United States v. SharpUnited States v. Sharp
Dan Sharp was charged with numerous drug trafficking and gun crimes arising out of three separate incidents. After tangling with two court-appointed attorneys, Sharp proceeded to trial pro se. A jury convicted him on fifteen counts. On appeal, Sharp raises procedural, evidentiary, and constitutional challenges to the district court proceedings. Finding no reversible error, we affirm.
On September 27, 2017, police officers responded to an apparent suicide at a home in Horn Lake, Mississippi. As officers spoke with the decedent‘s husband, Dan Sharp, they noticed pill bottles and firearms around the room. This prompted the officers to obtain a search warrant, under which they seized drugs, digital scales, firearms, and ammunition from the home and from Sharp‘s car parked outside. After confirming that Sharp had felony convictions, officers arrested him.
Sharp had a second run-in with the police the following February, when his car swerved into the lane of a DeSoto County sheriff‘s deputy. The deputy stopped Sharp‘s car, and after Sharp admitted that he had a gun inside, retrieved the gun from the center console. At that point, the deputy spotted an open toiletry case on the passenger floorboard containing a clear bag of marijuana. The deputy and a special narcotics officer eventually recovered two more guns, digital scales, and quantities of methamphetamine, cocaine, marijuana, and oxycodone from Sharp‘s car.
Sharp‘s final encounter with police occurred on April 19, 2018. That day, a confidential informant told the DeSoto County Sheriff that Sharp had “a large amount of methamphetamine” outside the county courthouse in Hernando, Mississippi. Agents located Sharp‘s car at the courthouse and began tracking his movements, ultimately observing what they believed to be a drug sale. The agents detained Sharp and again found drugs and drug paraphernalia in his possession.
A grand jury indicted Sharp on nineteen counts stemming from those three incidents: two counts of possessing a firearm as a convicted felon, one count of drug distribution, fourteen counts of possessing drugs with an intent to distribute, and two counts of possessing a firearm in furtherance of a drug trafficking crime. The government subsequently dropped three counts.
Throughout these pretrial proceedings, Sharp sparred with his court-appointed attorneys. He repeatedly tried to fire his first attorney, a federal public defender, citing poor communication and performance. And he eventually succeeded—noting “a complete breakdown in attorney-client communications,” the district court granted the public defender‘s motion to withdraw. Sharp also clashed with his second court-appointed attorney, who, Sharp complained, refused to file certain motions and cast doubt on his competency by seeking a hearing to assess his fitness for trial. That attorney, meanwhile, filed a motion informing the court that Sharp had made a credible threat of violence against him. The district court found Sharp competent to stand trial and denied Sharp‘s motions to substitute counsel, observing that he was likely to raise the same complaints “no matter who serves as his counsel.”
On the eve of trial, Sharp waived his Sixth Amendment right to counsel and elected to represent himself. The district court held a hearing and “strongly urge[d]” Sharp to stick with his attorney rather than proceed on his own. But Sharp insisted on proceeding pro se, so the court accepted his knowing and voluntary waiver and appointed the attorney as Sharp‘s
A jury convicted Sharp of fifteen counts and acquitted him of one. On appeal—and with new counsel—Sharp seeks to undo his convictions on a number of grounds.
II.
We start with the suppression issue. Sharp argues that the district court should have excluded evidence arising out of his February 2018 traffic stop because the DeSoto County sheriff‘s deputy lacked justification to pull him over. The denial of Sharp‘s suppression motion is subject to an especially deferential clear-error review because the court found, after taking live witness testimony, that the deputy‘s account of the traffic stop was “much more credible than Sharp‘s.” See United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005). The court credited the deputy‘s testimony that he pulled Sharp over because Sharp “abruptly swerved into his lane, nearly hitting his car,” and discounted Sharp‘s story to the contrary. Sharp has not established that those findings were clearly erroneous. As a result, we affirm the denial of his suppression motion.
Sharp challenges the sufficiency of the evidence supporting his convictions for drug possession with intent to distribute, drug distribution, and firearm possession in furtherance of a drug trafficking offense. Because he moved for a judgment of acquittal, we review his sufficiency claims de novo. United States v. Lee, 966 F.3d 310, 316 (5th Cir. 2020). Still, “we give great deference to the jury‘s factfinding role, viewing the evidence and drawing all inferences in favor of its verdict.” Id. (citation omitted).
The evidence supports Sharp‘s convictions for drug possession with an intent to distribute. Officers explained that in September 2017, February 2018, and April 2018, they found Sharp with narcotics and in the presence of either drug paraphernalia, firearms, or both. Investigators also described text messages in which Sharp appeared to be negotiating drug sales in the days surrounding his September 2017 and April 2018 arrests. On the stand, Sharp even admitted that he had traded firearms for drugs and that he would offer free drugs to women but would not “get dudes high for free.” A rational jury could have therefore concluded that, on each occasion, Sharp knowingly possessed a controlled substance and intended to distribute it.
Sharp disputes that he possessed drugs on September 2017, insisting that he was only briefly visiting the home where they were discovered. But witnesses testified that Sharp was a regular presence in the house and sold drugs out of the bedroom where the drugs were stashed.
Sharp further claims that he never intended to distribute the drugs in his possession. Indeed, some of the quantities he possessed did not rule out personal use. Supporting the jury‘s finding on intent, however, is that the drugs were always found with digital scales, baggies, or firearms. The presence of these guns and drug distribution materials allowed the jury to infer an intent to distribute even if the quantities were consistent with
Sharp‘s conviction for drug distribution also stands. The jury heard witness Joseph Warren testify that he had bought cocaine from Sharp in the past and did so again on the date of Sharp‘s April 2018 drug arrest. That alone is enough.
For the gun convictions that Sharp challenges, the jury had to determine that his possession of firearms in September 2017 and February 2018 “further[ed], advance[d], or help[ed] forward” a drug trafficking offense. United States v. Cooper, 979 F.3d 1084, 1090 (5th Cir. 2020) (citing United States v. Ceballos-Torres, 215 F.3d 409, 415 (5th Cir. 2000)); see
Ample evidence also indicates that Sharp possessed those firearms in furtherance of a drug trafficking offense. See Ceballos-Torres, 218 F.3d at 414–15 (noting possession is more likely to be in furtherance of a drug trafficking offense if the firearm is accessible to the defendant, stolen, possessed unlawfully, or in proximity to drugs). Sharp‘s guns were close at hand and in proximity to drugs. He possessed them illegally (due to his prior felony convictions) and one of them had been stolen. The jury therefore heard plenty of evidence to support Sharp‘s convictions on these counts. See Cooper, 979 F.3d at 1090–91 (upholding conviction when firearm found in defendant‘s car alongside drug paraphernalia); United States v. Charles, 469 F.3d 402, 406–07 (5th Cir. 2006) (upholding verdict after noting that
IV.
Next, Sharp argues that the district court denied him a fair trial by declining to sever the counts into three separate trials. An indictment may charge the defendant with two or more distinct offenses if the offenses “are of the same or similar character.”
We review the denial of a motion to sever “under an exceedingly deferential abuse of discretion standard.” United States v. Hager, 879 F.3d 550, 557 (5th Cir. 2018) (citation omitted). The district court “will not be reversed without a showing of specific and compelling prejudice which results in an unfair trial.” United States v. Ballis, 28 F.3d 1399, 1408 (5th Cir. 1994) (citation omitted). The court, moreover, can usually forestall prejudice from the failure to sever counts “through an appropriate jury instruction.” United States v. Turner, 674 F.3d 420, 430 (5th Cir. 2012).
Sharp has not made a “specific and compelling” showing of prejudice resulting from the failure to sever his counts. Sharp contends that the district court‘s refusal to sever the counts forced Sharp to make the difficult choice between testifying “on all counts or none.” But nowhere does Sharp explain how his defense suffered from his ultimate decision to take the stand. He correctly notes that joinder may prejudice a defendant who “wish[es] to testify in his own defense on one charge but not testify on another.” 1A Charles Alan Wright et al., Federal Practice &
V.
A pair of Sharp‘s claims of trial error face a particularly high hurdle on appeal. Sharp contends that the district court denied him a fair trial by requiring him to wear shackles in sight of the jury. He alternatively seeks a new trial due to the introduction of testimony from DeSoto County Sheriff‘s Detective Thomas Brea that Sharp claims violated his rights under the Confrontation Clause. Sharp, however, failed to raise these issues in the district court. Because he did not, this court reviews only for plain error—“a clear or obvious forfeited error affecting his substantial rights” that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Davis, 754 F.3d 278, 281 (5th Cir. 2014); see id. (reviewing shackling order for plain error); United States v. Acosta, 475 F.3d 677, 680–81 (5th Cir. 2007) (reviewing Confrontation Clause claim for plain error).
A.
Sharp has not shown that the district court erred in ordering him to wear leg shackles, which were padded throughout trial to minimize the noise they would make. Due process “prohibit[s] the use of physical restraints
B.
Sharp has, by contrast, cleared the first hurdle by showing error in the admission of an informant‘s out-of-court statement in violation of the Confrontation Clause. See
The government argues that it introduced the informant‘s tip for a nonhearsay purpose: to explain the course of the investigation rather than to assert that the informant‘s account was true. To be sure, a tip need not be true to “provide context for the[] investigation or explain ‘background’
Imagine the following testimony in a murder case:
PROSECUTOR: Why did you start investigating the defendant?
DETECTIVE: An eyewitness told me that the defendant was the shooter.
Such testimony may, just as the government contends here, “explain why the defendant became a suspect or how the officer was able to obtain a search warrant.” United States v. Jones, 930 F.3d 366, 377 (5th Cir. 2019). But surely such a rationale does not permit an end run around the confrontation right. The nonhearsay justification fails because, by recounting a “witness‘s statement to the police that the defendant is guilty of the crime charged,” the officer has introduced an intolerably high risk that the jury will take that statement as proof of the defendant‘s guilt. Id.; see also Taylor v. Cain, 545 F.3d 327, 336 (5th Cir. 2008) (recognizing that testimony similar to the hypothetical violated the defendant‘s confrontation rights). We thus have recognized that “courts must be vigilant in ensuring that these attempts to ‘explain the officer‘s actions’ with out-of-court statements do not allow the backdoor introduction of highly inculpatory statements that the jury may also consider for their truth.” United States v. Sosa, 897 F.3d 615, 623 (5th Cir. 2018) (quoting Kizzee, 877 F.3d at 659).
Although Sharp‘s crime was drug dealing rather than murder, Detective Brea‘s testimony is just as problematic as the hypothetical posed
Backdooring highly inculpatory hearsay via an explaining-the-investigation rationale is a recurring problem. See, e.g., Atkins v. Hooper, 979 F.3d 1035, 1040–41 (5th Cir. 2020); Jones, 930 F.3d at 377–78; Sarli, 913 F.3d at 496; Kizzee, 877 F.3d at 661; Taylor, 545 F.3d at 335. Statements like those made by Detective Brea threaten to “eviscerate the constitutional right to confront and cross-examine one‘s accusers.” United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). The government must take care to avoid eliciting this kind of unconstitutional testimony.
Although the jury should not have heard the informant‘s statement, Sharp cannot establish that the error “affected the outcome of the district court proceedings.” United States v. Thomas, 724 F.3d 632, 645 (5th Cir. 2013) (citation omitted). Overwhelming evidence allowed the jury to find that Sharp distributed drugs and possessed drugs with an intent to distribute them on April 19, 2018. Detective Brea personally observed Sharp drive to a tattoo parlor that day and engage in what looked like a “hand-to-hand transaction” with Joseph Warren, one of the shop‘s employees. Warren himself confirmed Brea‘s suspicion, testifying that police caught him buying
VI.
Sharp next contends that the district court violated his constitutional right to counsel by declining to elevate his standby counsel to full trial counsel when the lawyer suggested it. This court reviews de novo a defendant‘s claim that the district court violated his right to counsel “by allowing him to represent himself at trial.” United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003) (citation omitted).
A criminal defendant has a constitutional right to the assistance of counsel.
A defendant who makes a valid waiver of the right to counsel may reassert the right to an attorney. See United States v. Pollani, 146 F.3d 269, 272 (5th Cir. 1998) Absent a finding that reintroduction of counsel would require delay or “impede the orderly administration of justice,” a district court cannot deny a pro se defendant‘s motion to be represented by counsel. United States v. Smith, 895 F.3d 410, 421 (5th Cir. 2018) (citing Pollani, 146 F.3d at 273). This is not a case, however, in which the district court refused to grant a pro se defendant‘s request to retract his counsel waiver. Cf. Pollani, 146 F.3d at 272.
VII.
Still dissatisfied by his pretrial representation, Sharp presses an ineffective assistance of counsel claim on appeal. Defendants, however, cannot usually bring ineffective assistance claims on direct appeal. United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (citation omitted). The reason is that typically “the record does not provide sufficient detail about [pre-]trial counsel‘s conduct and motivations to allow this court to make a fair evaluation of the merits of the defendant‘s claim.” Id. (quotation omitted). That is the case here. We thus deny Sharp‘s ineffective assistance claim without prejudice to his raising the claim on collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
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The judgment is AFFIRMED.