United States v. Belin , 868 F.3d 43 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2192
UNITED STATES OF AMERICA,
Appellee,
v.
KING BELIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
Paul J. Garrity for appellant.
Kunal Pasricha, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on brief,
for appellee.
August 22, 2017
KAYATTA, Circuit Judge. King Belin was convicted at
trial of being a felon in possession of a firearm and sentenced to
seventy-one months' imprisonment. He raises two issues on appeal:
whether there was reasonable suspicion for the stop-and-frisk that
resulted in the discovery of the firearm, and whether the district
court erred by allowing him to direct his attorney not to pursue
certain factual lines of defense at trial. We conclude that the
stop-and-frisk was lawful and that the district court did not err
in the way it resolved Belin's dispute with his attorney.
I.
A.
As is customary when reviewing the denial of a motion to
suppress, we recount the facts as found by the district court,
consistent with record support. See United States v. Romain, 393
F.3d 63, 66 (1st Cir. 2004).
At 6:45 P.M. on September 17, 2012, the Boston Police
Department radio broadcast a call that a fight involving either
kids or girls had broken out at the intersection of Norfolk Street
and Fessenden Street near Norfolk Park in Mattapan, a Boston
neighborhood. Norfolk Park had been the site of multiple recent
firearms arrests and incidents. Two Boston Police Department
officers, Officer Bissonnette and Officer Finn, responded to the
call. They drove to the location and saw a group of five men
walking down the sidewalk of Norfolk Street toward Fessenden Street
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and Norfolk Park. They pulled over in front of the group of men
where the sidewalk dips to allow pedestrians to cross the street,
so that their car blocked the crosswalk. As the officers got out
of the car, one of the men, Belin, peeled off from the others and
hurried away from the officers, crossing the street toward Norfolk
Park.
Bissonnette recognized Belin. He had arrested Belin in
2009 about half a mile away from Norfolk Park for having a firearm
in his car without a license. He also knew that Belin was listed
in a police database as a member of a local gang, the Norfolk
Street Bulls. Belin was wearing a heavy black hooded sweatshirt
that was "not tight-fitting." The temperature that evening hovered
just below seventy degrees Fahrenheit. One person in the park at
the time was wearing a "light parka"; another was wearing a t-
shirt. Bissonnette also wore a t-shirt.
Bissonnette followed Belin and said, "Yo, King, what's
going on?" Belin looked at him, half-smiled, and continued
walking. Bissonnette caught up to Belin, who stopped and turned
around.1 Bissonnette asked if Belin had anything on him. Belin
became unusually nervous, his demeanor and facial expression
1
The district court did not find this fact, but the sequence
of events does not make sense without it. We include it here
because this part of Bissonnette's testimony was undisputed and
unchallenged, and the district court generally credited his
testimony.
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changed, he took a deep breath, and then his breathing became quick
and shallow. He looked around "as if searching for a means of
escape."
Bissonnette grabbed one of Belin's arms with one hand
and reached toward Belin's waist with the other to frisk his
waistband. Both of Belin's hands moved toward his waist, and
Bissonnette grabbed them. A struggle ensued, other officers came
to help, and they took Belin to the ground. After Belin was
handcuffed, the officers searched him and discovered a gun,
marijuana, and five rounds of ammunition. Belin moved to suppress
the results of the search, arguing that the stop-and-frisk occurred
without reasonable suspicion that he was armed and dangerous. The
district court denied the motion, and Belin appeals that denial.
B.
Although we have summarized the facts as found by the
district court and as supported by the record viewed "in the light
most favorable to the district court's ruling," United States v.
Camacho, 661 F.3d 718, 723 (1st Cir. 2011) (quoting United States
v. Soares, 521 F.3d 117, 118 (1st Cir. 2008)), "we review de novo
the district court's conclusions of law, including its application
of the law to the facts, its probable cause and reasonable
suspicion determinations, and the district court's ultimate legal
decision to grant or deny the motion to suppress," id. at 724
(emphasis omitted). We also review de novo the court's legal
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conclusion about at what point the facts amounted to a seizure.
See United States v. Taylor, 511 F.3d 87, 91 (1st Cir. 2007).
The parties disagree on four points, each of which we
must resolve to decide this appeal: (1) when the stop occurred;
(2) whether there was reasonable suspicion for the stop; (3) when
the frisk occurred; and (4) whether there was reasonable suspicion
for the frisk. For the following reasons, we agree with the
district court that the stop occurred when Bissonnette put his
hand on Belin's arm, that the stop and the frisk occurred
simultaneously, and that there was reasonable suspicion sufficient
to justify the frisk (and thus, in this case, the stop as well).
1.
This case involves a seizure short of a formal arrest
known as a "Terry stop," after Terry v. Ohio, 392 U.S. 1 (1968).
See id. at 16 (holding that a Fourth Amendment seizure occurs
"whenever a police officer accosts an individual and restrains his
freedom to walk away"). "The police need not have taken physical
custody of a person in order to be deemed to have effected a Terry
stop for which at least reasonable suspicion is required." United
States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016). "Such a stop
instead may occur merely upon law enforcement making what the
Supreme Court has termed a 'show of authority.'" Id. (quoting
United States v. Mendenhall, 446 U.S. 544, 553–54 (1980) (opinion
of Stewart, J.)). "Such a 'show of authority' occurs, however,
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only when 'in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not
free to leave.'" Id. (quoting Mendenhall, 446 U.S. at 554 (opinion
of Stewart, J.)).
Examples of circumstances that might indicate
a seizure, even where the person did not
attempt to leave, would be the threatening
presence of several officers, the display of
a weapon by an officer, some physical touching
of the person of the citizen, or the use of
language or tone of voice indicating that
compliance with the officer's request might be
compelled.
Mendenhall, 446 U.S. at 554 (opinion of Stewart, J.)2; see also
Fields, 823 F.3d at 25 (relying on these examples); United States
v. Ford, 548 F.3d 1, 5 (1st Cir. 2008) (adopting and supplementing
the list in Mendenhall). "[W]ith respect to a seizure based upon
an officer's show of authority, no seizure occurs until the suspect
has submitted to that authority." United States v. Sealey, 30
F.3d 7, 9 (1st Cir. 1994) (citing California v. Hodari D., 499
U.S. 621, 626 (1991)).
We observe, initially, that Bissonnette testified that
he resolved to "search" Belin immediately upon recognizing him.
The applicable test, however, focuses not on the officer's intent,
but rather on the objective manifestations of authority as
2This language appears in a section of Mendenhall in which
Justice Stewart was writing only for himself and Justice Rehnquist.
See 446 U.S. at 546 n.**, 551–57.
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discerned by a reasonable person in the position of the defendant.3
See Fields, 823 F.3d at 25. Bissonnette's intent thus does not
control, although it certainly could have been considered by the
district court in resolving any factual disputes concerning
exactly what Bissonnette did and how he came across to Belin.
Properly focusing on what the district court found that
Belin saw, heard, and felt, Belin argues that the show of authority
manifesting a Terry stop occurred when Bissonnette approached him,
which caused him to stop and answer Bissonnette's questions. We
have little doubt that many reasonable people would feel it
appropriate to stop and answer an officer's questions in such a
situation. The police, however, are entitled to approach people
and ask questions without always being deemed to have ordered a
stop. See Mendenhall, 446 U.S. at 553 (opinion of Stewart, J.)
("Police officers enjoy 'the liberty (again, possessed by every
citizen) to address questions to other persons,' although
'ordinarily the person addressed has an equal right to ignore his
interrogator and walk away.'" (quoting Terry, 392 U.S. at 31, 32–
33 (Harlan, J., concurring))). "The 'free to leave' test thus
focuses on whether the conduct of law enforcement 'objectively
communicate[s] that [law enforcement] is exercising [its] official
authority to restrain the individual's liberty of movement.'"
3
Belin makes no argument that his race played a role in
Bissonnette's decision to conduct the stop-and-frisk.
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Fields, 823 F.3d at 25 (alterations in original) (emphasis omitted)
(quoting United States v. Cardoza, 129 F.3d 6, 16 (1st Cir. 1997));
see also Hodari D., 499 U.S. at 628 ("Mendenhall establishes that
the test for existence of a 'show of authority' is an objective
one: not whether the citizen perceived that he was being ordered
to restrict his movement, but whether the officer's words and
actions would have conveyed that to a reasonable person.").
This court has concluded that no seizure occurred in
situations with greater shows of authority than were manifest here
before Bissonnette touched Belin. See, e.g., Fields, 823 F.3d at
27 (holding no seizure occurred where, after asking defendant
investigatory questions, the police officer called for backup and
four other police officers arrived); United States v. Smith, 423
F.3d 25, 30 (1st Cir. 2005) (holding no seizure occurred where
police officers approached and stood on either side of defendant,
who was sitting on a wall, as they questioned him). Based on this
controlling precedent and the district court's factual findings
concerning the events in question, we cannot conclude that
Bissonnette had objectively communicated the use of his official
authority to restrain Belin until he grabbed Belin's arm. See
United States v. Zapata, 18 F.3d 971, 977 (1st Cir. 1994) (stating
that seizure occurred once officer touched the defendant's arm).
Prior to that point, he had acted on his own, he had not touched
his weapon, he had not touched Belin, and he had not given any
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orders or made any threats. Cf. Mendenhall, 446 U.S. at 554(opinion of Stewart, J.). Moreover, the district court did not
find that Bissonnette chased after Belin, which might have
contributed to a show of authority. Cf. Hodari D., 499 U.S. at
629 (assuming that chasing after a suspect on foot is a show of
authority, but finding no seizure because defendant did not yield
to that show of authority).
2.
We consider next when the frisk occurred. The district
court noted that the stop-and-frisk "seem to be collapsed into one
moment, or certainly they occurred closely, one after another."
Accordingly, its conclusion that Bissonnette had reasonable
suspicion for the frisk rests entirely on events up to the point
when Bissonnette grabbed Belin's arm. On appeal, Belin's argument
that reasonable suspicion was lacking is based entirely on the
facts up to that point as well. The government, by contrast,
argues that the frisk did not commence until after Bissonnette's
hand touched Belin's waist area, which did not occur until after
Belin had already made several incriminating movements.
Specifically, the government contends that although
Bissonnette simultaneously reached toward Belin's waist and
grabbed Belin's arm, Belin prevented Bissonnette from actually
touching his waist. Therefore, in the government's view, the frisk
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of the waist did not occur until after Belin had been tackled to
the ground and had repeatedly reached toward his waistband.
We do not accept the government's argument. The district
court did not make any detailed findings about the location of
Bissonnette's and Belin's hands because the government did not
make this argument in its memorandum below. At most, the
government alluded to the argument at the suppression hearing but
did not actually assert that the frisk occurred only after the
police had tackled Belin to the ground. Although we may affirm on
any ground apparent from the record, see United States v. Arnott,
758 F.3d 40, 43 (1st Cir. 2014), the lack of factual findings on
the exact temporal sequence of arm movements by Bissonnette and
Belin means that this potential ground for affirmance is not
apparent. We will not consider it. Rather, we presume (as Belin
urges) that the district court correctly found that the frisk,
like the stop, commenced when Bissonnette grabbed Belin's arm.
3.
We turn next to determining whether there was reasonable
suspicion for the stop-and-frisk. In Terry, the Court held that
where a police officer observes unusual
conduct which leads him reasonably to conclude
in light of his experience that criminal
activity may be afoot and that the persons
with whom he is dealing may be armed and
presently dangerous, where in the course of
investigating this behavior he identifies
himself as a policeman and makes reasonable
inquiries, and where nothing in the initial
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stages of the encounter serves to dispel his
reasonable fear for his own or others' safety,
he is entitled for the protection of himself
and others in the area to conduct a carefully
limited search of the outer clothing of such
persons in an attempt to discover weapons
which might be used to assault him.
Terry, 392 U.S. at 30.
In general, this court assesses the constitutionality of
a stop and a frisk separately. "It is insufficient that the stop
itself is valid; there must be a separate analysis of whether the
standard for pat-frisks has been met." United States v. Cardona-
Vicente, 817 F.3d 823, 827 (1st Cir. 2016) (quoting United States
v. McKoy, 428 F.3d 38, 39 (1st Cir. 2005)). "[I]n determining
whether a pat-down search is an appropriate step following a valid
Terry stop, the key is whether, under the circumstances, 'the
officer is justified in believing that the person is armed and
dangerous to the officer or others.'" Id. (alteration in original)
(quoting United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004));
see also Adams v. Williams, 407 U.S. 143, 146 (1972) ("The purpose
of [a frisk] is not to discover evidence of crime, but to allow
the officer to pursue his investigation without fear of
violence . . . ."); 4 LaFave, Search & Seizure: A Treatise on the
Fourth Amendment § 9.6(a) (5th ed. 2012 & Supp. 2016) ("[T]he
officer would . . . have to establish . . . that there was a
substantial possibility that the suspect possessed items which
could be used for an attack and that he would so use them."). "To
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assess the legality of a protective frisk, a court looks at the
totality of the circumstances to see whether the officer had a
particularized, objective basis for his or her suspicion."
Cardona-Vicente, 817 F.3d at 827 (quoting McKoy, 428 F.3d at 39).
Sometimes, however, the reasonable suspicion of a crime
that justifies a stop will also justify a frisk because the very
nature of the crime poses a sufficient risk that the stopped
individual is armed and dangerous. Pointing to Justice Harlan's
concurrence in Terry, 392 U.S. at 33, we have observed that "[w]hen
the officer suspects a crime of violence, the same information
that will support an investigatory stop will without more support
a frisk." United States v. Scott, 270 F.3d 30, 41 (1st Cir. 2001).
Our holding in United States v. Pontoo, 666 F.3d 20 (1st Cir.
2011), provided an easy vehicle for finding such an association.
The officer conducting the Terry stop reasonably suspected the
defendant of a very recent murder. Id. at 30–31. That was enough,
we held, to warrant a pat-down for weapons as well. "In cases in
which the individual stopped is suspected of having just committed
a murder, it is reasonable for an officer to conclude that [the
individual] may be armed and dangerous." Id. at 30.
We have also extended this type of reasoning to certain
crimes that we pronounce are "associated with" violence. For
example, we have observed that in the case of suspected "large-
scale trafficking in illegal drugs," "the same information that
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will support an investigatory stop will without more support a
frisk." Scott, 270 F.3d at 41. And we have applied this reasoning
to suspected cases of street-dealer-level transactions, at least
where the suspect also appeared unusually anxious at the time of
the stop. See Arnott, 758 F.3d at 45; United States v. Ivery, 427
F.3d 69, 70–71, 73 (1st Cir. 2005); United States v. Gilliard, 847
F.2d 21, 25 (1st Cir. 1988). As justification, we noted that
"[t]he connection between drugs and violence is . . . legendary."
Arnott, 758 F.3d at 45. At the other end of the spectrum, we have
found that suspected fraud in the form of passing a bad check is
not the type of crime that, without much more, will generate
sufficient grounds for a frisk. See Scott, 270 F.3d at 41–42.
Here, the suspected crime purportedly justifying the
stop was the unlawful possession of a firearm. In deciding whether
a particular crime is sufficiently associated with a risk of
violence to justify a frisk, we would ideally have access to
empirical data to measure the extent of the association. Rarely,
though, do courts seem to receive such information. We therefore
rely on our (largely unscientific) observations and experiences
and on comparisons with our (also non-empirical) classifications
of other crimes. Although such an approach might seem dubious in
many circumstances, in the instance of this particular crime--
illegal possession of an instrument designed precisely to cause
serious harm--we can be reasonably confident in our conclusion.
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Simply put, if an officer reasonably suspects a lawfully stopped,
unusually nervous individual of unlawfully possessing a firearm,
the officer need not simply hope that the firearm will not be used.
Rather, to be unusually nervous and reasonably suspected of being
armed unlawfully when stopped is to be reasonably viewed as
dangerous enough to justify a frisk.4
This conclusion means that, in this case, the lawfulness
of the frisk and the lawfulness of the stop turn on the answer to
a single question: Did the facts leading up to the simultaneous
stop-and-frisk make it "reasonabl[e] to conclude" that Belin was
both unusually nervous and in possession of a firearm? Terry, 392
U.S. at 30.
Although the issue is close and we are not free of doubt,
we find that the facts support such a conclusion. Bissonnette
knew that Belin had previously carried a firearm unlawfully, and
that he was listed as a member of the Norfolk Street Bulls gang in
a police database, the accuracy of which Belin does not challenge.
See United States v. Am, 564 F.3d 25, 32 (1st Cir. 2009) (criminal
history and gang affiliation may contribute to reasonable
suspicion); United States v. Kimball, 25 F.3d 1, 7 (1st Cir. 1994)
(similar); cf. United States v. McGregor, 650 F.3d 813, 822–23
4 On the facts of this case, we need not decide whether we
would reach the same conclusion about a person reasonably suspected
of illegally possessing a firearm who was not unusually nervous.
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(1st Cir. 2011) (holding that "[i]n sizing up the whole situation,
the officers could consider all the men's criminal doings and gang
associations," even old ones). The area in which the interaction
occurred was specifically identified as an area fraught with gun
offenses. See United States v. Dapolito, 713 F.3d 141, 149 (1st
Cir. 2013) (fact that area is known for a particular type of crime
may contribute to reasonable suspicion for that crime); United
States v. Wright, 485 F.3d 45, 53–54 (1st Cir. 2007) (same). But
see Illinois v. Wardlow, 528 U.S. 119, 124 (2000) ("An individual's
presence in an area of expected criminal activity, standing alone,
is not enough to support a reasonable, particularized suspicion
that the person is committing a crime."). In addition to not
stopping, as he was entitled to do, Belin also left his companions
and sped up his attempted exit from the scene when he saw the
police.5 Cf. Wardlow, 528 U.S. at 124 (stating that "nervous,
evasive behavior" may be relevant to reasonable suspicion); United
States v. Hart, 674 F.3d 33, 38–39 (1st Cir. 2012) (similar).
During the interaction, but before the stop-and-frisk, Belin
became nervous. The district court found that this was "not the
normal nervousness that accompanies being spoken to by a police
5 We assign no weight to Belin's initial failure to stop (as
opposed to the hurried peeling off from the group). Otherwise, we
would create a catch-22: if he stopped voluntarily, it would not
have been a police-ordered stop, but because he did not stop
voluntarily, the officer could for that reason stop him.
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officer." Nor was its onset coincident with being approached by
Bissonnette. Cf. McKoy, 428 F.3d at 40 ("Nervousness is a common
and entirely natural reaction to police presence . . . .").
Instead, it was a "strong reaction" that only occurred when
Bissonnette asked Belin if he was carrying anything. Belin's
demeanor and facial expression changed, he took a deep breath, and
then his breathing became quick and shallow. He looked around "as
if searching for a means of escape." This type of nervousness
could contribute to the suspicion that Belin was both armed and
dangerous. See Arnott, 758 F.3d at 45 (extreme nervousness
relevant to reasonable suspicion that defendant was armed and
dangerous); Ivery, 427 F.3d at 73–74 (same); Gilliard, 847 F.2d at
25 (same); United States v. Villaneuva, 15 F.3d 197, 199 (1st Cir.
1994) (same). And he was wearing clothes that precluded the
officer from visually confirming the absence of a firearm. See
Villaneuva, 15 F.3d at 199 ("While defendant's clothing was in
current style, and so could not affirmatively be held against him,
its capacity for concealment was not irrelevant." (citation
omitted)). Viewed collectively, these factors gave rise to a
reasonable suspicion that Belin was again unlawfully in possession
of a firearm. And, as we have said, a person who is unlawfully
armed and unusually nervous is reasonably viewed as dangerous
enough to justify a frisk to locate and remove the weapon. We
therefore affirm the denial of Belin's motion to suppress.
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II.
We consider next Belin's challenge to the district
court's decision to allow him to make certain choices in the
conduct of his defense. For the following reasons, we find no
reversible error in the court's patient management of Belin's
rights and demands.
A.6
A few weeks before trial, Belin's experienced and
capable attorney, Paul Garrity, moved to withdraw. At an initial
ex parte hearing on that motion, Garrity explained that he filed
the motion because Belin disagreed with the way Garrity wanted to
defend against the charge. Garrity considered the lines of defense
that he had proposed to be the only "semi-plausible" defenses
available and stated that, without them, Belin would have "no
defense." When given the opportunity to address the court, Belin
quickly revealed that Garrity planned "to say that the gun was
planted on [him] or that maybe [he] didn't know that [he] had the
gun on [him]." Belin stated that he was "never going to agree
with any lawyer saying that at [his] trial." The district court
6 This recitation of the facts draws from the transcripts of
two hearings (which occurred on December 11, 2014 and December 18,
2014) that were sealed by the district court and included in a
Sealed Supplemental Appendix on appeal. We now order those
transcripts, and the appendix that contains them, unsealed after
the parties, in response to a show cause order, agreed that there
is no longer any reason for them to remain sealed.
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told Belin that he had "the right to control the defense" and to
"instruct [his] attorney not to make a particular argument," but
that he also had to cooperate with his attorney. The district
court warned Belin that if he did not cooperate, the court would
allow Garrity to withdraw and would not appoint a new attorney,
since Garrity was Belin's third court-appointed lawyer. Garrity
objected to the conclusion that Belin had the right to tell him
not to make these arguments. He insisted that he had the right to
make "strategic decisions."
After inviting the prosecutor back into the courtroom,
the district court warned Belin about the risks of representing
himself. In particular, the court emphasized that Belin faced a
mandatory minimum sentence of fifteen years in prison,7 that the
rules of evidence and criminal procedure are technical and would
not be relaxed for his benefit, and that "a trained lawyer would
defend [him] far better than [he] could defend [him]self." During
these warnings, Belin stated on three different occasions that he
would not cooperate with Garrity if Garrity insisted on arguing
that the firearm was planted or Belin did not know about it. At
one point, he specified that the reason he did not want Garrity to
make these arguments is because "that's not what happened."
7 The prosecutor had represented that Belin was subject to a
fifteen-year mandatory minimum sentence pursuant to the Armed
Career Criminal Act, see 18 U.S.C. § 924(e), which proved not to
be the case.
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At a second ex parte hearing, the issue arose again.
Garrity stated that it had not been resolved because the defense
Belin wanted him to present "would be frivolous and would lead to
a guaranteed conviction." Garrity once again challenged the
district court's ruling that Belin could instruct him not to pursue
his preferred lines of defense. Belin once again insisted that he
would not go along with Garrity's proposed lines of defense because
they relied on facts that were not true. The district court
acknowledged that the question was difficult but decided not to
change its earlier ruling. It reasoned that this choice was
somewhere between the large-scale determinations, such as whether
to plead guilty, that are reserved for the defendant and the small-
scale decisions, such as what questions to ask, that are reserved
for counsel. The district court considered it a matter of common
sense that an attorney could not overrule his client and "put on
a defense that the client feels is unsupportable." The district
court also questioned why a defendant should be allowed to forego
all available defenses by pleading guilty but not some available
defenses at trial. The district court therefore ordered Garrity
to stay in the case and do as Belin instructed because any other
attorney the court appointed would face the same problem.
The district court then spoke again with Belin in order
to ensure that Belin understood the consequences of waiving these
lines of defense. After the colloquy, the district court found
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that "the defendant has knowingly waived, []voluntarily[8] waived
his right under the Sixth Amendment to have counsel raise or
suggest two factual issues in order to try to raise reasonable
doubts in the minds of the jury, those two factual issues being,
first[,] that the gun may have been planted on Mr. Belin, and,
second, that Mr. Belin did not know that the gun was on him at the
time he was arrested."
B.
There is a threshold issue about how to characterize
what occurred in this case. The district court initially treated
its ruling that Belin could instruct his attorney to forgo two
lines of defense as a partial waiver of Belin's right to counsel,
conducted a colloquy, and found that Belin knowingly and
voluntarily engaged in this partial waiver. When a criminal
defendant waives counsel, but only in part, we call this a "hybrid
representation." United States v. Nivica, 887 F.2d 1110, 1120
(1st Cir. 1989). The district court later revised its view of
what it had done, stating that it had not created a "hybrid
representation," but had simply allowed Belin to direct his
defense. On appeal, Belin continues to characterize his
relationship with counsel in the wake of the district court's
8 The transcript says "involuntarily." It is clear from
context that either the district court misspoke or a transcription
error occurred. Belin does not argue otherwise.
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ruling as a hybrid representation. The government does not
challenge that characterization. With the parties thus aligned,
we will assume (without deciding) that the effect of the district
court's ruling was not simply to define the extent to which a fully
represented defendant may direct actions of counsel. Rather, we
will assume (again without deciding) that the district court
created a hybrid representation, which is to say that it accepted
a waiver of the right to counsel on a portion of the defense.9
This court has held that a partial waiver of the right
to counsel requires that the trial court satisfy the same standard
that applies to a complete waiver of the right to counsel. See
Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir. 1976). The
defendant must waive his right to counsel with unequivocal
language. See United States v. Jones, 778 F.3d 375, 389 (1st Cir.
2015). Even if the defendant has done so, the waiver must also be
knowing and intelligent. See United States v. Robinson, 753 F.3d
31, 43 (1st Cir. 2014). A knowing and intelligent waiver of the
right to counsel requires the defendant to have understood "the
magnitude of the undertaking and the disadvantages of self-
9 Because we decide the issue on this ground, we do not address
the parties' arguments about what the Rules of Professional Conduct
require of a defense attorney in this situation. Whatever these
rules require, Belin agrees that we may affirm the district court
if he "was fully apprised of his right to counsel and of the
disadvantages he might encounter by limiting the information his
counsel could present."
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representation," as well as "the seriousness of the charge and of
the penalties he may be exposed to." Id. (quoting Maynard, 545
F.2d at 279). Our standard for reviewing the adequacy of such a
warning, called a Faretta warning after Faretta v. California, 422
U.S. 806, 835 (1975), is effectively de novo: "[T]he efficacy of
the court's Faretta warning must be evaluated on the basis of the
record as a whole." Jones, 778 F.3d at 389. "We will uphold a
waiver of the right to counsel as long as the record supports a
reasoned conclusion that the defendant was fully apprised of his
right to counsel and of the disadvantages he would encounter should
he elect to proceed pro se." Id. "[W]here the court's Faretta
warning is less thorough than it might be, we may nevertheless
affirm a district court's decision to allow a defendant to proceed
pro se if 'the record amply supports the lower court's conclusion
that [the defendant] was fully aware of the disadvantages he would
face as a pro se defendant.'" Robinson, 753 F.3d at 44 (second
alteration in original) (quoting United States v. Francois, 715
F.3d 21, 30 (1st Cir. 2013)).
Belin argues that the warning he received was inadequate
because the district court did not explain: (1) why trial counsel
thought the rejected defenses were Belin's best chance of
acquittal; (2) that trial counsel was in a better position to
decide how to defend against the charge than the defendant; and
(3) that some parts of trial are confusing to a lay person and
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Belin might not understand the full consequences of his decision.
These contentions are not supported by the record.
Belin was made abundantly aware why his attorney thought
the rejected defenses provided the best chance of acquittal and
that the likely consequence of rejecting the defenses was
conviction. At the hearings before the district court, defense
counsel stated on a number of different occasions that the defenses
he was proposing were Belin's only available defenses, that not
using them would lead to a "guaranteed conviction," and that
Belin's preferred defense was "not a defense." Before Belin was
under oath, the court warned him, "Mr. Garrity thinks that it may
make it more likely you'll be convicted if you don't pursue a plant
defense or suggest that you didn't know the gun was on you. He
thinks that that increases the likelihood the jury will convict
you, so there's some danger in it." During the Faretta warnings,
the district court explained that Belin would not be guilty of the
crime if the gun were planted on him or if he did not "knowingly
control[] it." The court ensured Belin understood that his
attorney thought that the rejected strategies "would be an
important part of representing [Belin] effectively at trial," that
"if he does not put on those factual defenses, in his judgment
[Belin is] more likely to be convicted by the jury," and that the
consequences of forgoing the defenses included "the possibility
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that it may be more likely that [Belin would be] convicted by the
jury at the end of the day."
The district court also made clear to Belin that defense
counsel had better knowledge of the law than did Belin. At the
first ex parte hearing, when the court went through a colloquy
with the defendant in anticipation of the possibility that the
defendant would be defending himself, the court warned Belin, "It's
unwise of you to represent yourself despite your experience.
You're not sufficiently familiar with the law or with court
procedure or the rules of evidence to properly represent yourself,
and I strongly urge you to cooperate with your lawyer going forward
and to not try to represent yourself." The district court hit on
this same theme at the second ex parte hearing, noting that "[w]hat
the lawyer brings to the table is, of course, the legal knowledge
and training and skill and so forth." Finally, the district court
told Belin that he was "facing a mandatory minimum sentence of 15
years in prison and a possible maximum sentence of life."
These warnings adequately apprised Belin that some parts
of trial are confusing to a lay person and that Belin might not
understand the full consequences of his decision. Moreover, Belin
engaged with the district court during the colloquy and asked for
clarification on multiple occasions. Belin asked about the reasons
his attorney believed the proposed lines of defense would be
helpful, what it would mean to waive those defenses, as well as
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other questions about his trial rights. The district court
emphasized that Belin did not bear the burden of proof, and that
his attorney proposed the waived lines of defense as ways of
creating reasonable doubt in the minds of the jurors. The second
ex parte hearing ended with Belin stating that he had no other
questions for the district court.
These warnings adequately informed Belin of his
attorney's superior legal knowledge, the seriousness of the
charge, the penalties he may be exposed to, and the disadvantages
of forgoing the lines of defense his attorney recommended. We
also acknowledge much common sense in the district court's
observation that Belin had the right to plead guilty if he wanted.
He also had a right to testify and admit that no gun was planted
on him or to insist on a trial even if he had no defense. See
Florida v. Nixon, 543 U.S. 175, 187 (2004) ("A defendant . . . has
'the ultimate authority' to determine 'whether to plead guilty,
waive a jury, testify in his or her own behalf, or take an appeal.'"
(quoting Jones v. Barnes, 463 U.S. 745, 751 (1983))). By securing
an order that relieved his counsel of any obligation or ability to
press lines of defense predicated on what Belin deemed to be
falsehoods, Belin likely did little more than he would have done
had he exercised those rights. But cf. Nixon, 543 U.S. at 178(holding that it was not ineffective assistance for defense counsel
to decide, without defendant's approval, to concede guilt during
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liability phase of first-degree murder trial); Jones, 463 U.S. at
751 (holding that it was not ineffective assistance for appellate
counsel to decline to make every nonfrivolous argument requested
by the defendant). In any event, even assuming that the district
court effectively ordered a hybrid representation, it did so after
conducting an adequate colloquy sufficient to allow Belin to
exercise his right to waive counsel.
III.
For the foregoing reasons, we affirm Belin's conviction.
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