did recall being on those dates act as security him on any those days. When cross ‐ examined, continued deny Thom vicinity drug deals “never went” Karlov house. (Trial Tr. 966.) redirect, asked November “did Charles enter [the Karlov house]?” ( Id. replied “Never.” ( ) jury convicted all counts.
E. Sentencing sentencing began January standby representing post ‐ trial proceedings. argued should subject level obstruction justice enhancement suborning Blount’s perjured testimony. U.S.S.G. § 3C1.1. imposed enhancement, discussing its reasoning length: testimony, direct false.
He testified Mr. drug deals, wasn’t driving white Lincoln, was plainly false, proven by audi otapes … .
That was material, because if jury lieved Mr. Domingo direct testimony, it have acquitted Mr. Thomas, least in part perhaps whole. … And based circumstances, I’m going to find Mr. knew what Mr. Domingo Blount going to say. As I mentioned, I arranged, I believe Mr. request, to have Mr. Blount transferred MCC sufficient enough time to allow Mr. meet Mr. Blount pre pare trial.
So, I think it clear Mr. Thomas—when Mr. put Mr. Domingo stand, … he knew what Mr. going say he knew what truth was, he knew Mr. going give false testimony. (Sent. Tr. 15–16, Jan.
After court’s imposition enhancement, faced guidelines range months’ im prisonment. imposed within guidelines sentence months.
II. A NALYSIS appeal, challenges three
rulings. First, he argues abused its dis cretion by refusing appoint fifth attorney. Second, argues erred he waived Third, argues erred im posing level enhancement obstruction justice. Finding error, we reject claims. 1142
A. Denial of Request for Substitute Appointed Counsel When a has been given the opportunity ex plain the reasons for seeking appointment of a new attorney, we review the district court’s decision deny request for an abuse of discretion. United States v. Harris F.3d (7th Cir. 2005). court held hearing on Thomas’s motion requesting substitute counsel allowed explain reasons for wanting Attorney re moved. Therefore, we review the denial of substitute an abuse of discretion.
In reviewing whether the abused its discre tion denying request substitute counsel, “we consid er the following three nonexhaustive factors: (1) the timeli ness of motion; (2) the adequacy of the court’s inquiry into defendant’s motion; [and] conflict so great it resulted total lack of communication preventing an adequate defense.” Bjorkman 2001). Evaluation of these factors shows abuse of discretion denying Thomas’s request.
We need dwell timeliness Thomas’s motion. Although it made eve trial, aware possibility such motion, does appear have been attempt delay proceedings. Rather, seemingly good faith (albeit mistaken) concerns about representation provided.
Thus, we turn second factor—the adequacy court’s inquiry. Over course case, held several hearings due repeated problems lawyers. final inquiry ‐ into Thomas’s concerns with Attorney was extensive. district court discussed one by one each item of discovery that claimed Attorney not provided to ensure that was kept updated. Yet remained unsat isfied. After the district court resolved the disputes over dis covery, Thomas’s final complaint was “just don’t trust [Attorney 4].” does argue appeal were any grounds for distrust beyond those the discussed. Because was able ex press his dissatisfaction—aided no small part by the com prehensive questioning the court—we find the made an adequate inquiry regarding request for substitute
With respect “whether the conflict was so great it resulted total lack communication preventing an ade quate defense,” Bjorkman our inquiry made difficult light fact it who re fused cooperate Instead, we have said
where defendant’s lack counsel caused by own refusal cooperate counsel where defendant made aware possible consequences re fusal cooperate, court’s decision appoint new does constitute an abuse discretion .
*12 12 15 1142 United States v. Irorere , 228 F.3d 828 (7th Cir. 2000). Like defendant Irorere , went through several attor ‐ neys admitted refused see 4 pris on. It his own refusal meet cooperate Attor ney 4 precipitated court’s denial of his re quest substitute That denial abuse of dis cretion.
B. Waiver of Counsel necessary consequence denial request substitute counsel is defendant must choose (1) continue counsel, (2) retain counsel, proceed se. A has dis cretion give such an ultimatum where finds de fendant has “waive[d] right counsel through own contumacious conduct,” which this case. 826; see also United States v. Alden , F.3d 660–61 (7th Cir. 2008); Oreye , F.3d 670–71.
There is some uncertainty about standard review we apply where finds waived counsel:
We have recently said we review defendant’s waiver abuse discre tion. See, e.g. , United States v. Eads, F.3d (7th Cir. 2013). However, [the defendant] points out, also line cases this circuit, has been overruled, stating we review these de cisions de novo. See, e.g. United States v. James, F.3d (7th Cir. 2007); Hoskins 2001). Clark , F.3d 2014). Be cause error Thomas’s case under either standard, we decline resolve the discrepancy.
A defendant must waive right counsel knowingly and intelligently. See Alden 660. A knowing and intelligent waiver, however, need explicit. “[S]o long the court has given a defendant sufficient oppor tunity retain the assistance of appointed counsel, defend ant’s actions have the effect of depriving himself of counsel will establish knowing and intentional choice.” Id. (alteration original and internal quotation marks omitted).
In evaluating whether the defendant made knowing and intelligent waiver of counsel, we consider:
(1) whether and what extent court conducted formal hearing into defendant’s decision represent himself; (2) other evidence record establishes understood dangers disadvantages self representation; (3) defendant’s background experience; context defendant’s decision waive counsel . court conducted thorough formal inquiry
into waiver counsel accordance Faretta U.S. In fact, over course criminal case, conducted two formal Faretta hearings. At hearings (and many more occasions), warned danger refusing choosing himself, acknowledged understood. questioned ‐ about his education, background, understanding of the law, and understanding of the charges and possible penalties. indicated attended school until eleventh grade, watched two criminal trials, understood the charges potential penalties, and understood the applica bility of the rules of procedure evidence. acknowledged voluntarily deciding himself. court’s knowingly
intelligently waived right counsel is amply supported by record. Thomas’s argument appeal “forced” waive counsel is unsub stantiated. As held above, court’s denial of request substitute abuse of discretion, voluntarily, knowingly, intelli gently chose proceed se.
C. Obstruction ‐ of ‐ Justice Enhancement final challenge appeal court’s imposition level obstruction ‐ ‐ justice en hancement, imposed because Thom suborned perjured Domingo Blount.
“We review [district] factual findings support ing obstruction justice enhancement clear error. … We review de novo however, those findings ade quately support application enhancement.” DeLeon 2010) (citations omitted). may apply obstruction justice
enhancement “[i]f willfully obstructed or impeded, attempted obstruct impede, admin istration justice … and (2) the obstructive conduct related (A) the defendant’s offense conviction and any relevant conduct.” U.S.S.G. § 3C1.1. enhancement applies situ ‐ ations where the defendant “commit[s], suborn[s], or tempt[s] suborn perjury.” § 3C1.1 n.4(B). To find that the defendant suborned perjured testimony, must evi dence that (1) the witness willfully provided false testimony, Pabey 2011); (2) false testimony is material, id. ; and “aided abetted, counseled, commanded, induced, cured, willfully caused” perjury, U.S.S.G. § 3C1.1 n.9. finding that testimony false, and product faulty memory, clearly erroneous. testified never served as security never entered Karlov house. To contrary, several officers who conducted surveillance testified they saw outside Karlov house on October as well as November No vember officers observed enter Karlov house. Coconspirator Bridges testified served secu rity Blount. also presented phone calls between Blount. In particular, call made October recorded conversation which told driven too far past Karlov house, way.
Given testimony presented trial law enforce ment, intercepted telephone calls, coconspirator Bridg es’s testimony, established drug deals, commit clear error gave false by testifying never went Karlov house nor provided securi ty. Nor did the clearly err in finding that Blount’s testimony not result “faulty memory” about drug deals occurring five years earlier. Instead, Blount affirmatively denied participated in drug deals at Karlov house, even in face surveillance phone call evidence.
Blount’s testimony also material. If Blount’s version events—that never served as Blount’s security never went Karlov house—were believed, it would likely influence jury. At issue in trial present served as security Blount during drug deals Karlov house. Blount’s tes timony, if believed, would negate participation drug deals issue. fact ably cross examined Blount, Blount’s testimony likely harmed rather than helped Thomas, is moment. See Grigsby F.3d 785–86 2012) (“A false statement material if it has natural tendency influence, [is] capable influencing, decision [jury.] statement need not actually affect decision. … [The defendant’s] lie didn’t fool anyone, doesn’t make immaterial.” (first alteration original) (citations internal quotation marks omitted)).
Finally, did clearly err “suborned” perjured testimony. There need be evidence instructed testi fy falsely; rather, need only sufficient evidence conclude used defense knowing testify falsely. See Pabey (“Even if [the defendant] actually ask pressure [the witness] falsely testify, … used [his] his main defense knowing not true, amounts to suborning perjury.”). arranged for to housed near in custody so he could prepare for trial. acknowledged to he in fact able
to speak Blount, who testified known thirty years. In addition, knew refused implicate conspiracy during plea hearing. evidence clearly demonstrates fered even after knew falsely testify regarding role (or rather, lack there of) drug transactions. Therefore, not clearly err suborned perjured tes timony. also argues enhancement violates
Sixth Amendment right present a defense. Undoubtedly enhancement is “intended punish exercise constitutional right,” U.S.S.G. § 3C1.1 n.2, constitutional right present perjured testi mony. United States v. Lowder 1998) (“[A defendant’s] right present witnesses own de fense does encompass right suborn perjury.”); see al so Dunnigan U.S. (“[A] de fendant’s testify does include right commit perjury.”).
III. C ONCLUSION
For foregoing reasons, we AFFIRM convic tion sentence.
[1] imposed protective order coconspirator proffers, requiring documents not kept Metropolitan Correc tional Center order protect safety cooperators. govern ment produce: (1) grand jury transcripts non testifying wit nesses because entitled them without showing particu larized need finalized intercepted call transcripts because they were yet final.
[2] Instead, argues appeal protec tive order government’s refusal provide discovery created conflict between attorney. There are grounds record upon conclude manufactured an attorney client conflict, we swiftly reject such implication.