United States v. Jackson , 304 F. App'x 424 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0782n.06
Filed: December 23, 2008
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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DEWAYNE ANTHONY JACKSON, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: DAUGHTREY, GILMAN, and ALARCÓN,* Circuit Judges.
PER CURIAM. The defendant, Dewayne Jackson, appeals his convictions that
resulted from a 22-count indictment charging him under the Hobbs Act, 18 U.S.C. § 1951,
with committing a series of five armed robberies, conspiracy to violate the Hobbs Act, and
illegal possession of a firearm. He claims that the district court committed error under
Faretta v. California, 422 U.S. 806 (1975), by “ignoring [Jackson’s] unequivocal demand
to represent himself,” that the court permitted the prosecution to introduce evidence and
expert testimony in violation of Federal Rule of Criminal Procedure 16, and that the
government failed to prove that the firearm attributed to Jackson had been shipped in
interstate commerce. Because we find that Jackson’s comment concerning pro se
*
The Hon. Arthur L. Alarcón, Judge of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
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representation was essentially an expression of dissatisfaction with his then attorney and
not an “unequivocal demand” sufficient to require a Faretta hearing or to establish the right
of self-representation, we find no merit to this claim. Moreover, we conclude that the
district court did not abuse its discretion in the admission of the evidence at issue on
appeal and that there was sufficient proof that the firearm in question had moved in
interstate commerce. We therefore affirm the district court’s judgment in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
Dewayne Jackson was one of five co-defendants originally charged in a 22-count
indictment with conspiracy to violate the Hobbs Act, ten counts of armed robbery, and
multiple firearms violations. Jackson went to trial on a second superceding indictment and
was convicted of participating in the conspiracy and committing five armed robberies. He
was also found guilty on five counts of use of a firearm in the commission of an offense
and one count of being a felon in possession of a firearm. The specific details of the
offenses are not relevant to this appeal. What is relevant concerns the district court’s effort
to supply Jackson with representation and the court’s ruling on two defense objections to
evidence introduced at trial.
Jackson’s retained attorney, Gary Tyack, appeared on his behalf at a detention
hearing and filed pretrial motions to suppress items seized from a vehicle and during the
search of a residence, as well as pretrial identifications of Jackson made from a photo
array shown to some of the robbery victims. At arraignment on the first superceding
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indictment, Tyack asked to withdraw from the case and was replaced by Kerry Donahue,
who was appointed by the district court to represent the defendant. However, at the
subsequent arraignment on the second superceding indictment, Jackson indicated that he
was dissatisfied with his new counsel, claiming “a trust issue, a communication issue, and
. . . a lack of interest on [Donahue’s] part” in Jackson’s case. The transcript of the
proceeding indicates a high level of frustration on the defendant’s part, apparently
stemming from Donahue’s failure to visit him in the lock-up facility where he was detained,
give him the latest version of the indictment, supply copies of the police report in addition
to the “13 pages of discovery” that Jackson already had in his possession, and conduct an
investigation to determine “[w]ho is writing these charges? . . . Is there any witnesses to it?
Can I question somebody?” Responding to the district judge’s attempt to put his questions
in context, Jackson said, “I don’t want [Donahue] to represent me. I want to represent
myself.”
At this point, the district judge informed Jackson that he would address that issue
after holding a hearing, presumably a Faretta hearing to determine whether the defendant
was capable of defending himself and willing to waive his right to representation. That
hearing was never held, however, undoubtedly because following the arraignment, the
district court entered an order permitting Donahue to withdraw from the case and further
providing:
At the arraignment, defendant made a request for the appointment of new
counsel. When that request was not immediately granted, the defendant
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indicated that if new counsel were not appointed, he would then seek to
represent himself. The record reflects that [Kerry Donahue] has been
competently representing the defendant, and [although] the court has no
reason to believe that his performance in this case has been inadequate in
any way . . . [i]n the interests of the effective administration of justice, the
defendant’s request for new counsel is hereby granted.
Within five days after Jackson’s arraignment on the second superceding indictment, the
court appointed Charles McKinney to represent the defendant. If Jackson had any
difficulty with or opposition to his new counsel, there is nothing in the record to indicate it,
either prior to the trial a little over three months later, during the five-day trial, or in post-trial
proceedings.
The defendant did object on the first day of trial to the government’s failure to
produce in timely fashion certain cellular telephone call records, as well as a copy of a CD
containing recordings of telephone calls that Jackson had made from a pay phone in the
county jail where he was being held, claiming a discovery violation under Rule 16. The
government explained that despite the timely issuance of a subpoena to Cingular, copies
of the records were not received by the government until a few days before trial and were
turned over to the defense the same day that they were received. The CD containing the
defendant’s recorded conversations on the jail telephone was made as part of an
investigation concerning a plot hatched by Jackson to escape from custody while being
transferred to or from the lock-up facility. While going over the lengthy recorded
conversations, FBI agents discovered that Jackson had made self-incriminating statements
concerning the charges in this case and turned the CD over to government prosecutors.
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It was not supplied to the defense for security reasons, but the prosecutor assured the
court that there had been an automatic warning at the beginning of every telephone call
made from the jail that the calls were being recorded. The prosecutor also informed the
court that Rule 16 was not implicated because he planned to use the recorded
conversations only as necessary for rebuttal and not as part of the government’s case-in-
chief. As it turned out, the recorded conversations were never played at trial or admitted
into evidence; instead, the government used them to refresh Amy Crevison’s memory and
to impeach her on cross-examination. Moreover, the prosecutor indicated that of the
voluminous cellular records, the only two calls that would be introduced were made among
three of the co-defendants and, therefore, it did not appear that they would be prejudicial
to defendant Jackson, if in fact they were introduced. Indeed, the record on appeal fails
to show that the calls were introduced for any purpose during the trial.
The other evidentiary matter now raised by the defendant concerns the testimony
of ATF agent David Taylor that the Smith & Wesson .357 revolver discovered in Jackson’s
possession was manufactured in Springfield, Massachusetts, and, therefore, that it had
traveled in interstate commerce. When the prosecutor inquired about the agent’s training
and expertise as a firearms examiner, the defendant objected to the witness being called
to testify as an expert witness on firearms, because the government had not given the
defense prior notice that the witness would be called. In response, the prosecutor
explained that Agent Taylor was familiar with .357 revolvers, had inspected the weapon in
question earlier that day, had located the stamping on it that indicated its origin, and would
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be testifying based on personal knowledge, rather than offering an expert opinion. The
district court ruled that the testimony was admissible.
At the conclusion of the trial, Jackson was convicted on all 12 counts of the
indictment specifically returned against him and was given an effective sentence of 120
years.
DISCUSSION
The two issues raised on appeal that challenge evidentiary rulings by the district
court do not require detailed discussion. The district court’s decisions are, of course,
subject to review only for an abuse of discretion. See United States v. Tocco, 200 F.3d
401, 414 (6th Cir. 2000). As noted above, the record fails to show that the cellular records
were ever introduced against defendant Jackson at trial. Moreover, only one of the
recorded conversations was used by the government – to refresh the memory of Amy
Crevison, the person to whom Jackson made the call – and it was played while the jury
was out of the courtroom and the content disclosed only for use as impeachment.
Furthermore, Jackson’s attorney was given an opportunity to listen to the recordings, even
though his motion for a continuance was not granted. We conclude that there was no
abuse of discretion in connection with the rulings on any of the related Rule 16 discovery
motions.
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As for the testimony of Agent Taylor, we likewise find no abuse of discretion. He
testified only on the basis of personal knowledge, not his opinion – expert or otherwise –
and thus the objection to the lack of prior notice that he would be called as an expert
witness is without merit. The defendant nevertheless argues on appeal that it was error
to permit him to testify on the basis of personal knowledge that the weapon had moved in
interstate commerce based on its manufacture in Springfield, Massachusetts, because “he
certainly was not present when the gun was manufactured.” We consider this argument
frivolous, given the fact that the revolver was stamped with the location of its origin,
Springfield, Massachusetts, and there was no evidence to the contrary.
The remaining question on appeal concerns the defendant’s insistence that he was
deprived of his right, derived from the Sixth Amendment, to represent himself at trial,
having informed the district judge at arraignment, “I am my own counsel.” Rather than
engage in a Faretta inquiry at that time, with several other co-defendants also awaiting
arraignment and the district judge’s scheduling order still to be announced, the judge
indicated that there would be a hearing at a later date to determine whether Jackson could
conduct his own defense. The district court apparently divined, as have we, that the
defendant was motivated less by a desire to engage in self-representation and more by
extreme dissatisfaction with Kerry Donahue personally – saying at one point, “I don’t want
to go to court with him” – and that, if asked, his actual preference would probably have
been to have new counsel appointed, an action that the district judge took almost
immediately.
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Perhaps, in light of Jackson’s statements to the court proposing self-representation,
it would have been preferable to hold a full-blown hearing, which was apparently the district
court’s initial intent. But, as we have held, “Faretta procedures are only required when a
defendant has clearly and unequivocally asserted his right to proceed pro se.” United
States v. Cromer, 389 F.3d 662, 682 (6th Cir. 2004). Here, Jackson’s statements may
have been “clear” but, when viewed in context, they were not altogether “unequivocal.”
Relevant to Jackson’s situation, we have also observed: “It is hornbook law that ‘[w]hen an
indigent defendant makes a timely and good faith motion requesting that appointed
counsel be discharged and new counsel appointed, the trial court clearly has a
responsibility to determine the reasons for defendant’s dissatisfaction with his current
counsel’.” United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990) (citation omitted). In
this case, even though a Faretta hearing never occurred, the district court did, in fact,
inquire into the defendant’s reasons for wishing to discharge his then attorney and then
replaced Donahue at virtually the first opportunity. In response to the district judge’s
action, Jackson made no further protestation, nor did he give any indication that he wished
to proceed pro se – not at the suppression hearing that followed arraignment nor at trial.
It is difficult, therefore, to conclude that Jackson “clearly and unequivocally asserted his
right to proceed pro se.”
Based on the facts in this record, we conclude that the post-arraignment
acquiescence of the defendant in representation by his newly appointed attorney
amounted to a waiver by conduct of the right to self-representation. It would certainly be
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unreasonable now to hold that the district court abused its discretion in failing to hold a sua
sponte Faretta hearing once Donahue had been replaced by new counsel and there was
no further objection from Jackson. Moreover, the factual circumstances distinguish this
case both from that of United States v. Bowker, 372 F.3d 365 (6th Cir.), vac’d on other
grounds, 543 U.S. 1182 (2004), relied upon by the defendant, and from our recent opinion
in Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008).
In the former case, defendant Bowker – then represented by counsel – sent the
district judge a hand-written motion “for release of appointed attorney.” Bowker, 372 F.3d
at 385. In that motion, Bowker stated: “Now Comes Defendant, being first advised of his
rights to an attorney, and does now knowingly, willingly, and intelligently waive his rights,
to court-appointed counsel.” Id. at 385-86. The district court apparently misconstrued the
request for self-representation and entered an order denying “Defendant’s pro se motion
for new counsel.” Id. at 386. Apparently, Bowker later had what the opinion describes as
“a change of heart” and sent the court another written request, this time asking that his
appointed lawyer be permitted to withdraw from the case “and that a new lawyer be
appointed to represent” him. Id. The district court did, in fact, appoint new counsel for
Bowker, who nevertheless appealed his conviction on the basis of the district court’s
purported denial of his right to self-representation. Affirming the conviction, we
emphasized the need to make the appropriate inquiries when a defendant “knowingly and
intelligently” waives his right to counsel and makes “a clear and unequivocal assertion of
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the right to self-representation.” Id. But, we ultimately held that the district court’s error in
failing to do so in Bowker’s case was rendered harmless by his later request for the
appointment of new counsel. Id. If, in Jackson’s case, there was a similar
misinterpretation of the defendant’s original request to proceed pro se, there was also a
similar “change of heart” and an implied waiver of the right of self-representation, as
demonstrated by Jackson’s acceptance of newly appointed counsel.
Moore is a habeas case that was filed in federal court, pursuant to 28 U.S.C. §
2254, following the petitioner’s conviction in state court. The facts in Moore are easily
distinguished from those in this case. In the state trial court, defendant Moore asserted his
desire to represent himself forcefully and continuously, both in open court and by written
motion. He was not only deprived of anything resembling a Faretta inquiry, but was
affirmatively discouraged in the assertion of his right to self-representation by the trial
judge, who responded to his request by saying: “[Y]ou can go pro se and be your own
attorney, which is of course a very dubious action for anybody to take, and I personally, in
28 years as an officer of the court, have never seen anybody successful in that regard.”
Moore, 531 F.3d at 396. Moore’s request to act as his own lawyer was denied and, unlike
Bowker and Jackson, he did not manifest, in writing or by his conduct, any acquiescence
in proceeding to trial while still represented by his original, repudiated counsel. We held
that Moore had been wrongfully denied his right to self-representation, or at the very least
a Faretta hearing, and affirmed the district court’s grant of a conditional writ of habeas
corpus. Because the context of the request in Moore differs so substantially from the
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circumstances in the case before us, we decline to apply the same analysis or to reach the
same result here.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court.1
1
In reaching this determination, we have reviewed the issues raised by the defendant in his
pro se brief filed in this court and find that none requires extended discussion or merits relief. The
claim that the Hobbs Act counts in the indictment were void and that the district court therefore had
no jurisdiction to try the defendant is based on nothing more than a provision allegedly contained
in the 1997 U.S Attorney’s Manual suggesting, as a policy matter, that robbery offenses under the
Act should be prosecuted only in “instances involving organized crime, gang activity, or wide-
ranging schemes.” The conspiracy in this case, involving five individuals plotting to commit and
variously involved in committing ten armed robberies over a period of some three months, could
certainly qualify as a “wide-ranging scheme.” But, in any event, it should be clear to the defendant
that a prosecutor’s policy manual is not law nor even interpretation of law. The claim is, therefore,
frivolous. In a second claim, the defendant argues that certain testimony should not have been
admitted because it was “ex parte” and, therefore, in violation of Crawford v. Washington, 541 U.S.
36 (2004). It is not evident from the defendant’s discussion of this claim what is meant by the term
“ex parte testimony.” It is clear that introduction of the cellular telephone records cannot constitute
a Crawford violation, because they are not “testimonial” and, most importantly, did not implicate
the defendant in the offenses for which he was convicted. The claim that the government violated
Brady v. Maryland, 373 U.S. 83 (1963), through non-disclosure of exculpatory discovery materials
cannot be established based on the record now before us and, for the same reason, we would be
unable to review the defendant’s claim that the prosecutor violated the Jencks Act, 18 U.S.C. § 3500.
Finally, the defendant’s claim that identification evidence should have been suppressed under United
States v. Wade, 388 U.S. 218 (1967), is without merit because he was identified in a photo array and
not in an corporeal line-up.
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