UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL EUGENE SIMPSON, Defendant - Appellant.
No. 15-1295
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
January 10, 2017
PUBLISH
Elisabeth A. Shumaker, Clerk of Court
Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado, for Appellant Michael Eugene Simpson.
Robert Mark Russel, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the briefs), Denver, Colorado for Appellee United States of America.
Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
Based on a confidential informant‘s report that Mr. Simpson had drugs and guns, law enforcement officers obtained a search warrant for his
- Count 1: Possession of cocaine with intent to distribute,
21 U.S.C. § 841(a)(1) (2012); - Count 2: Possession of a shotgun and ammunition by a felon,
18 U.S.C. § 922(g)(1) (2012); - Counts 3-4: Possession of handguns and ammunition by a felon,
18 U.S.C. § 922(g)(1) (2012); - Count 5: Possession of an unregistered shotgun,
26 U.S.C. § 5861(d) (2012); - Counts 7-14: Possession of ammunition by a felon,
18 U.S.C. § 922(g)(1) (2012).
The district court imposed concurrent sentences of 240 months’ imprisonment for Count 1 and 120 months’ imprisonment for the remaining counts.
Mr. Simpson argues that we should reverse the conviction or, alternatively, the sentence. We affirm the conviction on Count 1 (possession of cocaine with intent to distribute) and Counts 2 and 5 (possession of an unregistered shotgun and ammunition). But we reverse the conviction on the other counts based on plain error in the jury instructions, remanding for a new trial. Finally, we reject Mr. Simpson‘s challenge to the sentence on Counts 1, 2, and 5.
Mr. Simpson raises four challenges to his conviction and one challenge to his sentence.
First, Mr. Simpson asserts that he should have been allowed to represent himself at trial. We reject this assertion.
At a hearing on the morning of trial, Mr. Simpson presented two motions: a written motion to represent himself and an oral motion to continue the trial. The district court asked Mr. Simpson if he was prepared to represent himself without a continuance, and he responded that he was not. From this exchange, the district court apparently understood that Mr. Simpson was not asking to represent himself if the trial were to proceed that morning. Based on this apparent understanding, the court denied the motion for self-representation, reasoning that it had been untimely. Mr. Simpson contends that his self-representation motion was not conditioned on a continuance and was timely.
We conclude that the court did not violate Mr. Simpson‘s right to self-representation. After denying a continuance, the district court did not address the possibility that Mr. Simpson might want to represent himself at that morning‘s trial. But if Mr. Simpson wanted to do that, he needed to make his desire clear. He didn‘t, for he never told the district court whether his self-representation motion was (1) a stand-alone motion or (2)
The district court also properly ruled that Mr. Simpson‘s motion for self-representation had been untimely. In the district court‘s view, Mr. Simpson knowingly waited until the beginning of trial to seek a continuance, using the request as a delay tactic. This reasoning was permissible in light of Mr. Simpson‘s previous request for a continuance immediately before the trial was to begin.
Second, Mr. Simpson challenges the denial of the request for a continuance. We reject this challenge. The court had already granted one last-minute continuance to Mr. Simpson and had no obligation to grant a second last-minute request.
Third, Mr. Simpson challenges the handling of a discovery request. The request stemmed from the government‘s installation of a pole camera outside of Mr. Simpson‘s house prior to the execution of the search warrant. When Mr. Simpson learned of the camera, he asked for the footage, but the government answered that the footage was no longer retrievable because the camera‘s hard drive had crashed. Mr. Simpson then asked to conduct his own inspection of the hard drive, but the district court denied the request. Mr. Simpson challenges the denial of that request,
Under the federal rules, Mr. Simpson would be entitled to discovery only if he had made a prima facie showing that the hard drive would help his defense. In his discovery motion, he tried to meet this standard by suggesting that the hard drive might support a motion to suppress the search warrant. In the motion, Mr. Simpson explained that the footage might be recoverable from the hard drive and, if so, the footage might show that the police informant had lied to law enforcement.
But even if these possibilities materialized, they would not have justified suppression of evidence: The movant cannot obtain suppression of evidence by challenging the informant‘s truthfulness; instead, the movant must show that the police affiant knowingly or recklessly submitted false information. Thus, Mr. Simpson‘s discovery motion provided no reason to believe that Mr. Simpson could satisfy his burden on a motion to suppress.
We also reject Mr. Simpson‘s constitutional challenges. Mr. Simpson did not make these challenges in district court; thus, we review the constitutional challenges only for plain error. Any possible error would not be plain, for we cannot easily infer that the hard drive would have supported Mr. Simpson‘s defense or that the police had acted in bad faith.
Fourth, Mr. Simpson challenges a jury instruction that defined “constructive possession.” As Mr. Simpson argues, the instruction failed to
We reject this challenge as it pertains to Counts 1, 2, and 5. On Count 1, the jury found Mr. Simpson guilty of possession with intent to distribute cocaine. On Counts 2 and 5, the jury was presented with uncontroverted evidence that Mr. Simpson had held a loaded shotgun and had tried to sell it. Thus, for Counts 1, 2, and 5, the omission of “intent” from the jury instruction did not result in prejudice, which forecloses reversal under the plain-error standard.
For the remaining counts, however, we agree with Mr. Simpson. The jury instruction constituted an obvious error that was reasonably likely to create prejudice and to seriously affect the fairness, integrity, or public reputation of the judicial proceedings. As a result, we reverse the conviction on these counts and remand for a new trial.
Fifth, Mr. Simpson contends that the district court erred in increasing the sentence based on Sentencing Guideline § 3C1.2, “Reckless Endangerment During Flight.” According to Mr. Simpson, he was sleeping in his vehicle when police surrounded him and ordered him to show his hands. Rather than comply, Mr. Simpson started his vehicle and rammed a
Mr. Simpson argues that this conduct was not reckless because he reacted instinctively, having just been awoken by individuals mistakenly thought to be assailants. In our view, the district court did not clearly err in finding that Mr. Simpson had known that he was surrounded by police. As a result, the district court did not err in applying § 3C1.2 to determine Mr. Simpson‘s sentence.
II. The Right to Self-Representation
Defendants must clearly assert their constitutional right to self-representation in order to invoke this right. Thus, if Mr. Simpson wanted to represent himself even without a continuance, he needed to make clear that his self-representation motion was not conditioned on the grant of a continuance. But Mr. Simpson did not make that intent clear.
Instead, Mr. Simpson appeared to package together his requests for self-representation and a continuance. In addressing these requests, the district court reasonably found that Mr. Simpson was seeking self-representation as a delay tactic. This finding fell within the district court‘s discretion, and the district court did not err in denying Mr. Simpson‘s request to represent himself.
The Sixth Amendment provides criminal defendants with the right to represent themselves. Faretta v. California, 422 U.S. 806, 819-20 (1975).1 But this right lies in tension with the Sixth Amendment right to counsel. Id. at 832 (noting that self-representation “cut[s] against the grain of this Court‘s decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel“). The right to counsel helps to assure a defendant a fair trial. Id. at 832-33. By contrast, self-representation ordinarily undermines the defendant‘s chance of a favorable outcome. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). In light of this reality, we have noted that the right to counsel serves “both the individual and collective good,” while the right to self-representation protects only “individual interests.” United States v. Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000) (citation omitted).
This distinction results in “constitutional primacy” of the right to counsel. United States v. Smith, 413 F.3d 1253, 1280 (10th Cir. 2005) (citation omitted), abrogated on other grounds by Boyle v. United States, 556 U.S. 938 (2009).
First, the defendant must “clearly and unequivocally” inform the district court of his intention to represent himself. Second, the request must be timely and not for the purpose of delay. Third, the court must conduct a comprehensive formal inquiry to ensure that the defendant‘s waiver of the right to counsel is “knowingly and intelligently” made. Finally, the defendant “must be able and willing to abide by rules of procedure and courtroom protocol.”
United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir. 2006) (citations omitted). In evaluating whether the defendant satisfied these requirements, we “indulge in every reasonable presumption against waiver.” Brewer v. Williams, 430 U.S. 387, 404 (1977); Smith, 413 F.3d at 1280 (citation omitted).
B. Standard of Review
“When a motion to proceed pro se is made, we review de novo whether a constitutional violation occurred and for clear error the factual findings underlying the district court‘s decision to deny the motion.” Smith, 413 F.3d at 1279.
C. The Necessity of a “Clear and Unequivocal” Request
Mr. Simpson did not clearly and unequivocally seek an opportunity to represent himself in the absence of a continuance.
In requiring “clear and unequivocal” expression of a request for self-representation, we protect not only the defendant but also the trial court. United States v. Mackovich, 209 F.3d 1227, 1236 (10th Cir. 2000); United States v. Miles, 572 F.3d 832, 836 (10th Cir. 2009). Without a clear and unequivocal request, the court would face a dilemma, for an equivocal demand creates a potential ground for reversal however the trial court rules. Miles, 572 F.3d at 836. If the court determines that the defendant wants to proceed pro se, the defendant can assert a violation of the right to counsel; if the court provides counsel, the defendant can assert a violation of the right to proceed pro se. Id.
By requiring the self-representation request to be clear and unequivocal, we prevent the trial court from having to guess at the defendant‘s intent. Id. at 836-37. Instead, the court can infer intent from the defendant‘s conduct and representations. Id. at 837; see also United States v. Loya-Rodriguez, 672 F.3d 849, 858-59 (10th Cir. 2012) (finding no clear request—even though the defendant expressly stated in a letter that he wanted to communicate without his attorney—because the letter, when “taken as a whole,” could “fairly be read” to conclude that the defendant was not requesting self-representation). Thus, the absence of a
2. Mr. Simpson failed to clearly and unequivocally state whether he wanted to represent himself even without a continuance.
We conclude that Mr. Simpson did not clearly and unequivocally seek self-representation if the district court were to deny a continuance.
On the morning of trial, Mr. Simpson presented the district court with two motions. The first was a written motion for self-representation. The motion did not expressly ask for a continuance, but implicitly did so by mentioning future discovery procedures. R. vol. 1, at 184 (requesting appointment of advisory counsel to “see that discovery procedures are followed“). The second was an oral motion for a continuance, which was based on the request for self-representation. Read together, the two motions stated that Mr. Simpson wanted to obtain more time for trial and to represent himself at the eventual trial.
But what if the court were to deny the requested continuance? The court explored this possibility, asking Mr. Simpson if he would be prepared to proceed pro se that day; he replied that he would not. R. vol. 3, at 167.
In this setting, Mr. Simpson‘s motion for self-representation could reasonably be read as expressing one of two things:
- I want to represent myself or
I want to represent myself only if the court grants a continuance.
The district court believed that Mr. Simpson meant the latter and, as a result, conflated the two motions and denied them:
- First, the court denied the continuance, stating: “[T]his particular motion for a continuance is -- comes too late.”
- Then, after Mr. Simpson presented further argument, the court denied the self-representation motion, responding: “I still find that the request for you to represent yourself . . . is late.”
Id. at 169, 176 (emphasis added). Mr. Simpson contends that the district court should not have conflated the two requests, but we reject this contention.
We do so because Mr. Simpson did not clearly and unequivocally state that he wanted to represent himself even without a continuance. We must consider Mr. Simpson‘s statements in context and consider the inferences reasonably drawn by the district court. See United States v. Miles, 572 F.3d 832, 837 (10th Cir. 2009) (district court may “reasonably dr[a]w . . . inference[s]” from a defendant‘s action or inaction to decipher the defendant‘s intent). Thus, even when defendants appear to request self-representation, their other statements or actions may render the requests unclear or ambiguous. See United States v. Bennett, 539 F.2d 45, 50-51 (10th Cir. 1976) (defendant expressly requested self-representation, but his additional statements rendered his position on self-representation unclear); see also United States v. Loya-Rodriguez, 672 F.3d 849, 858 (10th Cir. 2012) (defendant‘s statement in a letter that he wanted “to communicate without the help of an attorney” was unclear, given the context of the letter and the defendant‘s subsequent silence when the district court invited the defendant to address the court if he wished).2
The written self-representation motion indicated a desire to engage in further discovery. Then, when the pretrial hearing began, Mr. Simpson orally requested a continuance. This request led the district court to ask Mr. Simpson if he was prepared to represent himself without a continuance; Mr. Simpson answered that he was not. This answer led the court to understand that Mr. Simpson did not want to proceed pro se without a continuance.
We do not know if this understanding was correct, but it was at least reasonable. See Miles, 572 F.3d at 837. Mr. Simpson could easily have clarified that he wanted to represent himself even without a continuance. But he admittedly “never asked if this w[ere] an option.” Appellant‘s Opening Br. at 20.
In similar circumstances, we have indicated that the trial court could reasonably conclude that defendants wanted to represent themselves only if certain conditions were met. For example, in Stallings v. Franco, the defendant filed multiple motions, one stating that he wanted to proceed pro
Similarly, in United States v. Smith, the defendant made a self-representation request, but was unprepared for trial. 413 F.3d 1253, 1281 (10th Cir. 2005). Even though the defendant did not request a continuance, we assumed that granting the request “would mandate another lengthy continuance to allow Mr. Smith to prepare for his own defense.” Id.; see also United States v. Tucker, 451 F.3d 1176, 1181 (10th Cir. 2006) (noting that in Smith, the need for a continuance was a “case-specific factor[] that made it proper for the district court to deny the defendant‘s motion“).
We have also held that a defendant‘s request is not unequivocal when it simultaneously appears to request self-representation but adds a qualification that confuses what the defendant wants. For example, in United States v. Callwood, the defendant asserted that he preferred not to be represented by counsel, but he also said that he “at least” wanted to question a witness himself. 66 F.3d 1110, 1114 (10th Cir. 1995). We noted that the defendant had “never made any other statement regarding his
A similar issue arose in United States v. Bennett, 539 F.2d 45 (10th Cir. 1976). There the defendant asked to represent himself only at particular portions of the trial (hybrid representation). Bennett, 539 F.2d at 49-50. After the court denied that request, the defendant requested self-representation and the court granted his request. Id. at 50. But then the defendant reiterated that he preferred hybrid representation, causing the court to reinstate counsel. Id. This action led the defendant to renew his motion for self-representation. We concluded that the defendant‘s motions and statements, in context, failed to present “a clear and unequivocal position on self-representation.” Id. at 51.
Drawing on these opinions for guidance,4 we conclude that Mr. Simpson did not clearly and unequivocally say whether his self-representation motion was a conditional motion or a stand-alone motion.5
The dissent disagrees, characterizing Mr. Simpson‘s request for self-representation as clear and unambiguous. Dissent at 2-4. In our view, the approach fails to accord deference to the district court‘s consideration. This deference is particularly appropriate in light of the presumption favoring exercise of the right to counsel. United States v. Smith, 413 F.3d 1253, 1280 (10th Cir. 2005); see pp. 8-9, above.
There were two possible ways to read the record. The dissent points to one possibility: that Mr. Simpson wanted to represent himself with or
denial of a continuance. See Appellant‘s Opening Br. at 17 (“[T]he court assumed without asking Mr. Simpson that in the absence of a continuance, he would prefer to proceed to trial with his court-appointed counsel . . . .” (emphasis added)); Oral Argument at 2:14-2:35 (response by Mr. Simpson‘s counsel—after being asked whether Mr. Simpson had unequivocally expressed an intent to proceed pro se without a continuance—stating that ”the record isn‘t quite that clear” (emphasis added)); id. at 3:00-3:10 (“There was never a question to Mr. Simpson saying, look, I‘m not going to give you a continuance, so you . . . have to pick, you have to go to trial with [your attorney] or you can represent yourself. And that‘s what we‘re missing here.” (emphasis added)); id. at 3:13-3:23 (“Because the court treated the two [motions] as being one motion . . . we never got the answer as to whether Mr. Simpson wanted to represent himself even with no continuance.” (emphasis added)).
3. The government argued that in context, Mr. Simpson had failed to clearly and unequivocally seek self-representation in the absence of a continuance.
The dissent questions the existence of an issue involving the clarity of Mr. Simpson‘s right to self-representation, stating that the government did not raise the issue either in district court or on appeal. Dissent at 1-2. We respectfully disagree.
In district court, the government was never asked for its position on self-representation. This issue did not arise until the day of trial, so the government never had an opportunity to brief the issue. When the parties appeared for trial, the district court questioned Mr. Simpson, who said that he was unprepared to represent himself that day. The court then denied Mr. Simpson‘s motions, and Mr. Simpson proceeded to trial with counsel without further objection. At this point, the government would have had
This issue arose on appeal, and the government spoke up. Like the district court, the government interpreted Mr. Simpson‘s request for self-representation as conditional on a continuance: “Simpson plainly stated that he was not able to represent himself on the day of trial. V.1 at 167. It was abundantly clear that Simpson‘s request for self-representation was inherently linked to a request for significant delay.” Appellee‘s Resp. Br. at 13.
The government did not question the clarity of the request for self-representation if the district court were to continue the trial. Nor do we. The difficulty lies if the court were to deny a continuance of the trial. In that circumstance, the government argues that Mr. Simpson did not ask for
4. The district court was not required to further inquire into Mr. Simpson‘s intent.
Mr. Simpson argues that the district court should have asked for clarification. But we have never required a district court to clarify an equivocal request. See United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir. 2006) (noting that if a defendant does not “properly invoke[] his right to self-representation,” the district court can deny the request); United States v. Taylor, 113 F.3d 1136, 1143 (10th Cir. 1997) (noting that only after a defendant makes an “unmistakable” self-representation request is the trial court obligated to ensure that the defendant knowingly and intelligently intends to waive counsel).
In light of our presumption against waiver of the right to counsel, we conclude that Mr. Simpson did not make an unequivocal request for self-representation in the absence of a continuance. Thus, the district court had no obligation to clarify Mr. Simpson‘s intent.
5. The district court‘s statements about Mr. Simpson‘s lack of preparedness do not change the result.
In denying the motion, the district court commented on Mr. Simpson‘s lack of preparedness to represent himself without a continuance:
[T]his particular motion for a continuance is -- comes too late. It‘s on the day of trial. Mr. Simpson is not in a position to represent himself on this matter. . . .
. . . [C]oming once again on the day of trial, the request to continue the trial, especially given the fact that Mr. Simpson is not in a position, understandably, since he is not an attorney, to step in and represent himself is too late.
R. vol. 3, at 169. But criminal defendants have a right to self-representation even when they are unprepared. Godinez v. Moran, 509 U.S. 389, 400 (1993). Pointing to this right, Mr. Simpson suggests that the district court erred by disallowing self-representation based on a lack of preparedness.
This suggestion is unpersuasive. A district court‘s comments regarding a defendant‘s lack of preparedness do not automatically justify reversal. Here, the comments did not drive the ruling, for the district court apparently believed that Mr. Simpson had conditioned his self-representation motion on the grant of a continuance.
Though Mr. Simpson‘s characterization is possible, the court‘s comments are ambiguous; we therefore will not construe the comments as improper. See United States v. Nacchio, 555 F.3d 1234, 1242 (10th Cir. 2009) (en banc) (“When a district court‘s language is ambiguous . . . it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion.” (ellipsis in original) (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 386 (2008))).
While we agree with Mr. Smith that his knowledge of the law and his ability to represent himself have no bearing on his choice to proceed pro se, several other reasons support the District Court‘s decision.
Id. (emphasis added) (citation omitted). In light of this observation, we upheld the denial of the defendant‘s motion for self-representation. Id. at 1281.
Similarly, in United States v. Bennett, 539 F.2d 45, 50 (10th Cir. 1976). As in Smith, we acknowledged that a defendant‘s “lack[] [of] expertise or professional capabilities [could not] justify denying the right of self-representation.” Id. at 51. Nonetheless, we affirmed because the record had shown forfeiture of the right to self-representation. Id.
Baker and McKinley are distinguishable because in the present case, the district court‘s ruling is supported by a valid reason: the absence of a clear, unequivocal request for self-representation in the absence of a continuance.
D. The district court properly denied Mr. Simpson‘s motion for self-representation as untimely.
Having interpreted Mr. Simpson‘s motion for self-representation as conditioned on the request for a continuance, the court concluded that the motion was untimely. According to Mr. Simpson, his motion was timely because it preceded impanelment of the jury. The government responds that the district court viewed the motion as untimely because it had constituted
1. A motion for self-representation is timely if it precedes impanelment of the jury unless the motion constitutes a delay tactic.
Until we addressed the issue in United States v. Tucker, our circuit had not clearly said what it meant for a motion to be “untimely.” In United States v. Mackovich, 209 F.3d 1227, 1236 (10th Cir. 2000). These requirements included the making of a request for self-representation “in a timely fashion.” Id. Though we did not expressly mention “delay” in articulating the timeliness requirement, we affirmed because the defendant‘s motion had constituted an attempt “to delay the trial.” Id. at 1238. We tied the concept of “delay” to the requirement of a clear, unequivocal request (the first requirement), stating that because the motions had been intended to delay the proceedings, they had not qualified as “unequivocal requests for self-representation.” Id.
In United States v. Akers, 215 F.3d 1089, 1097 (10th Cir. 2000). We cited Mackovich and identified the same list of requirements. Id. We held that the defendant‘s motion was “timely” because it had preceded the trial. Id. But we upheld the denial of the defendant‘s self-representation motion because it constituted a delay tactic. Id. at 1097-99. We treated this
The waters were muddied in United States v. Smith, 413 F.3d 1253 (10th Cir. 2005). There we held that the defendant‘s motion was untimely because it constituted a delay tactic even though the motion had been made six days before trial. Smith, 413 F.3d at 1281. This determination seemed to conflict with Akers. Under Akers, Mr. Simpson‘s motion would have appeared timely because it had preceded the trial.
Clarity came with United States v. Tucker, 451 F.3d 1176 (10th Cir. 2006). In Tucker, we acknowledged the lack of clarity regarding when a self-representation motion is timely. 451 F.3d at 1180. In creating a new bright-line rule, we explained that the concept of “delay” relates to the timeliness of the request: “[A] motion for self-representation is timely if it is made before the jury is impaneled, unless it is a tactic to secure delay.” Id. at 1181. Our opinion in Tucker clarifies that a motion for self-representation is untimely when
- the jury has already been impaneled or
- the defendant is attempting to delay the proceeding.
The resulting inquiry involves two steps. First, did the district court make a finding of delay? Second, if the court made this finding, was it erroneous?
The district court made a delay finding. The district court did not expressly state that Mr. Simpson was trying to delay the proceeding. But we conclude that the district court did so implicitly.
In denying Mr. Simpson‘s motion, the district court apparently applied the new rule set out in Tucker. There we listed three factors bearing on consideration of the delay:
[T]he determination whether a motion for self-representation is a tactic to secure delay . . . includes such considerations as [(1)] the actual delay that would be caused by granting the motion, [(2)] whether the delay could have been avoided if the defendant had made the request for self-representation earlier, and [(3)] whether the defendant had good reasons for not making the motion in a more timely manner.
Tucker, 451 F.3d at 1181-82. The district court tracked each factor in finding that the motion was untimely.
Tucker Factor No. 1 (actual delay). The district court expressed concerns of actual delay, noting that a continuance of the trial would disrupt the court calendar and “inconvenience government witnesses” because “everyone [was] ready to go.” R. vol. 3, at 169-70.
Tucker Factor No. 3 (whether the defendant had provided good reasons for the delay). The district court concluded that Mr. Simpson had not provided good reasons for the delay. Id. at 169 (“The reason [Mr. Simpson] asks for a continuance I find is not a good one.“). This conclusion contained three parts. First, the court discounted Mr. Simpson‘s assertion that he had not known when the trial was to begin. Id. at 168 (“[T]here is no reasonable expectation that there wouldn‘t be a trial . . . .“). Second, the court rejected Mr. Simpson‘s explanation for his dissatisfaction with his attorney. Id. at 168, 175. Finally, the court noted that Mr. Simpson had previously made a last-minute motion for a continuance. Id. at 169 (noting that Mr. Simpson had made his request “once again” on “the day of trial“).
The district court‘s statements also reflected a finding of delay. For example, the court asked Mr. Simpson why he had “delay[ed] in filing this particular motion.” Id. at 171 (emphasis added).
Of course, it is possible that the district court did not know the law. For example, the district court may not have read Tucker. So perhaps the district court‘s timeliness finding was based on something other than delay. But we decline to presume that possibility. “When a district court‘s language is ambiguous . . . it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion.” United States v. Nacchio, 555 F.3d 1234, 1242 (10th Cir. 2009) (en banc) (ellipsis in original) (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 386 (2008)). Thus, we can fairly interpret the district court‘s ruling as based on Mr. Simpson‘s use of a delay tactic.
The record supports the district court‘s findings. Mr. Simpson asserts two primary challenges to the district court‘s reasoning: (1) He made his motion as soon as he could, and (2) the district court improperly relied on the previous request for a continuance on the day of trial.
We reject these challenges. Mr. Simpson argues that he made his motion on the day of trial because he had just learned that his attorney had failed to file various motions. Appellant‘s Opening Br. at 21-22. But, at
III. We affirm the denial of Mr. Simpson‘s request for a continuance.
Mr. Simpson also challenges the denial of his request for a continuance. We reject this challenge.
In considering this challenge, we apply the abuse-of-discretion standard. United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (en banc). This standard requires us to consider Mr. Simpson‘s diligence in requesting a continuance, the likelihood that a continuance would
These considerations provide reasonable support for the district court‘s ruling. The district court had previously obtained a last-minute continuance based on a change in counsel, and Mr. Simpson admits that another last-minute continuance “would have inconvenienced the court and the prosecution.” Appellant‘s Opening Br. at 22. The inconvenience would affect not only the court and the prosecution but also jurors and witnesses:
Of course, any continuance granted practically on the eve of trial inevitably will disrupt the schedules of the court, the opposing party, and the witnesses who have been subpoenaed or who have voluntarily arranged their schedules to attend the trial. When, as here, a jury trial is involved, there is additional potential inconvenience to jurors and to the court.
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (en banc) (footnote omitted).
Mr. Simpson‘s only stated justification for the continuance was his desire to represent himself, but that request had been denied. Thus, the district court did not abuse its discretion when denying another continuance of the trial.
IV. The Pole Camera
In their investigation, the police used information from a confidential informant. The informant told police that on June 12, 2014, he had seen
After the warrant was executed, Mr. Simpson learned that police had installed a “pole camera” outside of his home on June 5, 2014. Mr. Simpson thought that the footage might show that he had not left his house with a firearm on June 12. As a result, he requested the footage. The government responded that the footage had been stored on a hard drive, but added that the hard drive had crashed, rendering the footage unavailable.
Mr. Simpson moved for authorization to inspect the hard drive. He explained that he might be able to recover the footage, which could reveal that the informant had lied about Mr. Simpson leaving his house with a firearm. If the informant had lied, Mr. Simpson theorized, he could move to suppress the results of the search:
If in fact [the informant] fabricated that information . . . and if law enforcement officers knew or should have known of the fabrication, that information should have been included in the affidavit in support of the application for the search warrant. It was not so included, and discovery thereof would give Defendant Simpson grounds for a second motion to suppress the results of the search warrant on the grounds that exculpatory material was omitted, either deliberately or with reckless disregard, from the search warrant affidavit.
R. vol. 1, at 93 (footnote omitted). The district court denied the motion. According to Mr. Simpson, this denial violated
Under
1. Mr. Simpson bore the burden to make a prima facie showing of materiality, and we review the district court‘s ruling only for an abuse of discretion.
The defendant bears the burden to make a prima facie showing of materiality. United States v. Carrasquillo-Plaza, 873 F.2d 10, 12 (1st Cir. 1989); 2 Charles Alan Wright, Federal Practice and Procedure § 254 (4th ed. 2009). The district court ruled that Mr. Simpson had not made this showing. We review this ruling only for an abuse of discretion. United States v. Apperson, 441 F.3d 1162, 1191 (10th Cir. 2006).
2. In his discovery motion, Mr. Simpson did not make a prima facie showing of materiality.
In his discovery motion, Mr. Simpson speculated that the footage could diminish the informant‘s veracity, which in turn could provide grounds to suppress the results of the search warrant. But to justify suppression, Mr. Simpson needed to attack the veracity of the police affiant, not the informant. United States v. Long, 774 F.3d 653, 661 (10th Cir. 2014). Thus, the district court concluded that Mr. Simpson‘s theory would not support suppression of the evidence. R. vol. 3, at 824.
3. Mr. Simpson‘s new arguments are not persuasive.
On appeal, Mr. Simpson makes two new arguments for materiality of the hard drive:
- The police might have known that the confidential informant had provided false information, as one of the police officers testified at trial that he had been able to view some of the footage.11
- Access to the hard drive might have allowed impeachment or rebuttal of the confidential informant‘s trial testimony.12
Because Mr. Simpson did not make these arguments in district court, our review is only for plain error. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). The plain-error standard contains four elements:
The district court made an error. - The error was plain.
- The error affected the defendant‘s substantial rights.
- The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.
United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012). In rejecting Mr. Simpson‘s arguments, we rely on the third element, which requires a “reasonable probability” that the outcome would be different. Id. at 1042-43.
This burden entails more than allegations about what the video would show. Instead, Mr. Simpson had to show prejudice based on evidence. See United States v. Gonzales-Huerta, 403 F.3d 727, 736 (10th Cir. 2005) (en banc) (holding that the defendant “bears the burden to establish by a reasonable probability based upon the record on appeal that his substantial rights were affected“).
Mr. Simpson cannot satisfy this burden because he cannot show what would be depicted on the video. This inability is not Mr. Simpson‘s fault; nonetheless, this inability prevents Mr. Simpson from satisfying the third element of the plain-error standard.
B. Brady v. Maryland
Mr. Simpson argues that the government‘s failure to provide the hard drive violated the government‘s disclosure obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963). Because Mr. Simpson did not make this argument in district court, our review is for plain error. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). For the second element, an error is considered “plain” only if it is “so clear or obvious that it could not be subject to any reasonable dispute.” United States v. Courtney, 816 F.3d 681, 684 (10th Cir.), cert. denied, 2016 WL 4141537 (Oct. 3, 2016).
To prevail on his Brady claim in district court, Mr. Simpson had to demonstrate three elements:
- The prosecution suppressed evidence.
- That evidence was favorable to Mr. Simpson.
- The suppressed evidence was material.
United States v. Acosta-Gallardo, 656 F.3d 1109, 1117 (10th Cir. 2011).
To decide this issue, we apply the second element of the plain-error test (the existence of an obvious error) to the second element of Mr. Simpson‘s underlying claim (the favorable nature of the suppressed evidence). In our view, Mr. Simpson has not satisfied his burden because the hard drive would not obviously have favored Mr. Simpson.
Our opinion in United States v. Acosta-Gallardo is persuasive. Id. In that case, the police waited too long to disclose that a witness would testify about the defendant‘s handling of various jars used to store methamphetamine. Id. The defendant alleged a Brady violation, arguing that if he had known about the proffered testimony earlier, he would have
Similarly, no one knows whether the hard drive would have been favorable to Mr. Simpson. Mr. Simpson would need to successfully retrieve the footage from the crashed hard drive and then show that the footage had not depicted him brandishing a firearm. Thus, the footage was not plainly favorable to Mr. Simpson‘s defense.13
Mr. Simpson also relies on Arizona v. Youngblood, 488 U.S. 51, 58 (1988), where the Supreme Court held that the police‘s bad-faith failure to preserve potentially exculpatory evidence may violate the right to due process. Mr. Simpson asserts that the district court should have inquired into the circumstances in which the hard drive crashed. Because Mr. Simpson did not make this argument in district court, we confine our review to the plain-error standard. See pp. 33-34, above. Under this standard, we reject Mr. Simpson‘s argument, for the existence of a Youngblood violation was not obvious.14
Five factors bear on the inquiry into bad faith:
First, the Ritchie Court was not reviewing Brady‘s favorability requirement. Rather, the Court was responding to the State‘s specific arguments regarding the third Brady prong (materiality). Because the Court was not considering Brady‘s favorability prong, our opinion in Acosta-Gallardo constitutes the governing precedent. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38 (1952) (stating that an opinion does not constitute binding precedent on an issue not discussed).
Second, unlike in Ritchie, we are reviewing the district court‘s ruling under the plain-error standard. See United States v. Mota, 685 F.3d 644, 649 (7th Cir. 2012) (noting that the plain-error standard in the Brady context is stricter than the general Brady standard). We do not foreclose the possibility that an error might have taken place; rather, we simply hold that any error would not have been plain.
whether the government had explicit notice that [the defendant] believed the [evidence] was exculpatory; - whether the claim that the evidence is potentially exculpatory is conclusory, or instead “backed up with objective, independent evidence . . .“;
- whether the government could control the disposition of the evidence once [the defendant] indicated that it might be exculpatory;
- whether the evidence was central to the case; and
- whether the government offers any innocent explanation for its disposal of the evidence.
United States v. Smith, 534 F.3d 1211, 1224-25 (10th Cir. 2008) (citation omitted). Two factors weigh against Mr. Simpson.
First, Mr. Simpson‘s claim is conclusory, for he has no way of knowing whether the hard drive would have contained anything exculpatory.
Second, the government had an innocent explanation for the loss of the footage: The hard drive crashed.
Mr. Simpson argues that further inquiry might have generated proof of bad faith. But again, the district court did not plainly err by failing to inquire further.
According to Mr. Simpson, the court “never conducted any inquiry into whether the government had knowledge of the [hard drive‘s] exculpatory value.” Appellant‘s Opening Br. at 32. But the government expressly represented that it had no such knowledge. Further inquiry could have appeared unnecessary.
* * *
In applying the plain-error standard, we conclude that the district court did not commit reversible error by disallowing further inquiry into the unavailability of the hard drive.
V. The Jury Instructions
Mr. Simpson also challenges a jury instruction that defined “constructive possession“:
A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it.
Supp. R. vol. 3, at 204. Under this instruction, the jury could find constructive possession over any items that Mr. Simpson knowingly had the power to control, such as the guns, ammunition, and drugs.
Because Mr. Simpson did not raise this objection in district court, our review is for plain error. See United States v. Lin, 410 F.3d 1187, 1190 (10th Cir. 2005); see also pp. 33-34, above.
The government concedes that the first two elements of the plain-error test are satisfied: the existence of an error and the plain or obvious nature of that error. See pp. 33-34, above. We agree with the parties that the first two elements are satisfied.
The parties’ disagreement involves the third and fourth elements: whether the error affected Mr. Simpson‘s substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). We reject Mr. Simpson‘s arguments on Counts 1, 2, and 5, but agree with Mr. Simpson on the remaining counts.
A. Count 1 (Possession of Cocaine with Intent to Distribute)
For Count 1, the jury found not only that Mr. Simpson had possessed cocaine, but also that he had intended to distribute the cocaine. Mr. Simpson could intend to distribute the cocaine only if he intended to possess it, for he could not distribute something that he didn‘t have. See United States v. Paredes-Rodriguez, 160 F.3d 49, 55 (1st Cir. 1998) (“[I]t simply makes no sense to assert that the same jury that found that [the defendant] intended to distribute the cocaine could have simultaneously found that he did not intend to possess it.“). Thus, we know that the instructional error did not affect the outcome on the charge of possession with intent to distribute.
Because the jury found Mr. Simpson guilty on this count, we know that the jury would have found that Mr. Simpson had intended to possess the cocaine.15 In these circumstances, the outcome on Count 1 would likely
B. Counts 2 and 5 (Unlawful Possession of an Unregistered Shotgun and Ammunition)
We also conclude that on Counts 2 and 5, Mr. Simpson cannot show a reasonable likelihood of a different outcome without the erroneous jury instructions.
Police found a loaded shotgun inside Mr. Simpson‘s garage. At trial, an officer testified that Mr. Simpson had admittedly held the shotgun and tried to sell it about a month prior to his arrest. R. vol. 3, at 645-46. Mr. Simpson did not impeach the officer or present any evidence contradicting the officer‘s testimony. At closing argument, the government urged the jury to consider that testimony when deciding the verdict. Id. at 687. The jury found that Mr. Simpson had possessed the loaded shotgun.
In reaching this finding, the jury likely believed the officer‘s uncontradicted testimony that Mr. Simpson had intentionally handled the shotgun and tried to sell it.16 As a result, we believe that a properly
C. Counts 3-4 and 7-14 (Unlawful Possession of Handguns and Ammunition)
The remaining counts involve the discovery of handguns and ammunition for the handguns:
- Count 3: A Bersa .380 caliber handgun and ammunition was found in an unlocked safe in Mr. Simpson‘s basement.
- Count 4: A Smith & Wesson .40 caliber handgun and ammunition was found under the driver‘s seat of a car registered to Mr. Simpson‘s wife.
- Counts 7 to 10: Ammunition was found in an unlocked safe in Mr. Simpson‘s basement.
- Counts 11 to 13: Ammunition was found in Mr. Simpson‘s kitchen cabinets and on top of his refrigerator.
- Count 14: Ammunition was found on a desk in Mr. Simpson‘s basement.
Mr. Simpson jointly occupied each of these locations with his wife, and visitors had access to these places. Thus, Mr. Simpson urges a reasonable probability that a properly instructed jury would have found him not guilty on Counts 3-4 and 7-14. We agree with Mr. Simpson.
1. The Third Element
Under the third element of the plain-error standard, “[a] plainly erroneous jury instruction affects a defendant‘s ‘substantial rights’ if the instruction concerns a principal element . . of the crime, thus suggesting
This test was satisfied, for the erroneous jury instruction had omitted an important element of the crime, intent, and the defense‘s theory had focused on that element. To counter this defense, the government emphasized in closing argument that the jury should find guilt if Mr. Simpson had known of the handguns and ammunition and had enjoyed the ability to control them. See United States v. Bader, 678 F.3d 858, 869 (10th Cir. 2012) (noting that the prosecution‘s theory at closing argument bears on whether an erroneous jury instruction was prejudicial). The government‘s argument would have been untenable if the jury had been told of the intent element.
The government points to evidence that could support a finding of intent. For example, a police informant testified that he had seen Mr. Simpson discussing, holding, and brandishing firearms. In addition, a police officer testified that Mr. Simpson had admittedly held each of the handguns.
Even with the government‘s evidence, there is a reasonable probability that the outcome would have been different with a correct jury
The government also points to the evidence that Mr. Simpson had admitted holding the handguns. But the jury could have concluded that Mr. Simpson had handled the handguns at a time different than that alleged in the indictment.
The district court instructed the jury that possession of the handguns and ammunition must have taken place on or about June 19, 2014. The jury was also told that the government had to prove beyond a reasonable doubt that Mr. Simpson had possessed the guns and ammunition reasonably near the dates reflected in the jury instructions.
There was little evidence about when Mr. Simpson had handled the handguns; the police officer said only that Mr. Simpson had admittedly
Based on that testimony, the jury could have concluded that Mr. Simpson had not handled the handguns on or about June 19, 2014. Therefore, the jury could reasonably have concluded that Mr. Simpson had not intended to possess the handguns and ammunition on or about the applicable dates. In these circumstances, the instructional error affected Mr. Simpson‘s substantial rights on Counts 3-4 and 7-14.
2. The Fourth Element
Finally, we conclude that the instructional error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
To satisfy this test, a defendant would need to show that the error is “particularly egregious” and that failure to notice the error would result in a “miscarriage of justice.” United States v. Johnson, 414 F.3d 1260, 1264 (10th Cir. 2005). But because the present case involves a constitutional error, our analysis is “less rigid[].” Id.; see Neder v. United States, 527 U.S. 1, 12 (1999) (“[A]n improper instruction on an element of the offense violates the Sixth Amendment‘s jury trial guarantee.“).
A failure to properly instruct the jury on an element would not always satisfy the fourth element of the plain-error test. United States v. Wolfname, 835 F.3d 1214, 1223 (10th Cir. 2016). But because the government‘s evidence on intent was not overwhelming, the instructional
***
We conclude that (1) the district court plainly erred in instructing the jury on Counts 3-4 and 7-14, (2) the error affected Mr. Simpson‘s substantial rights, and (3) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
VI. Reckless Endangerment
Mr. Simpson‘s arrest involved a struggle, resulting in a sentencing enhancement. Mr. Simpson challenges the enhancement, and we reject the challenge.
As the police executed the search warrant, Mr. Simpson was sitting in the driver‘s seat of his car with the seat in a reclined position. He says that he was asleep and intoxicated.
While he was allegedly sleeping, the police parked a SWAT vehicle behind Mr. Simpson‘s car to block it in. The police then approached Mr. Simpson‘s vehicle in SWAT gear with guns and flashlights drawn,
At sentencing, the district court determined that this conduct justified application of
We review the district court‘s finding for clear error. United States v. Conley, 131 F.3d 1387, 1389 (10th Cir. 1997). In applying this standard, we view the evidence and draw all reasonable inferences in the light most favorable to the court‘s finding. Id.
The district court found that Mr. Simpson had known that he was surrounded by police officers and had acted purposefully. The court
- the police had ordered Mr. Simpson to show his hands and
- Mr. Simpson could have seen the police through his windows.
R. vol. 3, at 900. Based on this conduct, the district court found that Mr. Simpson had acted recklessly when starting his vehicle and ramming it into the SWAT vehicle. Id. at 900-01.
The district court‘s determination was not clearly erroneous. Were we the trier of fact, we might have come to a different conclusion. The night was dark, and the police were shining flashlights at Mr. Simpson. Mr. Simpson might have been afraid and unaware that the individuals were police officers. But, viewing the evidence and drawing all reasonable inferences favorably to the district court‘s finding, we conclude that the district court‘s finding was not clearly erroneous. Thus, we affirm the court‘s application of the enhancement for reckless endangerment.
VII. Disposition
We affirm Mr. Simpson‘s conviction and sentence on Counts 1, 2, and 5. For the remaining counts, we reverse Mr. Simpson‘s conviction and remand for a new trial.
United States v. Simpson, No. 15-1295
EBEL, J., dissenting.
Contrary to the majority opinion, I would hold that the district court erred by denying Simpson his constitutional right to represent himself. Therefore, I would reverse the convictions. Since I do not prevail on that issue, I am also writing separately to supplement the majority‘s reasoning on the pole-camera video evidence. On that issue, I agree with the majority that there was no error regarding the exclusion of that evidence insofar as the search warrant was concerned—and, regarding the use of that evidence for impeachment at trial, Simpson has not satisfied the third prong of plain-error review. I write separately only because of the potential for a new trial here during which Simpson will have a new opportunity to request inspection of the pole camera video evidence for trial purposes. In that eventuality, if Simpson were to preserve the issue properly, I believe he has offered a theory of materiality that satisfies his prima facie burden under
I. Right to self-representation
The majority opinion finds two reasons why Simpson‘s self-representation motion was defective—that it was not “clear and unequivocal” and that it was a delay tactic.
A. Clear and unequivocal
Our case law requires a “clear and unequivocal” request to dispense with counsel. While the majority opinion concludes that Simpson‘s request was not clear enough, the district court did not address that question and the government never argued it below or on appeal.1 So at the outset I am skeptical of relying on an argument that was neither argued below nor preserved on appeal.2
Simpson in fact did clearly and unequivocally invoke his constitutional right to represent himself. On the morning of trial, Simpson submitted a handwritten motion for self-representation, which unambiguously asserted his right to proceed pro se. (Motion to Proceed in Propria Persona, Sui Juris, R. Vol. I at 183-84) (“Comes now, Michael E. Simpson, the Accused, proceeding in Propria Persona, Sui Juris[,] and respectfully moves this court to grant the above entitled motion[.]“). His motion cites and explains the touchstone Supreme Court case recognizing that constitutional right, Faretta v. California, 422 U.S. 806, 819-820 (1975), and enumerates reasons why he was dissatisfied with his lawyer, many of which had only arisen within the preceding few days. This unambiguous written request should be the end of the matter.
But the majority finds ambiguity in that document because it also requests the appointment of advisory counsel for several purposes, including assistance with discovery procedures.3 (Maj. Op. at 10-11). Contrary to the majority opinion, I would not read this reference to discovery as “implicitly” requesting a continuance, (Maj. Op. at 11), thereby muddying the clarity of the written motion for self-representation. Instead, the discovery reference only suggests that Simpson hoped his separate oral motion for a continuance would be granted, and that an advisory lawyer could assist with discovery matters before the newly scheduled trial date. But even assuming there was an implicit request for a continuance in the written motion for self-representation, it would not dilute the clarity of his distinct request for self-representation. It is difficult to imagine how a defendant could be any more “clear and unequivocal” than what Simpson wrote in this motion.
The majority then turns to the oral colloquy between the trial court and Simpson to find ambiguity where, in my view, there is none—at least none attributable to Simpson. The record shows that Simpson (1) asked to represent himself and, because he was not prepared to do so that day, he (2) requested a continuance. These are two separate, but related, motions. I agree with the majority that the district court “conflated” them. (Maj. Op. at 12). But the majority concludes this conflation was reasonable, and thus not erroneous, because of a particular back-and-forth between Simpson and the district court. That conversation is worth considering again:
THE COURT: Okay. So, Mr. Simpson, let me just ask you this, and that is is [sic] what you are you are asking for a continuance, but you are also asking to represent yourself in this proceeding, but with advisory counsel appointed?
THE DEFENDANT: Yes.
THE COURT: Would you be prepared to go to trial today representing yourself?
THE DEFENDANT: No, sir, not today.
R. Vol. III at 167. When Simpson said he would not be prepared for trial that day, the district court was assuming that Simpson only wanted to represent himself if he received a continuance, i.e., that the self-representation motion was conditional on moving back the trial date.
But that interpretation was unreasonable. The context of the conversation was whether to move back the trial date. As such, in responding that he was unprepared for trial that day, Simpson was simply arguing that the court should grant the continuance based on his lack of preparedness—he did not in any way state, nor imply, that he would revoke his self-representation motion if a continuance was denied. To the extent that the district court believed otherwise, that was not Simpson‘s fault. Even still, however, the majority holds that Simpson should have clarified that ”he wanted to represent himself even without a continuance.” (Maj. Op. at 13) (emphasis added). But our case law has never required that a defendant bolster an otherwise unmistakable motion for self-representation with a supplemental assertion that he remains earnest in that request notwithstanding the outcome on other pending motions.
The majority then turns to case precedent that found ambiguity in the request for self-representation under different circumstances. But those cases involved situations where there was far more doubt as to whether the defendants actually were invoking their self-representation right. In United States v. Miles, (cited by Maj. Op. at 12, 13), we found waiver of the self-representation right when the district court asked the defendant, “Are you now asking counsel to take over for you?,” to which he responded “I think, at this point, yes.” 572 F.3d 832, 837 (10th Cir. 2009). In other words, the defendant affirmatively declared he wanted his lawyer to take over for him. That did not happen here. In fact, just the opposite, as Simpson repeatedly expressed dissatisfaction with his lawyer and affirmatively asked to represent himself.
In Stallings v. Franco, (cited by Maj. Op. at 13), an unpublished case, the defendant submitted multiple motions, one of which actually asked for appointment of a lawyer outside the Public Defender‘s office, and another stated: ”Although I did ask to go pro-se, I am not prepared at this time for trial, because I do not know the rules and procedures in a New Mexico jury trial.” 576 F. App‘x 820, 823 (10th Cir. Aug. 20, 2014) (unpublished) (emphasis added). With no accompanying request for a continuance, and by prefacing his statement with the word “although,” it was reasonable for the district court in Stallings to conclude that he was qualifying or retreating from his earlier motion for self-representation.
In United States v. Smith, (cited by Maj. Op. at 14), the Tenth Circuit did not expressly ground its decision on the ambiguity of the defendant‘s request, but rather on its untimeliness. 413 F.3d 1253, 1279 (10th Cir. 2005) (after reviewing the law, including the “clear and unequivocal” standard, “we conclude that the District Court did not err when it found that [defendant] did not intend to abide by courtroom decorum and that his request was not timely made.“), abrogated on other grounds by Boyle v. United States, 556 U.S. 938 (2009). That being said, the invocation of the self-representation right in Smith was woefully ambiguous. The district court even asked if the defendant sought to dispense with counsel, to which the defendant responded that “he did not have the education to represent himself and simply wanted new counsel.” Id. at 1279. But when the defendant indicated “he might have to be disruptive in trial in order to properly defend himself,” id. at 1280, the district court cautiously treated that statement as an assertion of the self-representation right. The defendant‘s comments in Smith, unlike Simpson‘s statements and written motion in our case, demonstrated a highly equivocal invocation of the right.
In United States v. Callwood, (cited by Maj. Op. at 14), the defendant informed the district court that he “would prefer for counsel not to represent defendant or at least the right to question the witness himself.” 66 F.3d 1110, 1114 (10th Cir. 1995) (emphasis added). We held that, at most, he was requesting a “hybrid” representation where he could “question the witnesses while continuing to retain counsel.” Id. The majority today correctly characterizes Callwood as a case where the defendant “never made any other statement regarding his desire for self-representation.” Id. That case is a far cry from the one before us today. Simpson made clear his desire to go forward pro se in a separate written motion and in his colloquy with the district court.
In United States v. Bennett, 539 F.2d 45, 51 (10th Cir. 1976), (cited by Maj. Op. at 15), the defendant repeatedly “vacillat[ed]” between requests for hybrid-representation (splitting trial tasks between the defendant himself and trial counsel) and full self-representation. At one point, the defendant stated: ”It is my statement now that I know I am not a qualified attorney to conduct a full trial, but there are certain aspects of the trial that I feel that I am competent to proceed with.” Id. at 50 (emphasis added). After the defendant changed his mind multiple times, the district court concluded: “we have fenced around long enough.” Id. Again, as in the previously cited cases, Bennett involved a degree of ambiguity that far exceeded the equivocation (if any) in Simpson‘s colloquy with the district court in this case.
Although I believe the majority‘s cited cases involved far more ambiguity than did Simpson‘s colloquy here, I agree with the majority about the purpose of the “clear and unequivocal” standard from these cases—it is to avoid putting a district court in a dilemma where “an equivocal demand creates a potential ground for reversal however the trial court rules.” (Maj. Op. at 10). If the court has to guess at what the defendant wants, then it may incorrectly determine that he either wanted to keep his lawyer (stripping him of a right to self-representation), or that he wanted to proceed pro se, thereby surrendering his constitutional right to counsel. So defendants can make ambiguous demands and then appeal their convictions no matter the court‘s ruling.
But that dilemma did not exist here. With this record, had the district court granted the self-representation motion and Simpson lost at trial, Simpson could not have successfully argued post hoc that he was unconstitutionally denied the assistance of counsel—after all he waived that right by submitting a clear and unequivocal request to represent himself. He might have had at least a colorable claim that the court abused its discretion in denying his separate motion for a continuance, but that would have been a separate matter. As described above, the fact remains that any ambiguity was created by the district court itself—either by misunderstanding Simpson‘s request, or by failing to treat separately his scheduling request (the continuance) from his motion to invoke a constitutional right (self-representation).
B. Purpose of delay
A motion for self-representation may be rejected if made for the purpose of delaying the proceedings. See United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir. 2006); United States v. Mackovich, 209 F.3d 1227, 1237-38 (10th Cir. 2000). The government argues, and the majority today concludes, that Simpson‘s request was a tactic for delay. I disagree.
At the outset, the district court never actually found that Simpson‘s motion was made for the purpose of delaying the trial. The majority acknowledges as much, but references several statements that it concludes amounted to the district court‘s “implicit” finding of intended delay. (Maj. Op. at 25). I am wary to sign on to that approach.
Rather than hang the decision on implicit findings of the district court, I would instead rely on what the court said explicitly. In considering Simpson‘s request for self-representation, the district court found that his earlier continuance request was “totally appropriate” and acknowledged that Simpson did not have “much control over that situation.”4 (R. Vol. III at 169). Yet the majority dismisses this explicit finding as “not dispositive.” (Maj. Op. at 29). In my view, this finding has meaning. It makes this case different from others like Mackovich, where the district court found the self-representation motion was “merely an effort to again delay the trial, and [was] an abuse of the judicial process,” 209 F.3d at 1237, and where the judge pointed to a long period of disruptive tactics by the defendant, id. Unlike in Mackovich, the district court here did not find that Simpson had demonstrated such a pattern of delay tactics.
Turning away from the district court‘s findings, and looking to the record itself, it appears that Simpson chose to represent himself not to manipulate the process or delay the trial, but because he was genuinely dissatisfied with his lawyer. Consider first the explanation that Simpson actually offered, both in his written motion and in the colloquy. He explained that his motion was based on his lawyer‘s failure to keep Simpson informed about case developments and the failure to file certain motions that Simpson believed were important to his defense. While a defendant‘s purported intentions are not dispositive of whether a motion is intended for delay, they are at least a starting point for analyzing the purpose of the motion.
But the government dismisses Simpson‘s explanation based on the timing of his request. The government argues that if Simpson decided to represent himself two weeks before trial, then why did he wait until the morning of trial to file the motion? The majority concludes that Simpson could have requested self-representation earlier, and his failure to do so suggests a purpose of delay. But I am not so sure.
Consider the sequence of events leading up to the district court‘s denial of the motion on the morning of trial, April 6, 2015. A week and a half before the trial date, Simpson asked his lawyer to file certain jurisdictional motions which Simpson had written. But the lawyer found them frivolous and refused to file them.5 Upon learning they were not filed, Simpson himself submitted them to the court on April 1. However, on April 2, the district court denied those motions because they were not filed by Simpson‘s lawyer.6 On April 3, a Friday, the parties held a pretrial conference at which Simpson learned that his motions were stricken. Over the weekend, on the eve of trial, realizing that his lawyer would not file his motions and that he could not file them himself so long as he had a lawyer, Simpson may have tossed up his hands and finally decided to act on his inclination to proceed pro se. That next Monday morning, April 6, 2015, he filed for self-representation.
With this sequence of events in mind, the timing of Simpson‘s self-representation request does not suggest a purpose of delaying trial—but rather a late realization that his lawyer was not representing his perceived best interests and that the court would not consider his jurisdictional motions unless he dispensed with counsel.7 Moreover, to confirm that his attempt to dispense with counsel was genuine, rather than a delay tactic, Simpson again sought to represent himself after the trial for sentencing proceedings. (Dist. Ct. Doc. 156, 158). In my view, that adds confirmatory support to the conclusion that Simpson had genuinely wanted to represent himself all along.
For the above reasons, I am not persuaded by the majority‘s and the government‘s arguments. More fundamentally, I am concerned that today‘s decision will water down a constitutional right which ought to remain potent—the right to dispense with counsel. Because I find, on this record, no ambiguity in Simpson‘s request, and no evidence that Simpson had a purpose of delay, I would reverse the convictions based on the district court‘s denial of Simpson‘s constitutional right to self-representation. Thus, on this issue, I respectfully dissent.
II. Pole-camera evidence
The majority also finds no reversible error in denying Simpson‘s motion to inspect the pole camera and hard drive. On this issue, I concur in the majority‘s outcome and rationale. I write separately on this issue only to add that, under
In Simpson‘s original motion to inspect, he offered one theory of how the surveillance footage would be material to his defense: access to the video would enable him to challenge the search warrant based on reckless omissions by the affiant. The district court denied that motion, and the majority correctly affirms that denial because Simpson failed to make a prima facie showing that the video would be material to his effort to challenge the search warrant.
On appeal, for the first time, Simpson offers a second theory for why the video would be material: it would enable him to impeach the government‘s star eyewitness at trial, Kenneth Tillman. I agree with the majority that Simpson has failed to establish a “reasonable probability” that this impeachment theory, if adopted by the district court, would have changed the outcome in the trial. (Maj. Op. at 34). Thus, at this stage of the proceedings, where we are reviewing his claim for plain error, Simpson‘s claim fails. But because we are remanding on some counts, there is a possibility of a new trial. If that occurs, the pole camera evidence may again become relevant and this time Simpson might timely ask to inspect that the pole camera and hard drive under the theory that it may help him impeach the government‘s star eyewitness at trial. Thus, because of that eventuality, I would go further than the majority opinion. I would hold that Simpson‘s impeachment theory is valid and satisfies his prima facie burden to show materiality under
Consider what the video evidence would allegedly show. The pole camera was installed across the street from Simpson‘s home on June 5, 2015, and would have captured footage of events occurring outside the residence after that date. Tillman, the government‘s star eyewitness, claimed at trial that Simpson exited his home on June 12, 2015, brandishing a firearm, (R. Vol. III at 374), and then Tillman entered the house and Simpson began bragging about his other guns, (Id. at 376-77). But Simpson alleges the video footage would prove Tillman was never at the house on the dates claimed, and so could not have observed those events. It would also show, according to Simpson, a lack of traffic associated with drug dealing. All of this would be helpful to Simpson‘s defense as impeachment evidence against Tillman—which would unquestionably be material in light of the fact that Tillman was the government‘s only eyewitness.8
With this, Simpson has met his prima facie burden. At least under
A contrary conclusion would be a dangerous precedent in federal courts. To permit the government to sit on allegedly unrecoverable evidence and prevent the defendant from determining whether the evidence is recoverable would allow the government to withhold potentially material evidence when the government alone can assess the usefulness of that evidence. See generally United States v. Budziak, 697 F.3d 1105, 1113 (9th Cir. 2012) (“While we have no reason to doubt the government‘s good faith in such matters [referring to
* * *
In sum, on the issue of self-representation, I conclude that the district court erred by denying Simpson‘s request. It was neither ambiguously invoked, nor motivated by a desire to delay. Thus, all of Simpson‘s convictions should be reversed. However, since the majority disagrees with me on that dispositive issue, I turn to the evidentiary issue of discovery of the pole-camera and hard drive. On that matter, I concur with the majority that reversal is not warranted based on Simpson‘s failure to satisfy plain-error review—but I have written separately to add that the government‘s refusal to allow inspection here was improper and, upon any new trial on the counts that are being remanded, the government should permit Simpson to examine the pole-camera and hard drive.