*1 deny I suspend Rule and would COA. nor President Bush the ICJ ther conduct therefore dissent. to order the State to authority a review. such omitted). (footnotes re Cárdenas or not Ramirez
Whether proceedings is not rele stay of
quested a the applicability of substantive
vant the
holdings Medellin and Leal Garcia. — Texas, U.S. -, Leal v.
See Garcia 180 L.Ed.2d 131 S.Ct. America, UNITED STATES of curiam) (“Our (2011) rule on (per task Plaintiff-Appellee, is, might the it eventu what law what be.”). neither ICJ’s ally Similarly, July ruling nor Governor’s MARRERO, Eugenio Juan of the Supreme the substance letter alter Defendant-Appellant. Medellin, regarding in ruling, Court’s No. 08-2075. under law. obligations domestic State’s in this are the issues case
Accordingly, Appeals, Court of States by in Leal fully precedent our resolved Circuit. Sixth has Ramirez Cárdenas therefore Garcia. Jan. 2011. Argued: requirements for issu failed meet under ance a COA Slack July Filed: Decided and Rehearing En Banc Rehearing
IV Aug. 2011.* Denied cases majority The reads our as estab- bar, independent jurisdictional lishing an prevents us from
based in Rule a COA should issue
considering whether has on the
unless district court ruled It does so because number
COA first. of a
our have stated lack cases ruling use lose our
district court caused view, majority, my But in
jurisdiction.
has the mechanism misunderstood If the Rule
which that causation occurs. prior requirement is en- consideration
forced, indeed cause us to without it will be it will result
jurisdiction —because of a
absence a COA. But absence bar, jurisdictional is what creates
COA Therefore, light 22 itself.
not Rule in this and the delay case substantial le- straightforward nature of the
relatively raised, I 2 to invoke Rule
gal issues would rehearing * Judge grant the rea- sons stated in his dissent. Clay would *6 Schad,
ARGUED: Kevin M. Federal Office, Cincinnati, Ohio, Public Defender’s Appellant. Borgula, Matthew G. Assis- Attorney, Rap- tant United States Grand *7 ids, Michigan, Appellee. for BRIEF: ON Schad, Kevin M. Federal Public Defend- Ohio, Office, Cincinnati, Appellant. for er’s Borgula, Assistant United Matthew G. Attorney, Rapids, Michigan, Grand States Marrero, Appellee. Eugenio for Juan Carolina, Edgefield, pro se. South KENNEDY, CLAY, Before: and KETHLEDGE, Judges. Circuit J., KENNEDY, opiniоn of delivered the court, KETHLEDGE, J., the in which CLAY, 476-82), (pp. J. delivered a joined. dissenting separate opinion.
OPINION KENNEDY, Judge. Circuit Eugenio Defendanfi-Appellant Juan possessing convicted of with Marrero was In laundry intent crack cocaine and mari- a common-area room to distribute down the hall juana, apartment, Trooper crimes from the for which he sentenced Bush discovered Marrero imprisonment. appeal, hiding to On inside of a 360 months’ dryer. Trooper Bush arguments ordered Marrero to plethora Marrero raises emerge, Trooper called and into challenging his conviction sentence. Watson the room, attempted and to handcuff that the district Marrero. Primarily, alleges he court At point, began Marrero to resist right Sixth Amendment violated his to an by punching kicking arrest troop- and the attorney by refusing appoint to him substi- trying ers and to run In away. the result- allowing represent tute and him to counsel melee, ing by Marrero —undeterred multi- sentencing. himself at trial and Because ple stuns from Trooper Bush’s taser— we determine that did managed pull troopers into the hall. by denying abuse its discretion Marre- Sergeant Kenny, who had in remained attorney, ro’s for a new and be- apartment speak Walters, joined with merit, remaining cause lack claims we upon hearing troopers’ scuffle calls AFFIRM. help,
for finally and three officers man- AND FACTUAL PROCEDURAL aged to The subdue Marrero. officers BACKGROUND each sustained injuries; minor Marrero emerged rug with several burns on his evening On October Ser- face, stuns, more than a dozen taser and geant Kenny Paul Rapids of the Grand complaints pain shoulder, about in his Department Michigan Police State injured which had been prior to his en- Troopers Bob Watson and Chris Bush counter officers. went for an looking apartment Marrero at Park, complex in Michigan. secured, Comstock In- Once Marrero was Trooper gathered ongoing formation drug- room, Bush laundry returned where trafficking investigation grams indicated that he found 27.25 crack cocaine cocaine, selling Marrero was washing the offi- machine. Police obtained a question cers him. wanted After a resi- search warrant apartment, from dent particular directed the to a officers which they recovered a total of 209.54 unit, apartment Sergeant Kenny grams marijuana knocked in addition to the the door girlfriend, Marrero’s Tina crack cocaine residue and other evidence Walters, answered. told Meanwhile, Walters the offi- found in the kitchen. Marrero cers currently that Marrero was not there was examined personnel, medical *8 gave and permission them signed to come in and a waiver declining hospitalization, look for him. The sweep officers’ of and provided the was Approxi- some water. apartment verified that Marrero mately arrest, was not half an hour after his Ser- inside, but in the they kitchen geant found crack his Mi- Kenny advised of Marrero residue, scale, cocaine a digital randa rights and Marre- agreed and Marrero to ro’s Card1 Bridge next to speak. During an active burn- the his course of conversa- Surmising er. that recently the stove had tion Sergeant Kenny, with Marrero admit- cocaine, been cook used to crack the offi- ted that: fought he had the officers be- cers to decided canvass area the for Mar- cause he go prison; did not want to to the rero. crack cocaine seized laundry from the Bridge 1. A Card is a debit card issued the of its program. beneficiaries food assistance Michigan Department of Human Services to subjiciendum [sic],” his; day, corpus had and which that he as room was earlier alleged he based on the district court’s planned cocaine that was of purchased $800 cocaine; jurisdiction. and mari- The district con- into crack the lack court to turn was his and all at a juana apartment found in the sidered of Marrero’s motions hear- 21, 2008, placed April to it. Marrero was on the ing he intended sell date scheduled custody. this sentencing. During proceeding, in state for the district court determined that Marrero 7, 2007, in- Marrero was On November guilty plea to his wished withdraw because District in the States Court dicted United challenge everything.” “to he wanted on Michigan for Western District primary Marrero’s contentions seemed re- possession intent to dis- two counts: jurisdiction to lated the district court’s —he grams five or more of cocaine base tribute ju- that federal court lacked believed to and with intent distribute possession risdiction over his case because he was in violation of 21 U.S.C. marijuana, both originally charged and bound over for trial 841(a)(1). judge magistrate § A issued potential in the state court—and his sen- corpus prosequendum writ of habeas ad convinced that a bill tence—he was intro- to surrender directing state Marrero in, by, passed not duced but first custody. Marrero his to federal Representatives had elimi- States House on appearance in federal court November sentencing disparity nated the between magistrate judge ap- and the powder-cocaine crack-and offenses. Fur- E. to pointed Attorney Richard Zambón thermore, court the district ascertained represent him. attorney that Marrero wanted a new be- guilty, not Mar- initially pleading After get “me and him cause we don’t [Zambón] to crack guilty cocaine pleaded rero along everything.... always [W]e see plea agreement to a on charge pursuant In point particular, for different of view.” exchange In for January 2008. Marre- complained Marrero Zambón had promised to dis- plea, ro’s Government plead guilty him to al- pressured without to marijuana decline charge miss the lowing arguments him to raise the above seeking penalty an enhanced based on objected He to the court. also fact previous felony drug convic- Marrero’s employee that Zambón The district court scheduled sen- tions. federal defender’s office. 21, 2008, and tencing April for directed presentence investigation report attempting explain After to Marrero (“PSR”) prepared. be Marrero received jurisdictional sentencing that his PSR March merit, claims lacked the district court de- counsel, his substitute April pro On Marrero filed a se nied insisting all of his conflicts with purporting his letter with the district motions, attorney based and com- following reprint- four were “total contain “(1) as to what the law plete misperceptions ed motion to withdraw verbatim: (2) Nevertheless, ap- motion the district court al- guilty plea[;] for failed is.” *9 guilty plea, Marrero to withdraw his pointment public truth federal defendar lowed Ammendment[;] it all his though denied of other motions. counsel violation of Sixth (3) hearing jury for inef- A trial on both counts indict- evidentuary motion (4) councel[;] May 28, begin to on of motion ment was scheduled fective assistance 25, 2008, the On Government jurisdiction.” Additionally, April of on 2008. for lock listing supplemental filed a information April pro Marrero se filed prior three state-court convic- “petition for writ of habe- Marrero’s document titled crimes, felony which drug tions for elevat- sources of conflict get were to on the statutory mandatory-minimum exactly all ed the sen- record of those sources of charged to the offenses. conflict. And to applicable tence the extent that there there, any ambiguity isn’t the Court 8, 2008, filed a May On Zambón motion would that alleged find based on the stating on Marrero that behalf of Marrero that the conflicts defendant has with Mr. represent at trial. wanted to himself At Zambón, none of singularly those either motion, on hearing court’s or collectively would cause me to dis- 16, 2008, May Marrero held on clarified charge Mr. Zambón and give defen- proceed to without that he wished counsel lawyer, dant another court-appointed be- “[bjecause only get lawyer.” I can’t a new before, nearly cause as I’ve said In response inquiry to the district court’s percent the alleged of conflicts rep- here into nature of the cоnflict between resents the defendant’s fundamental Zambón, Marrero and Marrero insisted law, misunderstanding of the which Mr. every a conflict in got point” “we clearly correctly Zambón has provided “I don’t how I can trial go see and be defendant, to the but he chooses not to properly represented me and my while accept. onSo the record before we attorney day we have a conflict from the made at proceeding, an earlier and on we Specifically, again started.” Marrero record, this I would not allow Mr. Mar- complained Zambón refused to act on rero lawyer, to receive another because his previously objections raised to the dis- there is no reason discharge to Mr. jurisdiction trict court’s and the disparate Zambón in the judgment. Court’s penalties applicable powder- to crack- and The district court found that Marrero objected cocaine also offenses. Marrero to “knowingly and intelligently and voluntari- challenge failure Zambon’s to his indict- ly counsel,” right waived gave his to grand ment jury, before as he believed him permission to represent right he himself with Finally, had a to do. Marrero Zambón standby as counsel. This ar- expressed dissatisfaction with Zambon’s rangement in place throughout remained response requests numerous for doc- Marrero’s trial case, sentencing. saying uments related to his he had belatedly provided him police with the re- trial, On the May eve Marre- port procure and did not for him the ro filed a “motion to dismiss the indict- search warrant or the order transfer ment.” The district court сonstrued him custody. from state to federal filing as a motion to suppress the 27.25 grams of crack cocaine recovered from the allowing
After Marrero to detail his con- room, laundry grams 209.54 of mari- Zambón, flict with the district court con- juana apartment, found in the and Marre- it, percent cluded that “99 if not a ro’s post-arrest Sergeant statements it, percent hundred goes to [Marrero’s] Kenny. holding evidentiary After hear- misunderstanding exactly how the fed- ing on morning May these issues the eral system works the state gov- vis-a-vis 2008, the district court denied Marrero’s ernment.” The district court further ex- motion to suppress grounds. all plained as follows: Mr. Marrero clearly has asked for proceeded Marrero’s case to trial on the appointment of another federal May defender afternoon of 2008. The following or attorney CJA represent day, him in jury this convicted Marrero on both case. And one of purposes of my counts of July the indictment. On *10 inquiring 2008, as to whether what [sic] those Marrero received a revised PSR
463
anticipa-
ciency
supporting
of the
his
report prepared
evidence
con-
on
based
objects
Additionally,
viction.
Marrero
to
guilty plea.
under
sentencing
of
his
tion
sentence, alleging
his
that his
first,
sentencing
objections to
two
the PSR:
He stated
was convened
violation Rule
hearing
his
the calculation of
base
he contested
32(e)(2)
Rules
of
Federal Criminal
of
2Dl.l(c)(7),
§
offense level under U.S.S.G.
Procedure,
that his sentence should be
sentencing disparity
of
be-
complaining
vacated and
case remanded
under
offenses;
and powder-сocaine
tween crack-
States,
85,
Kimbrough v. United
552 U.S.
second,
of an
challenged
application
he
558,
(2007),
128 S.Ct.
Aug. ECF of district an court’s decision that indi beginning represent to to in the wished gent good defendant failed to demonstrate basically they were forced on myself, for cause substitute counsel. United attorney represent I to me.... want an 280, v. Mooneyham, States 473 291 F.3d for represent I never asked me to me. (6th Cir.2007). of a Whether the denial argument myself.”). He now renews this for an substitute counsel is abuse appeal. depends following оn the con discretion siderations: The Sixth Amendment secures to a defendant who faces incarceration [1] timeliness motion; [2] adequacy of the court’s into inquiry stages” counsel at all “critical right to the criminal process. United States v. defendant’s complaint; ... [3] whether conflict attorney between the and Wade, 224, 1926, 218, 388 U.S. 87 18 S.Ct. great client was so that it in a resulted (1967). 1149 This right L.Ed.2d must be total lack of preventing communication knowingly intelligently waived defense[; adequate a balanc and] [4] represent to electing defendant himself. ing right the accused’s to counsel of 835, 806, v. 422 California, Faretta U.S. 95 public’s his choice and the interest (1975). 45 562 S.Ct. L.Ed.2d Howev prompt efficient administration er, right guarantee to counsel does not justice. repre that a criminal defendant will be Jennings, United States v. 83 F.3d by a particular attorney. Caplin sented & (6th Cir.1996) Res, (quoting 906 F.2d States, v. Drysdale, Chartered United 8). factors, Balancing at 1130 n. these we U.S. 109 S.Ct. 105 L.Ed.2d ultimately find did (1989). “An indigent defendant has no by refusing not abuse its discretion right particular to have a attorney repre appoint attorney a new for Marrero. sent him and therefore must demonstrate Therefore, Marrero was not deprived ‘good cause’ to warrant substitution of right his Sixth Amendment to counsel. Iles, counsel.” United States v. (6th Cir.1990). 1122, 1130 persistent, 1. Timeliness “[A] unreasonable demand for dismissal of The timeliness of requests Marrero’s appointment counsel of new counsel is attorney a new strong sup- does lend equivalent the functional of a valid waiver port to either Marrero’s claim the or dis- Green, of counsel.” United States v. hand, trict court’s On decision. the one (6th Cir.2004) (internal 918, 921 quo F.3d convey Marrero did to belatedly seem omitted); tation marks and alterations see dissatisfaction with Zambon’s representa- King also v. Bobby, 433 F.3d tion to the origi- district court. Marrero’s Cir.2006) (“[B]y rejecting options all of his nal motion for substitute counsel filed except self-representation, [the defendant] fifteen entry almost weeks after the of his necessarily self-representation.”). chose guilty plea only days five before his —and Therefore, “[r]esolution of [Mar whether sentencing though scheduled date —even decision proceed pro rero]’s se was vol major source of Marrero’s conflict with hinges untary objections on whether [his] Zambón was that never “[he] want[ed] present [his] counsel such merit as plea bargain” and to take “[he] wantfed] to entitle have ap [him] to new counsel no [his case] trial matter what.” This pointed.” Schmidt, States previously Court has found compa- that a (2d Cir.1997). rable, F.3d delay ten-week renders a motion for
465 begin his trial to untimely. trict court scheduled See United counsel substitute weeks; Gilliam, 498 half five-and-a-half less than Fed.Appx. only v. 384 States Cir.2010). (6th Zambón, his second elapsed Marrero made time had when on of this only representation for different Marrero, filed the second motion. behalf of later, Zambón when weeks two-and-a-half to Adequacy the court the District asking the motion district Court’s
filed Still, represent Inquiry to himself. allow Marrero time, only three weeks remained by that the The record of district court’s to was Marrero’s trial scheduled before hearings on Marrero’s motion for substi Again, decisions of this Court begin. past requesting the motion self tute counsel and for substitute counsel that motions reflect that suggest the district representation at similar may untimely be when filed into adequately inquired the source court See, before a trial date. times defendant’s Marrero’s with Zambón. This conflict Williams, F.3d v. 176 e.g., United States that, prior to Court’s decisions indicate Cir.1999) (two weeks). (6th 301, 314 requirement, this the court meet district hand, considering the other when On oppor must a the simply allow defendant motions, of Marrero’s the district both attorney-client tunity explain to the con any concerns about express court did perceives he it. flict as See United States Indeed, the court their timeliness. district (6th 461, 467 Vasquez, v. 560 F.3d Cir. to his Marrero’s motion withdraw granted (“The 2009) that the record demonstrates day as his plea, filed on the same guilty lengthy court engaged multiple district counsel, even first motion for substitute and discussions with both [the defendant] a in this though timeliness is also factor attorney] span many transcript that [his requests. of those See review Court’s alleged pages regarding their conflicts. Ellis, 281 States v. F.3d United During exchanges, defendant] these [the Cir.2006) (“This Court considers ample opportunity to discuss in detail had to determine whether number of factors and complaints regarding attorney] [his his proving the burden of Defendant meets attorney]’s representations to respond [his for guilty plea of his that the withdrawal Chambers, relationship.”); regarding their (1) just reason, including: fair and (“It to appears F.3d at that the us elapsed amount time between court ade [the defendant] district allowed to it....” plea and motion withdraw explain quate opportunity his concerns omitted)). And, (internal quotation marks respond.”); allowed cоunsel to and only his request Marrero renewed while Saldivar-Trujillo, States trial, three weeks before scheduled (6th Cir.2004) (“Our review of the sen had this is not case where defendant tencing hearing shows the district com- any trial for months without awaited defendant], ... de court allowed his [the only representation, plaints regarding counsel, prosecutor op fense bring a last-minute motion for substi- at is portunity complaint address tute counsel. United States v. Cham- Cf. inquiry this sue. We conclude (6th Cir.2006) bers, F.3d all the in adequate because it allowed untimely a motion substitute (finding for respective their parties present terested be- one-and-a-half months brought counsel arguments.”). evidence trial, progress- had proceedings fore when first hearing, At the slowly discovery complete ed been about go length allowed Marrero to nearly allowing After Mar- year). one as opinion with Zambón guilty the dis- his differences of plea, rero to withdraw his plea bargain. eight to his About pages proceeding with Zambón as opt- counsel or transcript of the second motion hear- ing for self representation. See United *13 ing are dedicated to the district (2d court’s v. Eltayib, States attempts to nail down the nature of Cir.1996) (“Because Marre- the denial of [the de- ro’s with dissatisfaction Zambón. This in- for new counsel was fendant’s questions cluded about the extent to which proper, it was proper explain also to to Marrero’s, the conflict affected ability to [the that he defendant] was thus left with defend his case. Zambón also got the only options: two keeping lawyer this or chance to voice opinions. his After thе se”). proceeding pro district court concluded inquiry, its it ac- knowledged that “IVe tried as best I can 3. Nature of the Conflict Between the get exactly to on the record what Attorney and the Client are,” dispute natures of the here and later After determining the nature noted that purposes “one of the my of the conflict between Marrero and Zam
inquiring as to whether what those [sic] bón, the district court could have conclud sources of conflict were get to on the rec- ed that it great was not “so that it resulted exactly ord all of those sources of conflict.” in a total lack of communication preventing Thus, it appears from the record that Mar- adequate defense.” Jennings, 83 F.3d rero fully had the chance to describe his sure, at 148. To be clearly Marrero indi objections to representation, Zambon’s cated to the district court that he disa the district court satisfied obligation its to greed with Zambon’s strategy for defend determine the sources of his complaint. See, ing his case. e.g., Mot. Hr’g Tr. This by conclusion is unaffected the fact (“Me May 2008, ECF No. 51 and him that, at the second motion hearing, [Zambón], gotwe in every point, conflict district court launched into an inquiry as so if I have conflict on every point with to whether equipped Marrero was rep- to my attorney, Iso don’t I go see how can himself, McDowell, resent see 814 F.2d at trial properly represented and be while me 250, after it allowed Marrero to describe my attorney we have a conflict from his conflict with Zambón. The record re- day started, fair.”). we so that’s not flects that the distriсt court appreciated Nonetheless, a defendant’s differences of se, the motion proceed pro by filed opinions attorney with his do not create a Zambón, actually motivated Marre- complete breakdown of communication ro’s desire for a attorney. new See Mot. that compromises his defense. This Court Hr’g Tr. May ECF No. 51 (“Mr. previously has emphasized that a defen Marrero has clearly asked for the dant’s “dissatisfaction with the appointment responses of another federal defender got lawyer, he from his or not with attorney CJA the lack of represent him in this ease.”). opportunity inability or his The to talk district court to his denied that re- (“[0]n quest. lawyer Id. or contact lawyer,” the record his before that does not we made at an earlier establish a total lack proceeding, and on communication. record, (inter this I Saldivar-Trujillo, would not allow Mr. 380 F.3d at Marrero lawyer, receive another nal quotation because there is marks and alterations omit ted). no Moreover, reason to discharge Mr. Zambón in the a lack of communication judgment.”). Court’s If we resulting conclude that from a defendant’s refusal to co the district court did not operate abuse its discre- attorney does not consti tion regard, in this it was perfectly accept- good tute cause substituting counsel. able to leave Marrero with the choice of Vasquez, 560 F.3d case, gitimate obtaining district court found interest new counsel”
In this dispute “the court [finds] conflicts when percent alleged “nearly 100 had] defendant with his counsel was [the fundamen- the dеfendant’s represents here had with likely any such as he would have law, Mr. misunderstanding tal which counsel”). clearly correctly provided has Zambón defendant, ac- he chooses not to but However, the district court proceedings descriptions of his cept.” Marrero’s Given reasoning. undercut this line of It is diffi Zambón, finding factual problems with this granting cult to see how either of Marre *14 never clearly erroneous. Marrero attorney not for a requests ro’s new would ability to con- expressed any delay concern his about have caused additional his Instead, the Zambón about his case. case. Because district court sult with decided Marrero’s first motion for substitute coun that Zambón should be Marrero believed him permitted sel at the same time it to argu- of a number meritless pursuing guilty plea, disposition withdraw his this ments, Zambon’s and the district despite a necessary rearrangement coincided with why attempts explain to numerous court’s district schedule for of the court’s Marre groundless. concerns were Marrero’s case. It was if Marrero ro’s not as re complaint significant most Marrero’s —that trial, counsel in of quested new the middle him into had somehow tricked Zambón of expense great at the time and effort by guilty accommodated pleading —was by already put forth the Government. Cf. Marrero the court when it allowed district Sullivan, v. States 431 F.3d United plea. granting to his After withdraw Cir.2005) (6th (finding that “the record request, reasonable for the district it was prompt reflect that and effi does not remaining conclude that Marrero’s court to justice administration of would cient have of objections not merit substitution did by the been served substitution of counsel counsel. such a and the attendant continuance sub when required,” would have de stitution Prompt and Efficient Administra- days his brought motion five after fendant tion of Justice jury in a trial in the Government rested right to between Marrero’s The balance witnesses). forty-two government volving public’s and the the counsel of his choice proceed pro Marrero elected se When admin prompt in the and efficient interest weeks the scheduled trial just three before is, most, equivocal, justice istration of at date, no need the district court saw Marrero. From even favors perhaps If three weeks a continuance. grant “nearly 100 perspective, court’s Marrero, get layperson, for a sufficient percent alleged conflicts [between trial, attorney ready for trained should represents the de Zambón] Marrero and prepare time to adequate also have misunderstanding fendant’s fundamental delay. If any without the case additional Therefore, court law.” the district efficiency it seems concerns thing, would reasoned, may “[g]ranting [Marre have appointment of substitute counsel ... for counsel request substitute ro’s] counsel, than possibilities rather risk “the impeded efficient actually have would inherent in delay and confusion that are justice his com because administration trial.” v. pro se United States Bertoli Cir.1993). 1002, 1018(3d plaints attorney’s performance about 994 F.2d Saldivar-Trujillo, were frivolous.” 5. Conclusion 278; v. see also States F.3d at Pittman, sum, Cir. Fed.Appx. In neither the timeliness Marre- 2001) counsel nor requests “little le- substitute (noting that defendant has ro’s public by interest dictate police
consideration tained is tainted this Fourth proper the district court’s course of action Amendment violation. for ruling on Marrero’s for new argues The Government that Mar conclude that adequacy We counsel. rero did raise this issue in the district inquiry of the district court’s into Marre- court, so our consideration of it is confined complaints ro’s of the con- nature to, most, plain error review. See Unit flict tip Marrero and Zambón between Caldwell, ed States toward a conclusion that scales the district (6th Cir.2008) (“[T]here is some debate court did not abuse its discretion. There- over whether we should treat a suppres fore, the district did not violate Mar- argument sion raised for the first time on rights. Sixth Amendment
rero’s appeal (subject only as waiver to review
if cause”), defendant can “good show or a Suppress II. Motion to review) (subject “plain forfeiture error” ” (citations omitted)). .... However, a *15 Marrero next appeals on sev reading careful of the record that reveals eral the grounds district court’s denial of Marrero did allude to these in the issues suppress his motion to drugs the recov complains court: his motion that ered from apartment the laundry police an lacked “order for arrest” when room, as well police as his statements to they apartment arrived at the complex officers after his arrest. reviewing “When 2, 2007, October and at the suppression the district court’s decision regarding a hearing again argued Marrero that the suppress, motion we review its factual “justified” officers were not in arresting findings for legal clear error and its сon him. leniency Given the courts pro afford de clusions novo.” States v. see, se litigants, e.g., Spotts v. United (6th Cir.2010) Hughes, 311, 606 F.3d 315 States, 248, Cir.2005), 250 we added) (internal (emphasis quotation consider preserved. this claim omitted). marks Because the district Nevertheless, Marrero’s claim court motion, denied Marrero’s we consid merits, fails on the as the record reflects er evidence in light the the favorable most that Marrero’s arrest met the standards of Government. the United States v. Car the Fourth Amendment. “[A] warrantless ter, (6th Cir.2004) 584, (en F.3d 587 arrest a law officer is under reasonable banc).
the Fourth Amendment where there is
probable cause to believe that a criminal
A. Basis for Arrest and Detention
offense has been or is being committed.”
Marrero first contends that
there was Devenpeck Alford,
146, 152, 125
v.
543 U.S.
no
to detain
him,
(2004).
basis
and arrest
and S.Ct.
dence
district
the
court found
Testimony Regarding
III.
Marrero’s
“no
evidence whatsoever
coercion or
Struggle with Police
being
threats or
by
other force
used
Marrero next asserts that the
police
a
officers to adduce
statement from
by
allowing
court erred
the arrest
Thus,
the defendant.”
the district court
ing
testify about
struggle
officers to
their
by refusing
did not err
to suppress Marre
they
with Marrero when
found and
to
tried
ro’s
as
police
involuntary
statements to
According Marrero,
detain him.
this
confession.
testimony constituted character evidence
challenges
crimes,
acts,”
Marrero also
wrongs,
the ad
“other
or
and is
missibility
404(b)
of his confession under
Mi
therefore
inadmissible under Rule
Arizona,
randa v.
436,
U.S.
384
86
of the Federal Rules of
S.Ct.
Evidence. Be
1602,
(1966).
Mi
object
L.Ed.2d 694
After
cause
Marrero failed
to this issue
randa,
trial,
by
made
a
plain
“[statements
defendant
we
it fоr
review
error under
52(b)
in response
interrogation
while in police Rule
of the Federal Rules of Crimi-
Hardy, 228 F.3d at
Puckett v. United
offense. See
nal Procedure. See
1423, 1429, Therefore,
error,
States,
it
plain
129 S.Ct.
was not
let alone
556 U.S.
(2009).
plain error,
To
L.Ed.2d 266
establish
district court to allow the
error,
must show an “error” that
Marrero
admission of this evidence.
obvious,” that “affected [his]
“clear or
“ ‘seriously
rights,” and that
substantial
Report
Use of a Police
to Refresh a
IV.
fairness,
public
or
integrity
affect[ed]
Recollection
Witness’s
”
judicial proceedings.’
Id.
reputation of
challenges
Marrero also
Olano,
v.
507 U.S.
(quoting United States
overruling
objection
district court’s
The circumstances under which Rule 612 of the Federal Rules police apprehended officers Marrero are a party of of Evidence authorizes a to refresh inextricably intertwined with evidence memory writing long with a so as with which he was witness’s possession the crimes Henderson, party “adverse is entitled to have the 626 F.3d the charged. later See writing produced hearing, inspect at the attempt to hide from at 338. Marrero’s thereon, it, the dryer, a officers’ to cross-examine witness police officers inside Marrero, portions ensuing and to introduce in evidence those discovery of and the to, testimony of the wit- which relate to the struggle temporal all have a connection terms, By of, Fed.R.Evid. 612. its story charged ness.” completes type case, does not limit the of writ dict at Rule 612 the close of the Government’s refreshers, ings might be used as and he did not renew this motion at the close “[W]here, a propriety permitting proofs. here, witness to of all as a defen- “[t]he memory writing pre from a refresh his dant does not renew his judg- motion for pared by largely another lies within the ment of acquittal insufficiency of the sound discretion of trial court.” Rush proofs, evidence the close of all the Co., R.R. appellate Ill. Cent. F.3d review is determining limited to (6th Cir.2005). fact that The the warrant whether there a miscarriage was manifest prepared by Childs, was report per justice.” tabulation United States v. Cir.2008) (internal son other than Officer Brennan does not F.3d quo- omitted). establish the district court abused its tation marks “Such a miscar- by allowing justice discretion her to refresh her riage only occurs if the record is it. recollection with devoid of pointing guilt.” evidence Id. Furthermore, if even the district The record in this case certainly by allowing court erred Officer Brennan to not devoid of evidence of guilt, and in refresh her recollection with the warrant cludes testimony from the interrogating report, any tabulation error police is harmless. relaying officer Marrero’s admis Officer testimony Brennan’s refreshed con sions that: the crack police cocaine that police cerned where his; located the crack found in laundry room was he had laundry cocaine in the room apart recently purchased worth of cocaine $800 ment complex. Specifically, she supplier; testified from his he had crack cooked that the officers at the scene had found the apartment cocaine twenty about crack cocaine in right washing far prior arrival; “[t]he minutes police’s trial, machine.” At pre the Government marijuana apartment found officer, testimony sented Troop another his and he intended to it. sell Additional Bush, er Chris that police ly, recovered a drug DEA expert testified that the quantity of crack cocaine from inside a illegal amount of drugs recovered in the washing laundry machine in the room. case amounted to quantities. distribution 1, 120, See Trial Tr. May evidence, vol. Given this Marrero’s conviction (“[I]n there, ECF No. 54 dryer first I does not amount ato miscarriage manifest opened up machine, it or the first washing justice.
I opened upit and looked down inside and Rule VI. 32 Violation
I large observed to me [sic] amount of cocaine, crack what I believed to be crack appeals Marrero next the district cocaine.”). Allowing Officer Brennan to court’s refusal of his at sentencing confirm this testimony would be at most for more time to review his PSR. Marrero harmless error. that, argues represented because he him sentencing, self at he should have been *19 Sufficiency V. of the Evidence given more time to review the PSR and challenges Marrero also navigate “technical, his con complicated mat evidence, viction as based on insufficient comprise ters” that sentencing the federal claiming that the Government system. 7, did not Sentencing Hr’g See also Tr. prove that possession (“I he had drugs of the Aug. ECF No. 56 didn’t have recovered the case or that he had the no [objections time to work on to the requisite intent to distribute drugs. I’m professional. PSR]. I don’t know Though Marrero moved for a directed ver- what to do with this stuff. I needed time
473
any
ty
point
it
nor does he
it,
prepare,
not send to
they
would
on
to work
”).
a mo
objections
the denial of
that he
review
additional
could have
We
me....
of discre
for abuse
time;
a continuance
tion for
if
more
neither does
brought
given
Roberge,
v.
States
tion. United
accuracy
any
facts
challenge
he
Cir.2009).
(6th
1005, 1011
in the
See United States v.
recounted
PSR.
(6th
Turner,
17, 22
Fed.Appx.
134
Cir.
32(e)(2)
Rules
of the Federal
Rule
2005) (“Actual prejudice
is established
that
provides
Procedure
of Criminal
would have
showing that
continuance
the PSR to the
give
officer must
probation
available or add
made relevant witnesses
attorney “at least
and his or her
defendant
(internal
something to the defense.”
ed
sentencing unless the de
days before
35
omitted));
period.” quotation marks
United States
this minimum
fendant waives
32(e)(2).
(10th
Archer,
1149,
“This court has
70
1151
Fed.R.Crim.P.
v.
F.3d
Cir.
that
(“Because
occasions
1995)
made it clear on several
defendant does not assert
compli
in literal
courts must be
district
contradictory
challenge
facts
the accu
of Rule 32.”
requirements
ance with
PSR,
prejudice
no
racy of the
he suffered
Carter,
399,
F.3d
v.
United States
violation, and it
from the Rule 32
would be
Cir.2004) (internal
quotation marks
resentencing.”
meaningless to remand
omitted),
grounds,
other
vacated on
(internal
omitted)).
quotation marks
1056,
160 L.Ed.2d
125 S.Ct.
U.S.
Furthermore,
Marrero
received
(2005). “Yet, although
emphasize
we
earli-
prior version of his PSR four months
mandate, we
оf Rule 32’s
importance
er,
sentencing after
awaiting
when he was
for harmless error.” Ro
violations
review
identical
pleading guilty. That PSR was
Remand is re
ishments Objection to Sentence Procedural VII. and an ob powder crack and cocaine ing challenges Marrero also a reckless- jection imposition to the sentence, the district arguing He does not endangerment enhancement. *20 authority “to dis appreciate its failed objec these ability argue that his allege craek[-to-powder-]co- with the 100:1 agree his inabili- negatively affected tions was 474 curiam); Johnson, sentencing incorporated
caine ratio[ ]”3 United States v. 553 [Appellant’s (6th Br. 990, Cir.2009). 23.] Guidelines. F.3d 996 Kimbrough Marrero relies on v. United
States,
85,
558,
552 U.S.
128 S.Ct.
169
below,
In
proceedings
Marre
(2007), which held that a
L.Ed.2d 481
dis
repeatedly
ro
application
contested the
vary
may
trict court
a defendant’s sen
disparity
the crack-cocaine
to his sentence.
upon concluding that
craek/pow
tence
“the
However,
argued
Marrero never
to the
disparity yields
‘greater
der
sentence
district court that it
impose
should
a down
3553(a)’s
necessary’
§
than
pur
to achieve
ward departure
categorical
based on a
dis
case,”
110,
in a
poses, even
mine-run
id. at
Rather,
agreement with the Guidelines.
Spears
475 ” Simmons, judicial in proceedings.’ held of the previously this Court As error, Michael, any, if at (quoting court’s 587 F.3d 365 United States v. “the district (6th Gardiner, affirmatively recognize its dis 463 F.3d Cir. failing in 2006)). statutory 100:1 ratio reject the cretion to into incorporated U.S.S.G. implicitly
as
Sentencing
Fair
Act of 2010
VIII.
at 328
plain.”
576 F.3d
§ 4B1.1 was
Liddell,
F.3d
(citing United States
brief,
In supplemental
Marrero asserts
(7th Cir.2008)).
case,
In this
Fair
that he is entitled to the benefit of the
that
explicitly recognized
court
district
111-220,
Act
Sentencing
Pub.L.
advisory to the Court.”
guidelines are
“the
124 Stat. 2372. Marrero was convicted of
consideration of the 18
It also discussed its
possessing
grams
27.25
of crack cocaine.
3553(a)factors,
the ba
explaining
§
U.S.C.
sentencing
by
At the time of his
and
rea-
light
in
of “the
for Marrero’s sentence
sis
convictions,
prior
son
his
this offense
offenses,” his
very serious nature of his
ten-year
minimum
mandatory
carried
penchant
“likelihood to recidivate”
sentence and a maximum sentence of life
exaggerating representa
“deceitful and
imprisonment;
Sentencing
the Fair
Act
tions,”
“anger management
need for
his
thirty-year
to a
penalties
amends these
education,”
the neces
“drug
help”
mandatory
maximum sentence with no
protection
deterrence and
sity of
minimum sentence. Though Marrero’s
Simmons,
simply
As in
public.
“[t]here
360-month sentence does not exceed the
judge
no indication whatsoevеr
assigned
maximum
sentence
his offense
mandatory,
the Guidelines were
believed
Act,
by
Sentencing
the Fair
Marrero nev-
court believed it was not free to
or that the
argues
ertheless
that we should remand
particular
based on both
vary downward
resentencing
case for
reference to
and defen
circumstances of the crime
ized
adjusted
penalties
now reflected
or based on substantive disagreement
dant
841(b).
§
crack Guidelines.” 587 F.3d at
with the
Carradine,
In United States v.
Johnson,
364;
jury one count of indicted Defendant with The court did not a trial set date possession 2008, the intent to distribute 21, hearing April at the on but in- possession crack cocaine and one count of nearly a gave government stead week marijuana in with the intent to distribute file supplemental documents to establish 841(a)(1) § 25, 2008, violation of U.S.C. a prior April conviction. On (b)(1). Defendant, who is uneducated and day government supple- same filed its counsel, indigent, requested and the dis- documents, mental the district court issued thereafter, 16, trict court on November scheduling order that set a trial date of 2007, appointed attorney E. Richard Zam- May 2008. represent bón to Defendant. After initial 8, 2008, May On Defendant’s counsel pleas guilty, pleaded of not Defendant filed a motion stating Defendant guilty January on 2008 to one count of proceed wished to without counsel. The possession with the intent to distribute district court the motion at a considered exchange govern- crack cocaine in for the hearing May during which promise remaining ment’s to dismiss the again requested Defendant new counsel. count. The district scheduled a sen- The court found that Defendant had
tencing
hearing
April
law,
misunderstanding
fundamental
months,
Over the next
the relation-
few
and therefore dismissed his concerns about
ship between Defendant
and counsel his counsel as meritless. The court ad-
Defendant,
degree
broke down to such a
that Defen-
that he
vised
would
be as-
pleaded
signed
attorney,
presentеd
dant
with the district court
a new
him
assign
attorney.
proceed-
him a new
choice of
April
On
with the Hobson’s
either
pro
se motion that
ing
Defendant filed a
with the counsel he neither desired nor
trusted,
proceeding
or
with no counsel
DISCUSSION
*23
answered with
Although
all.
Defendant
reading
No fair
of the
suggests
record
counsel, in
pleas for new
direct
continued
that
represent
Defendant ever desired to
leading
court’s
response to the district
himself, and as is clear from the trial
that he
questions, Defendant stated
would transcript, he was neither prepared nor
represent
repre-
rather
himself than be
equipped to do so.
surprising;
This is not
attorney Zambón.
by
sented
the late
Frank Murphy
as
Justice
once
explained:
that, the district court led Defen-
With
right
The constitutional
to assistance of
blindly
self-repre-
the road to
dant
down
very necessary
counsel is a
and practical
by summarily converting the
sentation
ordinary
one. The
person accused of
hearing, by
a
proceedings into
Faretta
if any knowledge
crime has little
of law
sought to extract a know-
which the court
in
experience
application.
or
its
He is ill
voluntary waiver of counsel. See
ing and
prepared
combat
the arsenal of stat-
806,
California,
v.
U.S.
835-
Faretta
utes, decisions,
procedure,
rules of
tech-
(1975)
2525,
36, 95 S.Ct.
Accordingly, the timeliness of Defen- apparent factors unrelated to Defendant’s weighs dant’s motion to substitute counsel law; misunderstanding of the and wheth- in favor. er the collapse relationship, what- Adequacy source, B. of thе district court’s ever affected Defendant’s
inquiry
ability
adequate
to mount an
defense.
See, e.g., United
States Adelzo-Gonza-
into the fac-
inquiry
The district court’s
lez,
(9th Cir.2001)
request
tual basis for Defendant’s
for a
(“Before ruling on a motion to substitute
lawyer
inadequate,
new
and the ma-
...,
counsel
a district court must conduct
contrary
jority’s finding to the
is flawed.
necessary inquiry might
such
as
ease the
Although
inquired
the district court
into
dissatisfaction, distrust,
defendant’s
and
conflict,
per-
the initial source of the
and
concern.”) (internal quotation marks and
states,
majority
haps, as the
allowed De-
omitted).
citation
Instead
exploring
at
“go
length
fendant to
about his dif-
these important questions, and the rea-
opinion
ferences of
with [his then-counsel]
any
rapport
sons for
lack of
between at-
plea bargain,” (Maj. Op.
as to his
at 465-
client,
torney and
the district court sum-
66), the
district court did
take the
marily converted the
into a
proceeding
step
critical
of exploring
additional and
in
hearing
Faretta
which it marched De-
attorney-client
relationship
whether
unknowingly
fendant
down the road to
complete
had broken down due to a
lack of
self-representation,
where Defendant
confidence. To the extent
trust and
would be forced to confront significant
in
purported
engage
district court
to
an
complex
charges
and
criminal
without an
independent
inquiry,
inquiry
its
was of
attorney
represent
him.
questionable value because the
rely heavily
Although
seemed to
on the statements
Defendant stated
various
at
proceed
of Defendant’s former counsel without also times that he wished to
without
counsel,
cir-
in
properly considering
surrounding
these statements were
direct
well-articulated, leading
response
ques-
cumstances and contentions of Defendant.
in
evidentiary
posed by
The
value of the statements of
tions
the district court
in
to extract Defendant’s
suspect
apparent
Defendant’s former counsel are
effort
Any pur
Accordingly,
inquiry
the district court’s
right
of his
to counsel.
waiver
woefully inadequate
into the matter was
acquiescence
proceeding pro
se
ported
misleading.
weighs
This factor thus
only
the district court
was extracted
in favor of Defendant.
presented
after the district court
Defen
1) pro
a false choice of either:
dant with
C. Extent of conflict between attor-
with the counsel he did not desire
ceeding
ney
preventing
and client
an ade-
2)
trust;
any
without
proceeding
or
or
quate defense
United States v. Nam
counsel
all. Cf.
The extent of the conflict
De
between
(6th
er,
Fed.Appx.
394-95
Cir.
significant,
fendant and counsel was
2005)
(noting
response
defen
weighs
this factor
in Defendant’s favor.
counsel,
to substitute
dant’s
Although the record should have been bet
court fashioned a “reasonable com
developed,
ter
the record that does exist
promise” by elevating a second chair coun
complete
reveals a
breakdown of the attor
chair,
keeping
objec
sel to first
but
ney-client
See,
relationship.
e.g., United
case).
lawyer
tionable
on the
Jennette,
States v.
Fed.Appx.
307-
Even
Defendant
the latter
after
selected
Cir.2010)
(finding an abuse of dis
simply
choice
to rid himself оf counsel he
cretion, where district court
denied mo
deficient,
unsatisfactory
regarded as
tion to substitute counsel two weeks before
protest
really
he continued to
“that what I
sentencing
the face of
breakdown in
*26
(5/16
client).
attorney.”
Hear’g
wanted is a
lawyer
new
communication between
and
21.)
prosecutor
Tr. at
The
rec- This is evident from Defendant’s
apparently
state
court,1
a
ments to the district
as well
ognized
problem, stating,
this as
“Your
as
those of
then-attorney.2
his
Honor ...
I have some concerns about
really asking
what he
for.
is
He’s men-
magnitude
The
of the conflict is further
at
tioned
least three times now that he
by
evidenced
Defendant’s decision to en-
(Id.)
attorney.”
Although
wants
new
we
tirely forgo representation rather than be
“by rejecting
options
have held that
all [ ]
represented by
then-counsel,
even
except self-representation,” a defendant
though
admittedly
Defendant
ignorant
was
“necessarily
self-representation,”
[chooses]
lawyer.
of the law and desired a
See
(6th
King
Bobby,
433 F.3d
Lagunas,
United States v.
abused its discretion counsel, depriving
tion of thus Defendant right
of his Amendment to counsel. Sixth Bell,
See, v. e.g., United States F.3d (6th Cir.2008) (noting of discretion standard does not de-
abuse prive meaningful appellate this Court Eugene STANSBERRY; Marcia R. even in areas of “substantial defer- review Meoli, Bankruptcy Trustee of the Es ence”). Eugene tate Deborah Stansber Any fair of the reading rеcord makes ry, Plaintiffs-Appellants, clear that the district court committed a judgment denying clear error of Defen- AIR WISCONSIN
dant’s motion to substitute counsel. This AIRLINES CORPORATION, merely is not because the district court Defendant- misapplied Appellee. the law. Rather the district unreasonably egregiously court so No. 09-2499. misapplied the law that its decision cannot be excused even under our most deferen- United States of Appeals, Court tial standards of review. Sixth Circuit. deprivation right Since the Argued: June counsel in violation of the Sixth Amend- *28 July Decided and Filed: error,” presume ment is a “structural we prejudice and should set aside Defendant’s See,
conviction and sentence on this basis.
e.g., Gonzalez-Lopez, United States v. finding 3. Because a of a Sixth Amendment the Federal Rules of Criminal Procedure. require objected would us to violation reverse Defen- Defendant on this basis at the sen- conviction, tencing hearing, recog- dant’s this dissent does not reach and the district court error, appeal proceeded the other claims of error raised on nized the but with the hear- note, (See 7.) rejected by majority, ing anyway. Sentencing other than to Tr. at The regard challenge to Defendant’s to his district court thereafter stated that Defen- sentence, appears ignorance sentencing that the district court dant's of federal law procedural representing your- have committed serious It error. was "one of the hazards of so, undisputed Perhaps that the district court failed to self.” but court's provided non-compliance insure that Defendant was with the with the Federal Rules of pre-sentence report days "at least 35 before Procedure should also be such a Criminal 32(e)(2) sentencing" required by as Rule hazard.