United States v. Kerr ( 2014 )

11-5462-cr(L); 10-3393-cr(con)
United States v. Kerr
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2011
(Submitted: April 18, 2012 Decided: May 16, 2014
Amended: June 18, 2014)
Docket Nos. 11-5462-cr(L), 10-3393-cr(con)
________________________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
- v. -
DESMOND KERR,
Defendant-Appellant.
________________________________________________________________________
Before:
KEARSE, PARKER, and HALL, Circuit Judges.
Appeal from the August 6, 2010 judgment of the United States District Court for the
Northern District of New York (Glenn T. Suddaby, District Judge), convicting Appellant,
following his mid-trial guilty plea, of possession with intent to distribute
methylenedioxymethamphetamine and sentencing him principally to 121 months‟
incarceration. We affirm for the reasons set forth below.
AFFIRMED.
KATHERINE ALFIERI, Law Offices of Katherine Alfieri,
New York, NY, for Defendant-Appellant Desmond
Kerr.
RAJIT S. DOSANJH, Assistant United States Attorney
(Ransom P. Reynolds, Assistant United States
Attorney, on the brief), for Richard S. Hartunian,
United States Attorney for the Northern District
of New York, Syracuse, NY, for Appellee United
States of America.
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11-5462-cr(L); 10-3393-cr(con)
United States v. Kerr
HALL, Circuit Judge:
Defendant-Appellant Desmond Kerr is a Canadian citizen who was arrested by
United States customs authorities after they searched his vehicle at the U.S.-Canadian border
and discovered thousands of pills containing 3, 4 methylenedioxymethamphetamine
(“MDMA”), a Schedule I controlled substance. Kerr was charged with one count of
knowingly and intentionally possessing MDMA with intent to distribute, in violation of 18
U.S.C. § 841(a)(1) and (b)(1)(C). A turbulent pretrial period ensued, during which Kerr
ceased communicating with and then effectively fired his first two appointed attorneys,
insisted on pressing several ill-advised theories of defense to the exclusion of all others, and
underwent a court-ordered competency examination that ultimately found him competent to
stand trial. Kerr elected to represent himself at trial but, with the assistance of a newly
appointed attorney, pled guilty midway through. After entering his plea, Kerr resumed his
prior behavior: he again refused to communicate with counsel and filed numerous pro se
motions in which he sought to withdraw his plea, press his theories of defense, and obtain
the assistance of new counsel. At sentencing, Kerr‟s attorney expressed concern about
Kerr‟s mental stability and represented that Kerr had been unable to help him prepare for
sentencing; the district court also commented on Kerr‟s belligerent and counterproductive
behavior. Ultimately, the district court sentenced him principally to 121 months‟
imprisonment, rejecting his several sentencing arguments.
Through new counsel, Kerr argues on appeal that his “erratic” and “irrational”
behavior following the entry of his plea required the district court to hold a competency
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United States v. Kerr
hearing before imposing sentence and that he was deprived of his Sixth Amendment right to
counsel by the denial of his multiple post-plea requests for an attorney to help him withdraw
his plea. He also challenges several aspects of the sentence imposed. In a separate pro se
brief, Kerr contends that the district court erroneously denied his pro se motion to withdraw
his plea and challenges several pre-plea aspects of his prosecution and trial. We affirm.
BACKGROUND
In February 2009, Customs and Border Protection officers searched Kerr‟s vehicle as
he attempted to enter the United States from Canada at the Alexandria Bay, New York port
of entry. In the course of the search, the officers discovered approximately seven thousand
pills containing MDMA. The officers found the pills in two locations: four thousand were
concealed in black packages between the vehicle‟s front seats, while the remaining three
thousand were stowed within the vehicle‟s rear interior paneling. Together, the seven
thousand pills weighed 2,068 grams. Kerr was arrested and charged with one count of
possession with attempt to distribute MDMA.
I. Pretrial Proceedings
Between his February 2009 arraignment and his April 2010 trial, Kerr cycled through
a succession of attorneys and inundated the district court with numerous pro se requests for
its assistance with his several theories of defense. First, in September 2009, Kerr moved to
replace the Federal Public Defender initially assigned to his case. The district court granted
the motion and, after Kerr expressed dissatisfaction with a second attorney, appointed
Jeffery DeRoberts as new counsel. Several weeks later, DeRoberts informed the court that
Kerr was unhappy with his representation and had requested that the court appoint a
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United States v. Kerr
different attorney known to Kerr. The district court denied this request, explaining that
Kerr was not entitled to choose assigned counsel. At a subsequent conference and
suppression hearing held in October 2009, Kerr alleged that the government had improperly
destroyed a number of the recovered MDMA pills, that the assigned Assistant United States
Attorney (“AUSA”) had committed perjury, and that his various attorneys had refused to file
motions addressing these issues.1 When Kerr continued to interject and press these pro se
arguments, the district court halted the proceedings to inquire whether he understood the
charge against him, the potential penalties he faced, and the importance of his attorney.
Kerr confirmed that he was charged with possession with intent to distribute, stated that he
understood the penalties, and acknowledged that his lawyer had knowledge of the law and
court procedure he did not possess.
On December 9, 2009, some five days before the scheduled trial date, the district
court held a final pretrial conference during which Kerr represented that DeRoberts was
“ineffective” and in “dereliction of duty.” Kerr repeatedly stated that he did not want
DeRoberts to speak on his behalf or appear at trial, and that he wished to represent himself.
The court acknowledged Kerr‟s right to self-representation and stated that DeRoberts would
1 In December 2009, Kerr filed a pro se notice of appeal from the district court‟s denial of his
suppression motion and his motion to dismiss the indictment due to the government‟s
destruction of evidence. The resulting interlocutory appeal remained pending in this Court
without substantive filings by either party until October 2011, when the government moved
to dismiss the appeal as taken from a non-final order. By that time, however, the
interlocutory appeal had been designated the lead case and consolidated with Kerr‟s August
2010 appeal from his final judgment of conviction, which by then was fully-briefed. In
February 2012, we denied the government‟s motion to dismiss, but construed Kerr‟s
arguments made in the interlocutory appeal as relating to his 2010 appeal from the final
judgment.
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United States v. Kerr
be available at trial as standby counsel. Kerr objected to this proposal, informing the court
that he wanted to call DeRoberts as a defense witness to testify about the government‟s
“perjury” as to the existence of certain surveillance videotapes of the border crossing. Kerr
also requested that the court subpoena several other witnesses, including the then-Chief
Judge of the Northern District of New York and the then-interim United States Attorney for
the Northern District of New York. Kerr refused to explain his reasons for subpoenaing
these last witnesses, stating only that the court would “find out” on the date of trial.
Expressing concern with Kerr‟s “wilder and wilder” requests and “self-destructive”
decisions, the district court adjourned the trial and ordered him, pursuant to 18 U.S.C.
§ 4241(a), to undergo a mental competency examination. After examining Kerr,
psychologists at the Federal Medical Center (“FMC”) found him competent to stand trial
and presented those results in a forensic medical report dated March 19, 2010. The report
described Kerr as “an obstinate, strong-willed, and opinionated individual” whose
dissatisfaction with his attorneys stemmed not from “psychotic symptoms,” but rather from
“his belief that his attorneys ha[d] not done sufficient work to mount an adequate defense.”
The report also explained that Kerr‟s defensive strategy of accusing the AUSA of perjury,
while possibly imprudent, was not evidence of incompetence. In sum, the report concluded
that Kerr was able to assist his attorney in preparing a defense if he so chose, and that there
was no “objective evidence” that he suffered from “a mental disorder which would impair
his ability to understand the nature and consequences of the court proceedings against him.”
The district court reconvened on March 31, 2010. On that date, Kerr did not permit
DeRoberts to sit with him at counsel table. He adamantly expressed his desire to represent
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United States v. Kerr
himself with the assistance only of standby counsel, insisting that the results of the
competency evaluation proved his ability to do so. The court granted DeRoberts‟s resulting
motion to withdraw on the ground that there had been a complete breakdown in attorney-
client communication. In his stead, the court appointed Robert Wells as standby counsel
and directed Kerr to consult with him. At the close of the conference, the court scheduled
trial to begin on April 14, 2010 and explained to Kerr that it would ask him a series of
questions at the beginning of trial to ensure he fully understood the implications of self-
representation.
II. Trial and Guilty Plea
On the scheduled trial date, Kerr appeared with Wells as standby counsel. Before
jury selection, the district court stated that it had previously “advised [Kerr] of the
disadvantages of representing [himself]” and inquired of Kerr whether that remained his
intention. Kerr confirmed that it was. The court cautioned him that self-representation was
“very difficult” and that, despite his pro se status and lack of legal training, he was required to
follow the court‟s instructions and comply with the rules of evidence and procedure. When
Kerr renewed his request to subpoena three witnesses—his former attorney, the former
interim United States Attorney, and the Chief Judge of the Northern District—the court
stated that it would issue the subpoenas only if Kerr explained how their testimony was
relevant to the pending criminal charge. Kerr demurred, claiming that he should not be
required to disclose his theory of defense. Again, the court flagged Kerr‟s lack of legal
training, explaining, inter alia, that any testimony of these witnesses would “certainly” be
hearsay and the fact that his former attorney represented Kerr in the matter did not make
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United States v. Kerr
the attorney “a witness with any relevant testimony to offer in this case.” The court later
urged Kerr to consult with Wells concerning issues of jury selection.
On April 14, the case proceeded to trial at which Kerr selected a jury in consultation
with Wells; gave an opening statement premised on his theories that the AUSA committed
perjury, the government destroyed evidence, and he was prevented from calling his chosen
witnesses; extensively cross-examined government witnesses; and made relevant objections.
Upon the close of the government‟s evidence on April 16, however, Kerr informed the court
that he intended to plead guilty to the charge. The following exchange took place:
THE COURT: Now, have you agreed to allow Mr. Wells to
represent you in this matter, for this --
THE DEFENDANT: Yes, your Honor.
THE COURT: -- in this capacity? Because there are questions
that I‟m going to need to ask him and he needs to advise you
and hopefully he‟s talked to you about the Sentencing
Guidelines . . . .
THE DEFENDANT: Yes.
Appellant App‟x at 96. Following this colloquy, the district court informed Kerr that it was
“going to at this point accept the fact that Mr. Wells is your attorney.”
The court conducted a change of plea hearing that same day.2 Kerr testified that he
was not under the care of a doctor or psychiatrist and that his ability to understand the
proceeding was not impaired. Attorney Wells also stated that he was satisfied that Kerr‟s
plea was given freely and voluntarily. Based upon these representations and Kerr‟s other
responses during its Rule 11 inquiry, the court determined that he was “competent and
2 Although Kerr did not plead guilty pursuant to a formal plea agreement, he agreed during
the change of plea hearing to withdraw his December 2009 interlocutory appeal from the
denial of his suppression motion and motion to dismiss.
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United States v. Kerr
capable of entering an informed plea.” As to the factual basis for the plea, the government
explained that its proof at trial had shown that the Customs and Border Protection officers
discovered pills containing MDMA in two locations of Kerr‟s vehicle and that, in total, the
recovered pills weighed 2,068 grams. Kerr confirmed this assessment of the evidence,
further explaining that he had entered into an agreement with an unidentified individual
whereby the individual would place something in his parked vehicle and then, in exchange
for $5,000, Kerr would drive the vehicle from Canada to New York. After accepting the
plea, the district court told Kerr that the Probation Department would interview him in
connection with his presentence report and that “Wells can be there with you if you like,
that‟s up to you and him.”
III. Post-Plea Proceedings & Sentencing
Several days after pleading guilty, Kerr filed a pro se motion to withdraw his plea—
the first in a succession of pro se motions he filed in the post-plea, pre-sentencing phase of
the case. Kerr asserted in the motion that he wanted to “take back” his plea to permit the
“the jury [to] find [him] guilty or not guilty.” The district court denied his request on April
26, concluding that Kerr‟s plea allocution satisfied the requirements of Federal Rule of
Criminal Procedure 11(b), he had not shown a “fair and just” reason for withdrawing the
plea, and he had not accounted for the prejudice that would inure to the government and the
court if his request were granted.
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United States v. Kerr
On May 14, Kerr requested the appointment of counsel to assist him with, inter alia, a
motion to withdraw his guilty plea.3 The following day, he again moved to withdraw his
plea, asserting, without providing specifics, that the AUSA and government witnesses had
perjured themselves, he had received ineffective assistance of counsel, there were “valid
grounds for withdrawing [his] guilty plea,” and he had a “claim of innocence.” Kerr
reiterated his request for new counsel in a June 22 letter and in a July 7 pro se motion to
dismiss the charges due to the government‟s alleged perjury and destruction of evidence. In
his June 22 letter, Kerr claimed, for the first time, that “standby counsel” provided
ineffective assistance by “instructing [him] to plea[d] guilty.” The court denied all pending
motions by order entered on July 22, ruling that both Kerr‟s request for new counsel and his
renewed motion to withdraw his plea were “unsupported by a showing of cause,” and noting
that in April it had denied Kerr‟s first motion to withdraw his guilty plea.4
While these events unfolded, the Probation Department submitted a presentence
report in which it held Kerr accountable for the entire quantity of MDMA pills found in the
vehicle. Based on a total offense level of 32 and Kerr‟s criminal history category of I, the
Probation Department calculated Kerr‟s advisory sentencing range under the United States
Sentencing Guidelines as 121 to 151 months‟ imprisonment. It also noted that Kerr had
3 Wells informed Kerr before the submission of this letter that, given his affirmations during
the change of plea hearing regarding the knowing and voluntary nature of Kerr‟s plea, he
was “prohibited” from assisting Kerr with the motion to withdraw the plea. Wells also
urged Kerr to “return to representing [himself] pro se” so that Wells could advise him as he
proceeded.
4 The court also denied Kerr‟s several pro se motions to set aside the “jury verdict” and to
vacate his conviction on various grounds.
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United States v. Kerr
refused to meet with the Probation officer tasked with preparing the report. In a pro se letter
sent shortly before sentencing, Kerr explained that although he had wanted to meet with the
Probation officer, he did not wish to do so with Wells present because Wells had “lied” to
him during trial.
For his part, Wells explained in a sentencing memorandum submitted on Kerr‟s
behalf that Kerr had refused to meet with him to prepare for sentencing; he also expressed
his concern with Kerr‟s “mental stability.” Wells took issue with the FMC psychologists‟
competency determination, representing that although he had no “training in mental health
diagnosis,” Kerr‟s actions over the course of the prosecution were “not that of a rational and
undisturbed mind” and he had been unable to help Wells prepare for sentencing. Wells
further advised the court that he could not ethically help Kerr with the motion to withdraw
the plea because his affirmation at the change of plea hearing that Kerr pled guilty
voluntarily created a “classic and irremediable conflict” with respect to that motion. He
therefore urged the court to appoint new counsel for purposes of that motion. Finally,
Wells argued that Kerr should be held accountable only for the four thousand MDMA pills
found between the front seats of his vehicle because there was no evidence he knew about
the pills hidden within the rear interior paneling.
The court imposed sentence on August 4, 2010. Although Wells appeared at the
hearing, he informed the court that Kerr had instructed him not to speak. In his statement
to the court, Kerr again expounded at length upon his theories that the government
improperly destroyed a number of the MDMA pills, the AUSA committed perjury, and the
court improperly deprived him of the opportunity to call his chosen witnesses at trial. The
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United States v. Kerr
court interjected, stating that Kerr was “hung up on . . . insignificant . . . details” irrelevant
to sentencing. It went on: “I cannot figure you out, sir, which is why I had a mental exam
done. They tell me you‟re competent and capable but you are the most belligerent individual
I have ever met in my life . . . , [and] I can‟t figure out why.” The court further asserted that
Kerr‟s refusal to accept the advice of an attorney had “made [his] situation so much worse.”
After obtaining Kerr‟s permission to speak, Wells again expressed his concerns about Kerr‟s
mental state and reiterated his disagreement with the FMC psychologists‟ competency
determination. He also argued that the court should recognize Kerr‟s minor role as a
“courier” or “drug mule.”
After hearing from the government, the court adopted the facts contained in the
presentence report and found, consistent with the calculations of the Probation Department,
that Kerr‟s Guidelines range of imprisonment was 121 to 151 months. The court sentenced
Kerr to 121 months‟ imprisonment, explaining that it found the sentence “fair, just, and
sufficient but not greater than necessary to comply with the goals of sentencing set forth in
18 U.S.C. 3553(a).” The court emphasized that, had Kerr been “more cooperative” with
counsel and the Probation Department, it may have been presented with a “fuller record”
justifying the imposition of a lesser sentence, especially given his lack of criminal history.
Once again, the court remarked that it could not understand Kerr‟s intransigent behavior.
Kerr timely appealed the court‟s August 6, 2010 judgment. Approximately one week later,
he submitted a letter reiterating that Wells was “standby counsel” only and did not speak on
his behalf.
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United States v. Kerr
DISCUSSION
I. Kerr’s Competency
Due process “„prohibits the criminal prosecution of a defendant who is not
competent to stand trial.‟” United States v. Quintieri, 306 F.3d 1217, 1232 (2d Cir. 2002)
(quoting Medina v. California, 505 U.S. 437, 439 (1992)). A defendant is not competent, and
the criminal proceeding against him may not progress, when his “mental condition is such
that he lacks the capacity to understand the nature and object of the proceedings against
him, to consult with counsel, and to assist in preparing his defense.” Drope v. Missouri, 420
U.S. 162, 171 (1975). This constitutional right is safeguarded by 18 U.S.C. § 4241, which
requires the district court, upon its own motion if necessary, to hold a competency hearing
“if there is reasonable cause to believe that the defendant may presently be suffering from a
mental disease or defect rendering him mentally incompetent to the extent that he is unable
to understand the nature and consequences of the proceedings against him or to assist
properly in his defense.” 18 U.S.C. § 4241(a); see also United States v. Zhou, 428 F.3d 361, 379
(2d Cir. 2005) (noting that the standards under due process and § 4241 are “essentially
equivalent” (citing Nicks v. United States, 955 F.2d 161, 168 (2d Cir. 1992))).
The existence of “reasonable cause” is a highly particularized assessment that “„varies
in each case.‟” Zhou, 428 F.3d at 379 (quoting United States v. Nichols, 56 F.3d 403, 414 (2d
Cir. 1995)). We have identified several factors upon which the district court may rely when
making the reasonable cause determination, including psychiatric reports assessing the
defendant‟s competence, see Zhou, 428 F.3d at 379, and the court‟s own “observations of the
defendant‟s demeanor during the proceeding,” Quintieri, 306 F.3d at 1233. See also Drope, 420
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United States v. Kerr
U.S. at 180 (explaining that there are “no fixed or immutable signs which invariably indicate
the need for further inquiry to determine [the defendant‟s] fitness to proceed”). The right
not to be prosecuted while incompetent “spans the duration of a criminal proceeding.”
United States v. Arenburg, 605 F.3d 164, 168 (2d Cir. 2010). A district court must therefore
“„always be alert to circumstances suggesting a change that would render the accused unable to
meet the standards of competence to stand trial,‟” id. at 168-69 (quoting Drope, 420 U.S. at
181) (emphasis in original), an obligation that “takes on increased significance where, as here,
a criminal defendant elects to proceed pro se,” id. at 169. We review a district court‟s decision
not to order a competency hearing for abuse of discretion. Id.Here, the district court acted well within its discretion when it declined to order a
competency hearing before accepting Kerr‟s April 16, 2010 guilty plea. Although the court
was obviously troubled by Kerr‟s pretrial behavior, it was entitled to rely on the March 19,
2010 forensic report that found him competent to understand the proceedings and capable
of working with his attorney if he so chose. Zhou, 428 F.3d at 379. In addition, the district
court had the benefit of observing Kerr during the March 31 pretrial conference and the
April 14-16 trial. The transcripts of those proceedings show that although he was unfamiliar
with the law and court procedure, Kerr vocally advocated on his own behalf, made relevant
objections during the government‟s direct examination of witnesses, and consulted with
standby counsel when necessary. During the change-of-plea hearing, Kerr also responded
cogently to the district court‟s inquiries and displayed his understanding of the charge. In
short, we discern no unusual circumstances that should have given the district court pause
before accepting Kerr‟s plea. See Quintieri, 306 F.3d at 1233; see also Wojtowicz v. United States,
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United States v. Kerr
550 F.2d 786, 791 (2d Cir. 1977) (where a defendant has been found competent following a
court-ordered evaluation, a district court generally is “not required to hold a competency
hearing before accepting a plea”); Saddler v. United States, 531 F.2d 83, 86 (2d Cir. 1976)
(district court under no obligation to question a defendant‟s competency when his “answers
to the court‟s Rule 11 inquiries, his demeanor and his testimony . . . all appeared to be
rational and coherent”).5
Having concluded that the district court was not required to hold a competency
hearing before Kerr‟s April 16 plea, we must now assess whether the record reflects any
“circumstances suggesting a change that would render [Kerr] unable to meet the standards
of competence” by the time of his August 4 sentencing. Arenburg, 605 F.3d at 168-69(internal quotation marks omitted). In his counseled brief, Kerr contends there were two
such circumstances: his “erratic” and “irrational” post-plea behavior, and Wells‟s
representations that the FMC psychologists “missed something” and that Kerr was unable to
help him prepare for sentencing.
We first hold that, upon consideration of the whole record, Kerr‟s post-plea behavior
was not so “erratic” that it should have given the district court reason to doubt his
competency. Indeed, the record reflects that Kerr‟s obstinate, belligerent, and obsessive
behavior remained a constant throughout the entire proceedings. The district court ordered
the pretrial competency evaluation after it became increasingly disturbed by Kerr‟s obsession
with his pro se theories of defense to the exclusion of other issues, his refusal to cooperate or
5 Given this conclusion, we reject any suggestion in counsel‟s brief that Kerr was “likely”
incompetent at the time of his trial and plea. See Appellant Br. at 45 & n.12.
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United States v. Kerr
communicate with his attorneys, and his insistence on subpoenaing irrelevant witnesses.
This is precisely the same behavior Kerr flags as “erratic” in the post-plea phase of the case,
when he cut off communication with Wells and repeatedly attempted to press his theories of
defense despite having pled guilty. Although the “obligation to be vigilant for reasonable
cause [to question the defendant‟s competency] . . . does not disappear upon a pretrial
finding that the defendant is competent to stand trial,” Arenburg, 605 F.3d at 170 (internal
quotation marks omitted), under the circumstances of this case we will not fault the district
court—which observed Kerr over the entirety of the proceedings below—for not twice
questioning the same behavior. Kerr‟s situation is therefore distinguishable from those cases
in which we have found it necessary for courts to revisit their initial reasonable cause
determinations. See id. at 169-71 (district court erred by suggesting that a magistrate judge‟s
pretrial competency determination was dispositive of the defendant‟s competence at trial and
was required to revisit the reasonable cause determination where, at trial, the assigned AUSA
questioned the defendant‟s mental stability and the defendant, who had a history of mental
illness, made numerous incoherent statements); Wojtowicz, 550 F.2d at 789-90 (remanding to
the district court for an evidentiary hearing where defendant, who was assessed as competent
before the entry of his plea, submitted a post-judgment affirmation stating that he had
attempted to commit suicide on the morning of sentencing).
Kerr‟s obsession with his defensive theories, his distrust of his attorneys, and his
belligerent attitude were also not so bizarre as to require the district court to question his
competency for a second time. Compare Arenburg, 605 F.3d at 171 (reasonable cause to
reconsider defendant‟s competency where “he made repeated references to „radio waves,‟
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United States v. Kerr
„microwave channels,‟ and a conspiracy involving MGM Studios and the government with
the object of publicly broadcasting his thoughts”), and United States v. Auen, 846 F.2d 872,
874-75, 878 (2d Cir. 1988) (finding reasonable cause for a competency hearing and
remanding for the district court to conduct such a hearing where defendant, inter alia,
compared the agent investigating his case with a cat he had put down, complained that he
had been the victim of “psychopolitical terrorism by the Internal Revenue Service,” and
threatened the government‟s attorneys), with Zhou, 428 F.3d at 380-81 (no reasonable cause
to question defendant‟s competency where the district court had observed the defendant
“over a substantial period of time” and the defendant was found competent in a medical
report that described him as “defensive, stubborn, and evasive regarding the details of his
case”). Disputes between criminal defendants and their attorneys are not at all uncommon,
see United States v. White, 174 F.3d 290, 296 (2d Cir. 1999), and many defendants “assert that
their rights have been denied at every turn,” “demonstrate that they do not understand how
the legal system handles witnesses,” and “forget or choose to ignore what judges said
earlier,” Timberlake v. Davis, 409 F.3d 819, 823 (7th Cir. 2005). In sum, although Kerr
“demonstrated that he can be rude, unreasonable, and myopic in his approach to this case,
that is not the same as incompetence and is not the type of conduct that implies the kind of
mental shortcomings required to oblige a district court to sua sponte order a competency
examination.” United States v. Alden, 527 F.3d 653, 660 (7th Cir. 2008).
Against a different backdrop, we may well have greater cause for alarm when
confronted with such statements by defense counsel as Wells‟s that his client was acting
irrationally and could not assist with preparing a defense. Cf. United States v. Kirsh, 54 F.3d
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United States v. Kerr
1062, 1071 (2d Cir. 1995) (noting that defense counsel‟s failure to indicate the defendant
could not assist in her defense or understand proceedings was “substantial evidence” of
competency). Here, however, the district court had substantially longer experience with
Kerr over the course of the proceedings than did Wells, who did not become standby
counsel until immediately before trial. In addition, Wells freely acknowledged that, in
making these representations, he had “no training in mental health diagnosis.” Appellant
App‟x at 235. Finally, it is apparent that Wells‟s declaration that Kerr could not help him
prepare for sentencing was based on Kerr‟s refusal to meet with him, which, as we have
noted, was consistent with Kerr‟s pretrial behavior toward his former attorneys. Given all
of the above, we hold that the district court did not abuse its discretion by not revisiting the
issue of Kerr‟s competency before imposing sentence.
II. Sixth Amendment Right to Counsel during Post-Plea Proceedings
As an initial matter, although Kerr suggests that it “appears . . . [he] never entered a
constitutionally sufficient waiver of his right to counsel” because the district court
“neglected to engage in the appropriate waiver of counsel inquiry” before allowing him to
proceed pro se, he expressly forgoes a separate Sixth Amendment claim premised on this
supposed deficiency. See Appellant Br. at 24 & n.10. We therefore decline to address the
propriety of the district court‟s pretrial ruling permitting Kerr to represent himself. See
Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the
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briefs are considered waived and normally will not be addressed on appeal.”); see also United
States v. Greer, 285 F.3d 158, 170 (2d Cir. 2002) (same).6
With respect to the Sixth Amendment arguments he does raise, Kerr first asserts in
his counseled brief that it is unclear from the record whether, at the change of plea hearing,
the district court appointed Wells as counsel for the remainder of the proceedings, or only
for the entry of the plea. Appellant Br. 25. Given this opacity, Kerr advances two
alternative arguments regarding right to counsel. First, he contends that if the district court
elevated Wells from standby counsel to full counsel only for purposes of the plea, then it
deprived him of his right to counsel at a critical stage of the proceeding when it denied his
request for counsel‟s assistance with his motion to withdraw the plea. Appellant Br. at 25-
6 Even if were we to reach this issue, we likely would conclude that Kerr knowingly and
intelligently waived his right to counsel before trial. See Faretta v. California, 422 U.S. 806, 835
(1975) (holding that a defendant who seeks to represent himself “should be made aware of
the 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” (internal quotation marks
omitted)). The record reflects that over the course of the pretrial proceedings, during which
he repeatedly and emphatically demanded to represent himself, Kerr: (1) confirmed that he
understood the nature of the charges and the potential penalties he faced, see Special App‟x
at 28; and (2) acknowledged the importance of having the assistance of an attorney, see id. at
55-56. In addition, the district court warned Kerr immediately before trial about the dangers
and difficulties of proceeding pro se. See Appellant App‟x at 80, 84-86. Thus, while the
district court‟s Faretta colloquy in this case was not ideal, it was not so deficient as to make
Kerr‟s waiver of his Sixth Amendment right unknowing. See, e.g., Torres v. United States, 140
F.3d 392, 401 (2d Cir. 1998) (explaining that “there is no talismanic procedure to determine
a valid waiver” and that “[w]e need not analyze the district court‟s every word, so long as the
record as a whole demonstrates that the defendant knowingly and intelligently waived her
right to counsel”); United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (finding a Faretta
examination “adequate” where the district court warned the defendant “of the specific perils
of representing himself and the advantages of having legal representation,” the defendant
was “clearly aware of the penalties he faced if convicted,” and the defendant “clearly stated
that he would prefer to proceed pro se”).
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United States v. Kerr
28. Alternatively, he argues that if the court upped Wells to full counsel for the remainder of
the proceeding, then it should have appointed new counsel to assist Kerr with his motion to
withdraw his plea because of Wells‟s “actual conflict” with respect to that motion. See id. at
28-41.
We note that the district court did not state explicitly that Wells returned to standby
status following the entry of the plea. Despite any possible confusion, several reasons
support our conclusion that the district court elevated Wells to full counsel only for
purposes of the plea, and that Kerr thereafter resumed his self-representation.
Although the district court told Kerr at the plea hearing that it was “going to at this
point accept the fact that Mr. Wells is your attorney,” Appellant App‟x at 98, it implied after
accepting the plea that participation in an on-going relationship was optional, informing
Kerr that the Probation Department would interview him and that “Wells can be there if
you like, that‟s up to you and him,” id. at 117 (emphasis added). The district court‟s
observation that Wells was entitled to opt out of accompanying Kerr for such an interview,
rather than having an obligation to attend, was a clear indication that the court viewed Wells,
subsequent to the entry of Kerr‟s guilty plea, as having completed his service as counsel and
returned to the status of standby counsel. See, e.g., Gonzalez v. United States, 722 F.3d 118,
134-35 (2d Cir. 2013) (noting, among the ways in which Gonzales‟s attorney‟s “performance
was deficient with regard to sentencing,” that counsel “did not accompany Gonzalez when
Gonzalez was interviewed by the Probation Department”). In addition, there is no
indication that Kerr waived his right to self-representation during the post-plea period
because during that time he made numerous pro se filings, refused to allow Wells to speak on
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United States v. Kerr
his behalf at sentencing, and submitted a post-judgment letter reiterating that Wells was
“standby counsel.” Cf. United States v. Barnes, 693 F.3d 261, 271 (2d Cir. 2012) (noting that
“even after the right to proceed pro se has been clearly and unequivocally asserted, the right
may be waived through conduct indicating that one is vacillating on the issue or has
abandoned one‟s request altogether” (internal quotation marks omitted)). The district court
also made clear its view that Kerr continued to represent himself by accepting and ruling on
his numerous pro se submissions. Tellingly, some of these filings requested the assignment of
new counsel, which the court denied without stating or otherwise indicating that Wells
remained Kerr‟s attorney. Finally, although Wells submitted a sentencing memorandum and
appeared with Kerr at sentencing, it is routine, and certainly not unusual, for standby counsel
to perform such essential tasks. See, e.g., United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.
1997) (standby counsel not elevated to full counsel when he “examined and cross-examined
witness, and gave the defense summation”). We therefore conclude that Kerr continued
representing himself after the entry of his plea and address only the first of Kerr‟s alternative
Sixth Amendment arguments—that the district court deprived him of his right to counsel
when it did not appoint an attorney to assist him with his second motion to withdraw his
plea.
This inquiry is complicated by the fact that Kerr‟s post-plea request for counsel came
after he waived his right to counsel before trial. While it is undisputed that the Sixth
Amendment protects a criminal defendant‟s right to the assistance of counsel “„at all critical
stages of the criminal process,‟” Marshall v. Rodgers, __ U.S. __, 133 S. Ct. 1446, 1449 (2013)
(quoting Iowa v. Tovar, 541 U.S. 77, 80-81 (2004)), it is also well settled “that a defendant . . .
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United States v. Kerr
has the right to „proceed without counsel when he voluntarily and intelligently elects to do
so,‟” Marshall, 133 S. Ct. at 1449 (quoting Faretta, 422 U.S. at 807); see also Forbes v. United
States, 574 F.3d 101, 106 (2d Cir. 2009) (“A motion to withdraw a guilty plea is a critical stage
of a criminal proceeding . . . .”); see generally United States v. Davis, 239 F.3d 283, 287 (2d Cir.
2001) (a defendant who wishes to withdraw his plea of guilty “may waive his . . . right to
counsel . . . and proceed pro se”). To resolve the tension that can exist between these two
principles when a defendant who elected to proceed pro se later demands an attorney, there is
broad consensus that, once waived, the right to counsel is no longer unqualified. See United
States v. Thompson, 587 F.3d 1165, 1175 (9th Cir. 2009); United States v. Leveto, 540 F.3d 200,
207 (3d Cir. 2008); United States v. Proctor, 166 F.3d 396, 403 & n.8 (1st Cir. 1999); United
States v. Reddeck, 22 F.3d 1504, 1510-11 (10th Cir. 1994); United States v. Taylor, 933 F.2d 307,
311 (5th Cir. 1991); United States v. West, 877 F.2d 281, 286 (4th Cir. 1989); United States v.
Solina, 733 F.2d 1208, 1211-12 (7th Cir. 1984); see also United States v. Brasch, 205 F.3d 1325(2d Cir. 1999) (table) (unpublished decision).
Although we have not definitively spoken on this precise issue, we have held that a
defendant‟s right to represent himself in the first place is not absolute. See Barnes, 693 F.3d
at 271-72. Among other qualifications placed on the exercise of that right, we have required
that the request to proceed pro se be “„unambiguous and unequivocal‟” so as to “„inhibit[] any
deliberate plot to manipulate the court by alternatively requesting, then waiving counsel.‟”
Id. at 271 (quoting Williams v. Bartlett, 44 F.3d 95, 100-01 (2d Cir. 1994)). In addition, the
request may be denied if the district court finds it to be “obstructionist” or “manipulative or
abusive in some other way.” Id. (internal quotation marks omitted). These concerns are
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United States v. Kerr
equally applicable to a situation in which a defendant, having invoked his right to proceed pro
se, later seeks the reappointment of counsel. Accordingly, we hold, in agreement with our
sister Circuits that have considered the issue, that once a defendant voluntarily and
intelligently waives his right to counsel and elects to proceed pro se, the decision whether to
grant or deny his “post-waiver request for counsel is well within the discretion of the district
court.” Leveto, 540 F.3d at 207 (citing cases).
Given the critical role that access to professional legal representation plays in our
criminal justice system, a district court‟s discretion to deny post-waiver requests for counsel
is necessarily circumscribed. Thus, it is manifestly improper for a court to deny such a
request on purely punitive grounds. See Menefield v. Borg, 881 F.2d 696, 700 (9th Cir. 1989)
(“We are certainly unwilling to deny counsel because of some conception that the
defendant‟s initial decision to exercise his Faretta right and represent himself at trial is a
choice cast in stone.”); see also Taylor, 933 F.2d at 311 (defendant must ordinarily be allowed
to “change his mind about whether he will represent himself”). In addition, a district court‟s
denial of such a request made after trial or before any meaningful trial proceedings have
begun may be subject to more searching scrutiny than the denial of a request made on the
eve (or in the midst) of trial, when assigning new counsel would inevitably disrupt the court‟s
schedule and impede the orderly administration of justice. See Leveto, 540 F.3d at 207; Proctor,
166 F.3d at 402; Solina, 733 F.2d at 1211-12; Menefield, 881 F.2d at 700-01. On the other
hand, a motion to withdraw a mid-trial plea of guilty—and to have a new trial—where the
defendant has elected to plead guilty after hearing the government‟s evidence, also portends
inefficiencies, to wit, duplications of effort on the part of the prosecution, the judge, and the
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United States v. Kerr
witnesses, and the need for a second set of citizens to serve as jurors. See, e.g., United States v.
Schmidt, 373 F.3d 100, 102-03 (2d Cir. 2004).
A district court “need not countenance abuse of the right to counsel or the right to
waive it,” Taylor, 933 F.2d at 311, and it is well within the court‟s discretion to deny a post-
waiver motion for new counsel when it is made in an effort to delay or disrupt the
proceedings, see id. (“A defendant is not entitled to choreograph special appearances by
counsel or repeatedly . . . alternate his position on counsel in order to delay his trial or
otherwise obstruct the orderly administration of justice.” (internal quotation marks and
citation omitted)); Leveto, 540 F.3d at 207 (same); Proctor, 166 F.3d at 402 (same). Although
we will generally require a district court faced with a post-waiver motion for new counsel to
inquire into the defendant‟s reasons for the request and fully explain on the record the
grounds for its ultimate decision, we will “not insist upon a formal inquiry or colloquy where
the rationales for the request and decision are clearly apparent on the record.” Leveto, 540
F.3d at 208.
With these principles in mind, we turn to the facts of Kerr‟s case and find that the
district court, having properly denied Kerr‟s first pro se motion to withdraw his plea, did not
abuse its discretion when it refused his post-waiver request for new counsel to help him file
a second.7 Acting pro se, Kerr filed his first motion to withdraw his plea days after it was
entered, asserting only that he wanted “the jury [to] find [him] guilty or not guilty.”
7As noted above, Kerr does not challenge on appeal the validity of his initial pretrial waiver
of his right to counsel. We therefore assume for purposes of this analysis that it was
knowingly and voluntarily made.
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United States v. Kerr
Appellant App‟x at 173. As the district court correctly determined in its April 26, 2010 order
denying the motion, this does not constitute a valid ground for withdrawal. See Fed. R.
Crim. P. 11(d)(2)(B) (defendant may withdraw his plea before sentencing if he “can show a
fair and just reason”); United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992)
(defendant‟s “change of heart” not a “sufficient reason to permit withdrawal of a plea”). In
addition, a careful review of the plea colloquy clearly indicates that the district court
complied with the requirements of Rule 11 and fully ensured that Kerr‟s plea was knowing,
voluntary, and supported by a factual basis. See Fed. R. Crim. P. 11(b). The district court
therefore properly denied Kerr‟s first withdrawal motion. See Gonzalez, 970 F.2d at 1100.
Thus, when, in mid-May 2010, Kerr filed his post-waiver motion for the appointment
of new counsel, the district court was confronted with the following facts: (1) Kerr
effectively fired three attorneys before electing to proceed pro se at trial with a fourth as
standby counsel; (2) he pled guilty with the assistance of counsel midway through trial and
then resumed acting as his own attorney days later when he filed his first meritless pro se
motion to withdraw his plea; and (3) less than one month after the denial of that motion,
Kerr moved for the appointment of a fifth attorney to assist him with a second motion to
withdraw his plea. Considering these facts, we have little trouble concluding that the district
court acted within its discretion when it denied the request. While a first motion to
withdraw a plea is a “critical stage of the proceeding,” see Forbes, 574 F.3d at 106, successive
motions in the form presented here, seeking the same relief yet articulating no specific
factual details which would support that relief, do not rise to that level. A defendant has no
right to whipsaw the district court and delay the proceedings by continually alternating his
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United States v. Kerr
position on counsel, especially when his post-waiver request for counsel arises in connection
with a motion the court has already denied. See Taylor, 933 F.2d at 311; cf. Barnes, 693 F.3d at
271. Moreover, although it would have been preferable for the district court to explain its
reasons for denying the request, see Leveto, 540 F.3d at 207-08, we find no abuse of discretion
in this instance because the reasons for the court‟s decision—Kerr‟s alternating positions
with respect to representation and his attempt to delay the proceedings—are “clearly
apparent on the record,” id. at 208.
III. Sentencing Issues
Kerr challenges the procedural reasonableness of his sentence on three grounds,
arguing that the district court: (1) improperly held him accountable for the combined weight
of all 7,000 MDMA pills because he did not know about the 3,000 pills hidden in his
vehicle‟s rear interior paneling; (2) failed to find him eligible for a two-level minor role
adjustment pursuant to U.S.S.G. § 3B1.2; and (3) did not articulate an adequate basis for its
sentence. We review sentences for procedural and substantive reasonableness using a
“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).
Procedural error occurs when, for example, the district court improperly calculates the
applicable Guidelines range, fails to consider the sentencing factors articulated in 18 U.S.C.
§ 3553(a), or neglects to explain the reasons for its chosen sentence. See United States v.
Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).
Contrary to Kerr‟s first argument, the district court was not required to find that he
“knowingly” possessed all 7,000 MDMA pills before holding him accountable for them all.
We rejected an identical challenge in United States v. de Velasquez, where a defendant
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United States v. Kerr
convicted of the importation of heroin argued that because she had been unaware of the
heroin secreted in her shoes, she could not be held accountable for that amount. 28 F.3d 2,
4-6 (2d Cir. 1994). As we stated in that case, “[t]here is no requirement under the Guidelines
that the defendant know or foresee the total quantity of drugs in his possession to be
sentenced for the full amount.” Id. at 5; see also U.S.S.G. § 1B1.3 cmt. n.2 (2010) (explaining
that “the defendant is accountable for all quantities of contraband with which he was directly
involved” and that the reasonable foreseeability requirement “does not apply to conduct that
the defendant personally undertakes”).
Kerr next argues that he was entitled to a minor role adjustment because he “was no
more than a onetime drug mule.” Appellant Br. at 56. “To the extent that [a defendant]
claims that one who is simply a courier is automatically entitled to a [U.S.S.G.] § 3B1.2 minor
role adjustment based on that status, we reject his argument.” United States v. Garcia, 920
F.2d 153, 155 (2d Cir. 1990) (per curiam). Instead, it was Kerr‟s burden to establish that his
conduct was minor “as compared to the average participant” in the crime of conviction.
United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999); see also Garcia, 920 F.2d at 156 (“It is
the defendant‟s burden to establish by a preponderance of the evidence that his level of
culpability entitles him to a minor role reduction.”). This inquiry is highly fact-intensive and,
in cases involving drug couriers, necessarily depends on “such factors as the nature of the
defendant‟s relationship to other participants, the importance of the defendant‟s actions to
the success of the venture, and the defendant‟s awareness of the nature and scope of the
criminal enterprise.” Garcia, 920 F.2d at 155. We have no difficulty concluding that Kerr
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United States v. Kerr
did not meet this burden as he failed to present any evidence or arguments addressing these
factors.
Finally, Kerr maintains that the district court rejected his sentencing arguments
without adequate explanation. As we have repeatedly reiterated, “we never have required a
District Court to make specific responses to points argued by counsel in connection with
sentencing.” United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010). Instead, the court is
required to “satisfy us only that it has considered the party‟s arguments and has articulated a
reasonable basis for exercising its decision-making authority.” Id. (citing Cavera, 550 F.3d at
193). Here, the district court did just that: it “reviewed and considered all the pertinent
information including . . . submissions by counsel,” Appellant App‟x at 143-44, and
explained that it found “a sentence at the low end of the Guidelines range . . . fair, just, and
sufficient but not greater than that which is necessary to comply with the goals of
sentencing,” id. at 145. We also note that the district court made clear its desire to further
consider and likely credit Kerr‟s sentencing arguments, but stated that Kerr‟s refusal to meet
with the Probation Department deprived it of the necessary information to do so. Kerr‟s
sentence was procedurally sound.
IV. Pro Se Brief
Kerr argues in his pro se brief that the district court improperly denied his motion to
withdraw his guilty plea and challenges various aspects of his prosecution and trial. See Pro
Se Br. at 9-20. As we concluded above, Kerr‟s guilty plea was knowing and voluntary, and
the district court did not abuse its discretion when it denied his motion to withdraw it.
Kerr‟s remaining pro se arguments—concerning alleged prosecutorial misconduct, discovery
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United States v. Kerr
improprieties, the denial of his motion to dismiss the indictment, and various trial errors—
are therefore barred by his valid guilty plea. See United States v. Lasaga, 328 F.3d 61, 63 (2d
Cir. 2003) (“A defendant who pleads guilty unconditionally admits all elements of the formal
charge and, in the absence of court-approved reservation of issues for appeal, waives all
challenges to prosecution except those going to the court‟s jurisdiction.”).
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
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