United States v. UtreraUnited States v. Utrera
Applying a de novo standard of review, as we must, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc), we conclude that the district court‘s well-reasoned opinion supports the denial of qualified immunity and that the issuance of a detailed written opinion from this Court would be repetitious. Accordingly, the judgment rendered by the Honorable Kathleen McDonald O‘Malley is affirmed on the basis of the reasoning set forth in the September 28, 2006 opinion and order, 2006 WL 2812173.
OPINION
R. GUY COLE, JR., Circuit Judge.
Defendant-Appellant Joel Utrera appeals his jury conviction of interstate domestic violence under
I. BACKGROUND
Utrera and Diosmary Aguilar lived together for three years and have one child in common. They had a violent relationship, and when Aguilar left Utrera for another man in 2003, she obtained a domestic violence protection order against Utrera. Utrera, however, subsequently violated the order, stabbed her three times, and served fourteen months in prison for
In the early morning hours of April 23, 2005, Utrera drove from his mother‘s home in Louisville to Aguilar‘s home in Jeffersonville. Aguilar was at home with Figueroa, Figueroa‘s niece, and Aguilar‘s and Utrera‘s six-year-old son. Utrera broke though the living room window while holding a long metal object in his hand. Utrera‘s head and upper body protruded through the window, but Figueroa stood by the window to keep Utrera from entering the premises. Aguilar called the police several times beginning at 1:19 a.m., but had difficulty cоmmunicating because she does not speak English. By the time the police arrived around 1:25 a.m., Utrera was gone. The police advised Aguilar to file a complaint, and around 4:00 a.m., the police arrested Utrera at his mother‘s home in Kentucky.
On September 6, 2005 Utrera was charged by a three-count indictment with (1) transmitting a threat in interstate commerce, (2) crossing state lines with the intent to commit a crime of domestic violence, and (3) crossing state lines with the intent to violate a protective order. Prior to trial, Utrerа moved to dismiss his attorney from the Federal Public Defenders’ office because he claimed that she did not provide his family with the correct location of a court hearing. His attorney filed a motion on his behalf requesting appointment of another attorney, but the magistrate judge found no misconduct and advised Utrera to cooperate with appointed counsel. The day before the trial was scheduled to start, Utrera again moved to dismiss his attorney. The district judge agreed with the magistrate judge‘s decision аnd allowed Utrera to choose between representing himself, with or without a lawyer, or keeping the same counsel. Utrera chose to represent himself. Utrera changed his mind three hours later, after sitting through a pretrial hearing in which several evidentiary matters were discussed, and he decided to retain his prior counsel for trial. The judge then granted Utrera‘s motion for continuance and scheduled another pretrial hearing to review the same matters addressed during the hearing in which Utrera had proceеded pro se. The day of trial, the district court granted Utrera‘s motion to sever the counts, and the parties proceeded to trial on Count 2 alone, the interstate domestic violence charge under
II. ANALYSIS
On appeal, Utrera makes five arguments: (1) he was denied counsel at a critical stage of the proceedings; (2) the Western District of Kentucky was not a proper venue; (3) the district court erred in admitting evidence pursuant to
A. Right to Counsel
Utrera argues that he was denied counsel at a critical stage in the proceedings—the pretrial conference during which he proceeded pro se—because, he claims, when he elected to proceed pro se he had not knowingly and intelligently waived his right to counsel. “The Sixth Amendment secures to a defendant who faces incarceration the right to counsel at all ‘critical stages’ of the criminal process.” King v. Bobby, 433 F.3d 483, 490 (6th Cir.2006) (citing United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). “[T]he period between appointment of counsel and the start of trial is indeed а ‘critical stage’ for Sixth Amendment purposes.” Hunt v. Mitchell, 261 F.3d 575, 582-83 (6th Cir.2001) (quoting Mitchell v. Mason, 257 F.3d 554, 566 (6th Cir.2001)). The Sixth Amendment also guarantees defendants the right to represent themselves at trial. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right to counsel and the right to self-representation are “two faces of the same coin, in that the waiver of one right constitutes a correlative assertion of the other.” United States v. Conder, 423 F.2d 904, 908 (6th Cir.1970) (internal citation omitted). When a defendant asserts his right to self-representation, therefore, he necessarily waives his right to counsel. Such decision, however, must be voluntary and knowing. Faretta, 422 U.S. at 835, 95 S.Ct. 2525.
Utrera contends that hе was denied his right to counsel at a critical stage of the criminal process because he was “forced” to represent himself during a pre-
At the hearing, the district court inquired into the reason for Utrera‘s dissatisfaction with counsel. Utrera offered the same reasons the he had presented to the magistrate judge. The district judge explained that the court had already reviewed those reasons and found them to be unpersuasive because there had merely been a misunderstanding about the location of the hearing.1 The judge explained that although Utrera‘s counsel was an excellent lawyer, if Utrera had valid reasons why the lawyer should be dismissed, the court would dismiss her and appoint a new one. The judge, however, concluded that Utrera had not given “good and valid reasons” why the court should substitute counsel. The district court then gave Utrera a choice: “Your choice is that you can
Having concluded that Utrera waived his right to an attorney for a three-hour period, we must now determine whether his waiver was knowing and voluntary. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. To insure a knowing and voluntary waiver, a trial court must inform a defendant of thе “dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.‘” Id. (quoting Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). This Circuit directs federal district courts to conduct the inquiry set forth in 1 Bench Book for United States District Judges 1.02-2 (3d ed.1986), “or one covering the same substantive points,” when an accused seeks to waive representation by counsel. United States v. McDowell, 814 F.2d 245, 250 (6th Cir.1987). Substantial compliance and not literal adherence to those guidelines is required. United States v. Miller, 910 F.2d 1321, 1324 (6th Cir.1990).
In the instant case, the district court rigorously explained thе pitfalls of self-representation. The court repeatedly attempted to dissuade Utrera from proceeding pro se, pointed out that Utrera lacked appropriate legal training, and explained that by choosing to represent himself, Utrera would likely increase his risk of conviction. Though not following the model inquiry word for word, the court spoke in plain and clear terms so that Utrera, communicating through an interpreter, would understand the import of his decision. Thus, we find that the district court substantially complied with the McDowell inquiry, and that Utrera knowingly and voluntarily waived his right to counsel.2
Utrera contends that the District Court for the Western District of Kentucky was not the proper venue for prosecution of the offense because, he argues, the Government offered no proof that he committed any “relevant act” within the district court‘s jurisdiction. Typically, this Court reviews de novo a district court‘s interpretation of venue statutes, and reviews for abuse of discretion the district court‘s decision whether to dismiss for lack of venuе. United States v. Fonseca, 193 Fed.Appx. 483, 492 (6th Cir.2006) (per curiam) (citing United States v. Brika, 416 F.3d 514, 527 (6th Cir.2005)). Because Utrera did not raise his venue objection in the district court, however, this Court reviews only for plain error, “requiring an error that is clear or obvious, affecting a defendant‘s substantial rights, and seriously affecting the fairness, integrity or public reputation of judicial proceedings.” United States v. Lopez-Medina, 461 F.3d 724, 746 (6th Cir.2006). Utrera fails to show error, plain or otherwise.
A defendant is guaranteed a trial in the state and district where the offense was committed.
Utrera contends that venue is improper in Kentucky and that the Southern District of Indiana—where the break-in occurred—is the only proper venue. This argument is without merit. The statute under which Utrera was charged states that “[a] person who travels in interstate . . . commerce . . . with the intent to kill, injure, harass, or intimidate a spouse or intimate partner, and who, in the course of or as a result of such travel, commits or attempts tо commit a crime of violence against that spouse or intimate partner” commits interstate domestic violence.
Utrera contends that the district court erred when it permitted evidence under
Federal Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person or in order tо show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
Utrera is correct that “[i]n determining whether to admit evidence under Rule 404(b) for ‘other acts,’ the court must balance the probative value of the evidence with the danger of undue prejudice in the manner required by Rule 403.” United States v. Wells, 211 F.3d 988, 999 n.6 (6th Cir.2000);
The record reflects that the district court gave careful and thorough consideration to the relevant facts and law in reaching its conclusion that the challenged evidence was properly admissible under Rules 404(b) and 403. The district court ruled that evidence of the stabbing, jail time, and phone threat was admissible to show Utrera‘s motive and intent on the night of the attempted assault and to provide necessary context of the parties’ relationship. Aguilar was, therefore, permitted to testify as to the time line of her relationship with Utrera and as to the prior phone call and stabbing in order to establish that Utrera had traveled from Kentucky to Indiana with the requisite intent of harming her. Specifically, Aguilar testified that on March 20, 2005, Utrera called her and said that he was not afraid of being in jail аnd that he wanted to “finish what he started.” In order to explain that phrase to the jury, and to prove the requisite intent, Aguilar testified that Utrera stabbed her three times in 2003, went to jail, and got out several months before the attempted assault. Aguilar believed that Utrera came to her house the night of the break-in to “finish what he
D. Sufficiency of the Evidence
Utrera next claims that the Government‘s evidence was insufficient to support his conviction. In reviewing a sufficiency-of-the-evidence claim, we consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Copeland, 321 F.3d 582, 600 (6th Cir.2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “We are bound to make all reasonable inferences and credibility choices in support of the jury‘s verdict.” United States v. Hughes, 895 F.2d 1135, 1140 (6th Cir. 1990).
In order to prove interstate domestic violence, the Governmеnt must show that the defendant: (1) traveled in interstate commerce (2) with the intent to kill, injure, harass, or intimidate (3) a spouse or intimate partner (4) and that, in the course of or as a result of such travel (5) the defendant committed or attempted to commit a crime of violence against that spouse or intimate partner.
The Government introduced the following evidence to show that Utrera had the requisite intent when he crossed into Indiana and that he attempted to commit a crime of violence against Aguilar: (1) Utrera was upset when Aguilar left him to get back together with Figueroa; (2) after Utrera got out of jail, he told Aguilar that he would not allow their child to have a stepfather and that he did not want Aguilar to have any other relationships; (3) one month before the break-in, Utrera called Aguilar and threatened to “finish what he started“; (4) Aguilar believed that Utrera meant he wanted to kill her because he had previously stabbed her three times in the stomach; (5) the night of the break-in, Utrera told his brother that he was mad at Aguilar and “how she behaved“; (6) before breaking the window, Utrera broke the sill on the window as if he were climbing and trying to get into Aguilar‘s room; (7) during the break-in, while Aguilar was on the phone with 911, Utrera called her a “bitch“; and (8) once Utrera broke the window, he tried to climb inside and had a large screwdriver or knife in his hand.
This evidence, viewed in a light most favorable to the Government, “allow[s] a rational trier of fact to find . . . beyond a reasonable doubt” that Utrera possessed the requisite intent at the time he drove from Kentucky to Indiana and that Utrera attempted to commit a crime of violence against Aguilar. See United States v. Al-Zubaidy, 283 F.3d 804, 809 (6th Cir.2002).
Utrera‘s reliance on the theory that he may have gone to the house in order to harm Figueroa (a person who does not meet the victim standard under the domestic violence statute) does not assist him on appeal. Although a jury could have inferred such a situation from Aguilar‘s testimony that Figueroa also beat her and that Utrera did not like him, the jury was also free to reject such an inference, as it obviously did. When deciding whether any rational trier of fact could have found the essential elements of the crime, this Court does not “weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury.” United States v. Chavis, 296 F.3d 450, 455 (6th Cir.2002) (quoting United States v. Ferguson, 23 F.3d 135, 140 (6th Cir.1994)). Becausе a rational trier of fact could have found that Utrera traveled in interstate commerce with the intent to harm Aguilar, Utrera‘s insufficient-evidence argument fails.
E. Sentence
Utrera challenges the procedural reasonableness of his sentence, contending that the district court failed to consider the factors set forth in
“A sentence may be procedurally unreasonable if ‘the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed in
Here, the district court calculated the applicable Guidelines range, fifty-one to sixty-three months, noting its advisory nature and that the court considered the range to be a reasonable one. See
III. CONCLUSION
For these reasons, we AFFIRM Utrera‘s conviction and sentence.