United States v. Joshua Conlan , 786 F.3d 380 ( 2015 )

Case: 13-50842 Document: 00513042987 Page: 1 Date Filed: 05/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50842 FILED
May 14, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JOSHUA CONLAN, Also Known as Joco,
Defendant–Appellant.
Appeals from the United States District Court
for the Western District of Texas
Before SMITH, PRADO, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
A jury found Joshua Conlan guilty of stalking a television news reporter
(“JMP”) and her husband (“JP”) in violation of 18 U.S.C. § 2261A. He raises
ten issues on appeal, involving sufficiency of the evidence; unconstitutional
vagueness; double jeopardy; suppression of evidence; withdrawal and substi-
tution of counsel; denial of self-representation; juror misconduct; speedy trial
violations; and sentencing. We affirm.
I.
Conlan and JMP dated as teenagers but had no further contact until
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JMP appeared on national news networks several years later. Conlan sent her
a flirtatious Facebook message; she responded politely but made it plain that
she was not interested in him romantically. He then sent a large bouquet of
flowers to her workplace with a note reading, “The next time our paths cross,
I will not know hesitation.” Worried about her safety, JMP sought help from
local police and, at an officer’s suggestion, sent Conlan an email explaining
that she did not want any communication from him.
Conlan then began an escalating, year-long campaign of email, text-
message, social-media, telephonic, and face-to-face contact with JMP, her fam-
ily, work colleagues, and church members. Many of the messages were hateful,
threatening, and graphically sexual. JMP repeatedly asked Conlan’s brothers
to intervene. That effort was unsuccessful, and Conlan accused JMP and JP
of violating his privacy, “not something [he would] take lightly,” and if she did
not “straighten out this s--t in person,” he would “be forced to return the favor.”
He told her that “things would get worse” and asked her to “send [him] a pretty
picture once a week, that would keep [him] under control . . . .” He sent a
package to her workplace containing a cellphone that had lip marks on the
screen. He also sent her a single-line email reciting her home address and
repeatedly told her to kill herself.
The messages did not stop after Detective Michael King told Conlan that
his communications were unwelcome and that he would be arrested if he came
to Austin, Texas, where JMP and JP resided. Instead, Conlan sent JMP a
message that read, “You know what? I can come to you. Can Austin’s finest
brave that?”
Conlan also sent messages to JP, a professional musician. He com-
mented, on a blog post about JMP’s work, that he could not “wait for chicken
head hunting in Texas” and that he was “[g]oing to be in every little bitch music
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shop every weekend every night until I find the right chicken head.” He sent
JP a Facebook message asking, “Are you scared, princess?” and messages to
JMP stating, “I was thinking about beating the s--t out of princess” and,
“Doesn’t princess want a face-to-face confrontation?” Conlan disparaged JMP
in emails to the leadership of her church and went to her parents’ house asking
to see her.
Shortly thereafter, Conlan drove from Missouri to JMP and JP’s house.
As JP was driving from their residence, he saw a white vehicle with Missouri
plates moving slowly and recognized Conlan as the driver. Conlan went
around the block and passed JP a second time. Fearing that that he would be
attacked, JP called the police and went to a police substation. Conlan was
arrested at a nearby motel pursuant to a warrant; in his motel room, police
found cellphones that had been used to call JMP’s workplace and obtain
directions to her house, and a laptop that contained Internet searches for her
name. A loaded handgun and riot stick were found in Conlan’s vehicle.
II.
Conlan was indicted on three counts of interstate stalking in violation of
18 U.S.C. § 2261A. The district court found him incompetent to stand trial and
ordered him committed to the custody of the Attorney General. 1 The court
later found him competent, and a grand jury returned a superseding indict-
ment with the same three counts: violations of § 2261A(2) as to JMP (Count
One) and JP (Count Three), and § 2261A(1) (Count Two). A jury found Conlan
guilty of all charges, and he was sentenced to ninety-six months of imprison-
ment and three years of supervised release.
1Conlan appealed his detention, and we dismissed the case as moot. See United States
v. Conlan, 520 F. App’x 246, 247 (5th Cir. 2013) (per curiam) (finding that Conlan was
detained under an unchallenged detention order).
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III.
Conlan challenges the sufficiency of evidence from which a jury could
conclude that he acted “with the intent to kill, injure, harass, intimidate, or
place under surveillance with the intent to kill, injure, harass, or intimidate”
JMP, as required by § 2261A. We “review[] the record to determine whether,
considering the evidence and all reasonable inferences in the light most favor-
able to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” 2
Intent is often established by inference from circumstantial evidence.
See United States v. Pruett, 681 F.3d 232, 239 (5th Cir. 2012) (per curiam). The
increasingly ominous tone and content of his messages reveal Conlan’s desire
to subject JMP to unwanted sexual acts, for her to die, and for a violent con-
frontation with JP and police. Instead of desisting when told to do so by JMP,
his family, and the police, Conlan escalated his behavior by contacting JMP’s
colleagues, church leaders, and father, culminating in an interstate trip to her
house armed with a handgun and riot stick. 3 There was sufficient evidence for
a rational jury to conclude beyond a reasonable doubt that Conlan acted with
the requisite intent. 4
IV.
Conlan maintains that 18 U.S.C. § 2261A is unconstitutionally vague
because neither “harass” nor “intimidate” is defined. We review that “chal-
lenge for plain error because he did not present [it] to the district court.”
2United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir.) (en banc), cert. denied,
135 S. Ct. 170 (2014).
3Although Conlan maintains that the gun and riot stick should have been suppressed,
that evidence was properly before the jury, as explained infra.
4Conlan’s sole authority, United States v. Infante, 782 F. Supp. 2d 815 (D. Ariz. 2010),
involved significantly more benign facts.
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United States v. Howard, 766 F.3d 414, 428 (5th Cir. 2014). A penal statute is
unconstitutionally vague “if the conduct it prohibits is not clearly defined.” Id.
“To satisfy constitutional due process, ‘a penal statute [must] define the crim-
inal offense [1] with sufficient definiteness that ordinary people can under-
stand what conduct is prohibited and [2] in a manner that does not encourage
arbitrary and discriminatory enforcement.’” 5 As every court of appeals to con-
sider the question has held, § 2261A satisfies both of those requirements. 6
The statute need not define “harass” and “intimidate” because they are
not obscure words and are readily understandable by most people. 7 Any vague-
ness concerns are further alleviated by the list of easily understood terms sur-
rounding “harass” and “intimidate”—“kill, injure . . . or cause substantial
emotional distress”—and by the statute’s scienter requirement, which narrows
its scope and mitigates arbitrary enforcement. 8
Conlan’s fear that § 2261A criminalizes “otherwise legal actions—such
5Howard, 766 F.3d at 428 (alterations in original) (quoting Skilling v. United States,
561 U.S. 358, 403 (2010)).
6 See United States v. Osinger, 753 F.3d 939, 944–45 (9th Cir. 2014); United States v.
Shrader, 675 F.3d 300, 309–12 (4th Cir. 2012); United States v. Bowker, 372 F.3d 365, 380–
83 (6th Cir. 2004), vacated, 543 U.S. 1182, reinstated in relevant part, 125 F. App’x 701 (6th
Cir. 2005); see also United States v. Sayer, 748 F.3d 425, 433–36 (1st Cir. 2014) (rejecting a
facial and as-applied First Amendment challenge to § 2261A(2)(A)); United States v. Petrovic,
701 F.3d 849, 854–56 (8th Cir. 2012) (same).
7See Shrader, 675 F.3d at 310 (“Most people would readily understand the former to
mean ‘to disturb persistently; torment, as with troubles or cares; bother continually; pester;
persecute,’ and the latter to mean ‘to make timid; fill with fear.’” (quoting Random House
Dictionary of the English Language 870, 1000 (2d ed. 1987))); Bowker, 372 F.3d at 381 (“[T]he
meaning of [‘harass’ and ‘intimidate’] ‘can be ascertained fairly by reference to judicial
decisions, common law, dictionaries, and the words themselves because they possess a com-
mon and generally accepted meaning.’” (quoting Staley v. Jones, 239 F.3d 769, 791–92 (6th
Cir. 2001))).
8 See Shrader, 675 F.3d at 311; Osinger, 753 F.3d at 945–47; see also Howard, 766
F.3d at 429–30 (rejecting a vagueness challenge to a criminal statute and recognizing that a
scienter requirement narrows its scope and limits arbitrary enforcement).
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as sending a letter or traveling from one state to another . . . even if some of
those actions were undertaken without any ill intent” is unfounded. As a pre-
liminary matter, he cannot rely on hypothetical vagueness arguments because
§ 2261A “clearly proscribed” his year-long campaign of escalating sexual
innuendo, threats of physical violence, and unwanted contacts with JMP’s
family, friends, and colleagues, culminating in an interstate trip to his victims’
house. 9 Furthermore, the statute defines “course of conduct” as “a pattern of
conduct composed of 2 or more acts, evidencing a continuity of purpose.”
18 U.S.C. § 2266(2). That makes clear that the statute’s intent requirement
“modifies the cumulative course of conduct as a whole,” Shrader, 675 F.3d
at 311, and “avoids sweeping up innocent acts,” id. at 312.
Moreover, unlike the restriction on wearing “a mask with the intent to
intimidate, threaten, abuse or harass any other person” at issue in Church of
the American Knights of the Ku Klux Klan v. City of Erie, 99 F. Supp. 2d 583,
591 (W.D. Pa. 2000) (internal quotation marks omitted), on which Conlan
relies, § 2261A does not criminalize constitutionally protected free expression.
To violate the statute one must both intend to cause victims serious harm and
in fact cause a reasonable fear of death or serious bodily injury. See Shrader,
675 F.3d at 310. That combination of “intent and effect” distinguishes § 2261A
from “the ordinance in Ku Klux Klan, which did not require that the harass-
ment or intimidation result in any particular type of reaction in the audience.”
9 See United States v. McRae, 702 F.3d 806, 837 (5th Cir. 2012) (“A person whose
conduct is clearly proscribed by a statute cannot . . . complain that the law is vague as applied
to the conduct of others.”); see also Osinger, 753 F.3d at 945 (concluding that defendant’s
“unrelenting harassment and intimidation . . . was not based on conduct that he ‘could not
have known was illegal’” (quoting United States v. Kilbride, 584 F.3d 1240, 1256 (9th Cir.
2009))); Sayer, 748 F.3d at 436 n.10; Shrader, 675 F.3d at 312; Bowker, 372 F.3d at 383
(deciding that defendant’s “campaign of threatening and harassing conduct” toward news
reporter, including after FBI agent warned him to stop, “clearly fell within the statute’s
prohibition”).
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Bowker, 372 F.3d at 382. Conlan has not shown, on plain-error review, that
§ 2261A is unconstitutionally vague.
V.
Conlan contends that his sentences on Counts One and Three violate the
Double Jeopardy Clause because “the alleged course of conduct [for both
offenses is] identical.” “We review defendant’s contention of multiplicitous
sentences, which involves an issue of double jeopardy, for plain error.” United
States v. Dixon, 273 F.3d 636, 642 (5th Cir. 2001). Sentences are multiplicitous
where a defendant “receive[s] more than one sentence for a single offense.” 10
The analysis begins by identifying the statute’s “unit of prosecution,” relying
in the first instance on the statutory language. See id. If the unit of prosecu-
tion is uncertain, “ambiguity should be resolved in favor of lenity.” Bell v.
United States, 349 U.S. 81, 83 (1955).
The plain language of § 2261A(2) “unambiguously contemplate[s] that
the unit of prosecution is the targeted individual, requiring that the defendant
act with intent towards a particular ‘person,’ that his actions produce the
requisite effect in ‘that person,’ and defining punishment [in § 2261(b)(1)–(3)]
in terms of the effect on ‘the victim.’” Shrader, 675 F.3d at 313–14. Citing this
court’s precedent, the Shrader panel found further support for its conclusion
because the Blockburger 11 test was not violated—the government needed to
“prove different intents to harm two victims to convict the defendant on the
two separate counts.” 12 Conlan’s analogies to other criminal statutes are
10Dixon, 273 F.3d at 641 (quoting United States v. Galvan, 949 F.2d 777, 781 (5th Cir.
1991) (internal quotation marks omitted)).
11 Blockburger v. United States, 284 U.S. 299, 304 (1932).
12 Shrader, 675 F.3d at 314 (citing United States v. Swaim, 757 F.2d 1530, 1536–37
(5th Cir. 1985)).
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unavailing because, unlike § 2261A(2), those statutes were ambiguous. 13 His
comparison to United States v. Lilly, 983 F.2d 300, 303 (1st Cir. 1992), is
equally unhelpful because that case involved a “unitary scheme” to defraud “a
single bank,” but Conlan intended to harass two different victims. Conlan has
not shown plain error in the imposition of separate sentences for Counts One
and Three.
VI.
Conlan avers that evidence recovered from his motel room and car should
have been suppressed. “When reviewing a . . . denial of a . . . motion to sup-
press, we accept as true the district court’s factual findings unless clearly
erroneous and we consider all questions of law de novo.” United States v.
McKinnon, 681 F.3d 203, 207 (5th Cir. 2012) (per curiam). “The evidence and
inferences therefrom are reviewed in the light most favorable to the [g]overn-
ment as the prevailing party.” Id. The government has the burden of proving
the validity of a warrantless search by a preponderance of the evidence. Id.
We may affirm the ruling on any ground supported by the record. United
States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).
A.
After JP contacted the police, a bulletin was issued stating that Conlan
was wanted on a harassment warrant; was potentially armed and mentally
unstable; and was seen driving a white Honda with Missouri plates near the
home of the victim, who had been placed in protective custody. Officers saw
Conlan’s vehicle at a motel, and they had a manager call him to the front desk,
13See id. (distinguishing cases cited by Conlan—Bell and Ladner v. United States, 358
U.S. 169 (1958)—because the lenity concerns animating those decisions were inapplicable to
§ 2261A(2), whose “statutory scheme” speaks “clearly and without ambiguity” (quoting Bell,
349 U.S. at 84) (internal quotation marks omitted)).
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where he was arrested. An officer then asked Conlan whether he wanted to
get anything from his room before being taken to the station. He answered
affirmatively, and officers accompanied him to the room and did a protective
sweep. At Conlan’s request, they retrieved his wallet. His laptop and two
cellphones, described as “on the bed” and “in plain view” by the officers, were
also taken.
The district court found that the laptop and cellphones were properly
seized under the plain-view doctrine, which allows for “a seizure if (1) the
officers lawfully entered the area where the items could be plainly viewed;
(2) the incriminating nature of the items was immediately apparent; and
(3) the officers had a lawful right of access to the items.” Waldrop, 404 F.3d at
368. Conlan maintains that the officers were not lawfully present because
“they created a sitution [sic] where [he] woud [sic] necessarily be without his
effects, and . . . basically forced [him] into requesting a return to his room.” He
does not elaborate on that argument, and the record does not support it. Had
the officers wanted access to his room they could have executed the arrest war-
rant there, and nothing suggests that Conlan was pressured into returning to
his room. Under Washington v. Chrisman, 455 U.S. 1, 7 (1982), it was permis-
sible for the officers to accompany Conlan to his room and seize evidence in
plain view. 14
Conlan urges that the second prong of the plain-view doctrine was not
satisfied because “phones and laptops are used everywhere,” and there was
“nothing inherently incriminating about a cellphone or a laptop in a hotel
room.” As a threshold matter, the governing standard demands not that items
14 Nothing in Chrisman suggests that it was improper for the officers to ask whether
Conlan wanted to get anything from his room, as distinguished from Conlan’s making the
inquiry. See United States v. Harness, 453 F.3d 752, 756 (6th Cir. 2006); United States v.
Garcia, 376 F.3d 648, 651 (7th Cir. 2004).
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be “inherently incriminating,” but that their incriminating nature be “imme-
diately apparent.” 15 “The incriminating nature of an item is ‘immediately
apparent’ if the officers have ‘probable cause’ to believe that the item is either
evidence of a crime or contraband.” 16 That standard was met because
Detective King, the lead investigator who instructed an officer to seize the
items, was aware of Conlan’s harassing electronic communications. 17
B.
The gun was found under a hat on the floor of the passenger’s side of
Conlan’s vehicle; the riot stick was found behind the driver’s seat. The court
denied the suppression motion on the ground that the vehicle could properly
have been impounded as an instrument of the crime and, “as a result of an
inventory search, [officers] would have found the weapon and the nightstick
regardless.” 18
“[T]he police may seize a car from a public place without a warrant when
they have probable cause to believe that the car itself is an instrument or
evidence of crime.” United States v. Cooper, 949 F.2d 737, 747 (5th Cir. 1991).
“[P]olice may make a warrantless inventory search of a legitimately seized car,
as long as the inventory search is conducted according to established
15 See Horton v. California, 496 U.S. 128, 136 (1990); Waldrop, 404 F.3d at 368–69.
16Waldrop, 404 F.3d at 369 (quoting United States v. Buchanan, 70 F.3d 818, 826 (5th
Cir. 1995)) (internal quotation marks omitted).
17 See id. at 369–70 (holding plain-view seizure appropriate when made in reliance on
collective knowledge of officers who are in communication).
18 The government claimed that the “community caretaker” exception applied because
officers testified that a motel manager had told them that Conlan was no longer was allowed
to stay at the motel and that his vehicle and belongings could not be left there, but the court
did not completely credit that testimony. See McKinnon, 681 F.3d at 208 (“In considering
whether this exception applies, our constitutional analysis hinges upon the reasonableness
of the ‘community caretaker’ impound viewed in the context of the facts and circumstances
encountered by the officer.”).
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procedures of the searching police department.” Id. at 748. 19 Conlan suggests
that exigent circumstances, in addition to probable cause, are required to seize
a vehicle from a motel parking lot. But his cited case, United States v. Sinis-
terra, 77 F.3d 101 (5th Cir. 1996), undermines that argument. In reversing an
order suppressing evidence found during a warrantless vehicle search in a mall
parking lot, Sinisterra reaffirmed precedent upholding “evidence seized in war-
rantless searches of vehicles which were legally parked in privately-owned
motel parking lots where there was probable cause to search but no showing of
exigent circumstances.” 20 Because a warrantless search of a car in a motel
parking lot does not require exigent circumstances, 21 and there was probable
cause that the vehicle was evidence and an instrumentality of a crime, 22 the
court properly denied suppression. 23
19Conlan has not challenged the inventory procedures used by the police. See Cooper,
949 F.2d at 748.
20 Sinisterra, 77 F.3d at 105 (citing United States v. Buchner, 7 F.3d 1149, 1150–51,
1154–55 (5th Cir. 1993); United States v. Ervin, 907 F.2d 1534, 1536–39 (5th Cir. 1990)); see
also Florida v. White, 526 U.S. 559, 565–66 (1999) (rejecting Fourth Amendment challenge
to warrantless seizure of car in employer’s parking lot, which the Court characterized as a
“public area”).
21There is some confusion as to when exactly the police discovered the weapons. Offi-
cer Magill testified that he found the weapons during an inventory search of the vehicle inci-
dent to impoundment, but the district court recalled that the officers made the discovery
while placing Conlan’s possessions in the car. Regardless of the timing, the existence of prob-
able cause to seize the vehicle as evidence and an instrumentality of the offense of interstate
stalking and subject it to an inventory search made the lawful discovery of the weapons
inevitable.
22Conlan did not merely drive across state lines in order to commit an offense; he used
the vehicle to drive past the victims’ house, an act that formed part of his course of criminal
conduct. In Cooper, 949 F.2d at 748, we cautioned that “absent probable cause to believe the
car contains contraband or evidence of crime, a warrantless seizure must be based on proba-
ble cause to believe the car itself is an instrument or evidence of crime, not merely that the
car’s owner committed a crime.” Nevertheless, we found sufficient evidence that a vehicle
used in a robbery qualified as “both evidence and an instrument of a crime,” id.—a conclusion
that applies here as well.
23 Any error would have been harmless because the jury would have found Conlan
guilty beyond a reasonable doubt even if the evidence had been suppressed. See United States
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VII.
Conlan asserts that the district court abused its discretion by granting
his attorney leave to withdraw ten days before trial. “The withdrawal of an
attorney in a given case is a ‘matter entrusted to the sound discretion of the
court and will be overturned on appeal only for an abuse of that discretion.’” 24
David Gonzalez was Conlan’s second appointed attorney, replacing an
Assistant Federal Public Defender who had moved to withdraw at Conlan’s
request. At the hearing on Gonzalez’s motion to withdraw, a federal agent
testified that Conlan had told a cooperating inmate that he was planning to
kill Gonzalez and flee to Belize. Gonzalez stated that Conlan’s threats could
“jeopardize [his] effectiveness as an advocate,” and, after consulting the State
Bar of Texas Ethics Hotline, he thought there was “an irreconcilable conflict.”
The court found that there was “a reasonable likelihood that Mr. Conlan
has threatened bodily harm against . . . Mr. Gonzalez,” which created “a per-
sonal conflict of interest” that “is incurable and may not be waived.” The court
granted the motion to withdraw ten days before trial and appointed Bradley
Urrutia to represent Conlan. Five days before trial, the court offered Urrutia
more time to prepare, but he declined, stating that he was “prepared to go for-
ward to trial as scheduled.”
Conlan concludes, without any analysis, that the court abused its discre-
tion because “there was no conflict of interest or irreconcilable conflict,”
v. Willingham, 310 F.3d 367, 372–73 (5th Cir. 2002). His communications were proven
through testimony and JMP’s copious phone and email records; and his intent was proven
from the content of those communications and his contacts with the victims, despite warnings
to stop. Furthermore, the victims never saw the gun or riot stick, so the weapons had little
bearing on the reasonableness of their fear.
24In re Wynn, 889 F.2d 644, 646 (5th Cir. 1989) (quoting Streetman v. Lynaugh, 674
F. Supp. 229, 234 (E.D. Tex. 1987)).
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completely ignoring the court’s finding to the contrary. He also suggests that
the court did not consider whether withdrawal would delay the trial, yet the
court offered to grant Urrutia an extension multiple times. Despite his conclu-
sional statement that he was adversely affected by the withdrawal, Conlan
does not explain how Urrutia’s performance was deficient. It was not an abuse
of discretion to grant Gonzalez’s motion to withdraw.
VIII.
Conlan avers that the district court erred by denying his requests for
self-representation and to substitute appointed counsel. “We review de novo
the constitutional permissibility of [a defendant’s] attempt to represent him-
self . . . .” United States v. Cano, 519 F.3d 512, 515 (5th Cir. 2008). A “trial
court’s refusal to appoint substitute counsel is reviewed for an abuse of discre-
tion.” United States v. Simpson, 645 F.3d 300, 307 (5th Cir. 2011).
A.
On the first day of trial, Conlan declared that he would like to represent
himself on the ground that Urrutia was unprepared and that Conlan had sent
the court a letter to that effect. On the second day of trial, the court received
the letter, which stated that Conlan wanted new counsel, and “in the mean-
time,” he would “like to assume self-representation.” The court denied both
motions after finding that the requests did not represent a “clear and unequivo-
cal” desire to represent himself but instead were “an attempt to manipulate
this Court and to delay this case at the last minute and to attempt to . . . file
additional motions that . . . no attorney would file for [him].”
Although defendants have a constitutional right to self-representation,
the invocation of that right must be “clear[] and unequivocal[].” Faretta v. Cal-
ifornia, 422 U.S. 806, 835 (1975). A general expression of dissatisfaction with
an attorney should not be construed as “an invocation of the Faretta right to
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represent oneself, especially when made on the morning of trial,” 25 and “a
defendant’s request to represent himself at trial may be rejected if it is
intended to cause delay or some tactical advantage.” 26
Conlan contends that his numerous requests to replace various
appointed counsel were “the functional equivalent” of a clear and unequivocal
invocation of his right to self-representation. But those motions indicate that
Conlan actually wanted counsel, just counsel that would follow his every
order. 27 Furthermore, in his letter, Conlan requested only temporary self-
representation until new counsel was appointed, suggesting that he did not
clearly and unequivocally wish to represent himself. 28 The court also had rea-
son to believe that Conlan was just trying to delay: (1) the request was made
on the morning of trial, and (2) in a hearing five days earlier, Conlan said that
he wanted to file more pretrial motions, notwithstanding that the deadline had
passed, and the court had concluded that “every motion that legitimately could
be filed in this case” had already been submitted. The court did not err by
concluding that Conlan had not clearly and unequivocally invoked his right to
self-representation.
B.
“The Sixth Amendment guarantees the right to counsel, but ‘indigent
25 Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir. 1983).
26 United States v. Vernier, 381 F. App’x 325, 328 (5th Cir. 2010) (per curiam) (citing
United States v. Chapman, 553 F.2d 886, 895 (5th Cir. 1977) (stating that it was error to deny
a motion for self-representation as untimely because the right was asserted “before the jury
had been empaneled, and there [was] no suggestion that he sought to delay or disrupt the
trial”)).
The district court found that Conlan wanted a lawyer who “works under [his]
27
thumb” and files the motions he wants “regardless of how frivolous.”
Cf. Cano, 519 F.3d at 516 (finding Faretta satisfied by a motion in which the defen-
28
dant asked to “relieve or dismiss his counsel” and “invoke[d] his Constitutional Right to Self-
Representation as to the matters before the court”).
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defendants have no right to appointed counsel of their choice.’” 29 “The court is
constitutionally required to provide substitute counsel only if there is a sub-
stantial conflict or problem affecting the ability to represent the defendant—‘a
conflict of interest, a complete breakdown in communication or an irreconcila-
ble conflict which led to an apparently unjust verdict.’” 30
At no point does Conlan argue that there was a conflict or breakdown in
communication between himself and Urrutia. He states in conclusional fash-
ion that Urrutia was not prepared for trial, yet he fails to identify any argu-
ments that Urrutia could have made with additional time. Furthermore, the
district court specifically found that Urrutia was “capable and ready to pro-
ceed,” and Urrutia declined the court’s offer to delay the trial. The court also
found that Conlan’s motion was an “attempt to manipulate” the court and
delay the case. Conlan has not shown that the court abused its discretion in
declining his last-minute request to appoint a fourth lawyer.
IX.
Conlan maintains that the district court abused its discretion by denying
his request for a mistrial on the basis of jury deadlock or juror misconduct. The
jury received the case and deliberated for two hours before returning the next
morning. Shortly thereafter, the court received a note stating that one of the
jurors was disregarding the court’s instructions to base deliberations on the
evidence. The court reminded the jurors of their oaths and the instructions,
but approximately forty-five minutes later it received another note indicating
that a juror wanted to speak with the judge. The juror stated that the jury had
29 United States v. Mitchell, 709 F.3d 436, 441 (5th Cir. 2013) (quoting United States
v. Fields, 483 F.3d 313, 350 (5th Cir. 2007)).
30Id. at 441–42 (quoting United States v. Romero–Trejo, 476 F. App’x 790, 791 (5th
Cir. 2012) (per curiam)).
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possibly “reached an impasse,” explaining that, although she believed she was
following the court’s instructions and considering only the evidence presented
at trial, other jurors thought she was “out of order.” Conlan moved for a
mistrial, but the court denied that motion as premature.
To determine whether the juror was disregarding the court’s instruc-
tions, it interviewed the other jurors individually. Then the court again sum-
moned the juror at issue; she professed to understand her duty to reach a ver-
dict based on the evidence in accordance with the instructions and denied that
she was trying to avoid jury service. The court permitted her to return to delib-
erations, and the jury returned a guilty verdict two hours later.
“The decision to declare a mistrial is left to the sound discretion of the
judge, but the power ought to be used with the greatest caution, under urgent
circumstances, and for very plain and obvious causes.” 31 “[B]ased on its unique
perspective at the scene,” the district court “is in a far superior position than
[we are] to appropriately consider allegations of juror misconduct, both during
trial and during deliberations.” 32 The court was well within its discretion to
deny Conlan’s motion; it was not compelled to find a jury deadlock when there
had been less than four hours of deliberation over two days, and only one juror
said that “[p]ossibly we’ve reached an impasse.” 33 Likewise, it was appropriate
to reinstruct the jury, interview the jurors, and upon learning that the juror
believed she could follow the instructions, send her back to deliberate. See
31Renico v. Lett, 559 U.S. 766, 774 (2010) (quoting United States v. Perez, 22 U.S.
(9 Wheat.) 579, 580 (1824)) (internal quotation marks omitted).
32 United States v. Ebron, 683 F.3d 105, 126 (5th Cir. 2012) (second alteration in
original) (quoting United States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006)) (internal quotation
marks omitted).
33 Cf. United States v. Medrano, 836 F.2d 861, 865 (5th Cir. 1988) (reasoning that
mistrial was not improper where the jury sent three notes in twelve hours over two days,
with the final note stating that the deadlock could not be broken).
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Ebron, 683 F.3d at 128–29.
X.
Conlan asserts that the district court erred by denying his motion to dis-
miss the indictment on speedy-trial grounds. Although Conlan submitted a
second opening brief, “[w]e look to an appellant’s initial brief to determine the
adequately asserted bases for relief.” 34 Likewise, we do not consider the new
arguments raised in the corrected brief. 35 The district court’s legal conclusions
are reviewed de novo, its factual findings for clear error. United States v. Hale,
685 F.3d 522, 534 (5th Cir. 2012) (per curiam).
The Speedy Trial Act (“STA”) requires a trial within 70 days after the
indictment, 18 U.S.C. §§ 3161(c)(1), 3162(a)(2), but it excludes various delays
arising from pretrial proceedings. 36 Conlan was indicted on August 16, 2011,
and the speedy-trial clock stopped 12 days later when the government moved
for a competency determination. 37 The court ordered Conlan examined at a
federal medical center on September 21, and he was transported there on
November 1. Save for a 10-day grace period, Conlan assumes that the entire
34United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (quoting Knatt v. Hosp.
Serv. Dist. No. 1 of E. Baton Rouge Parish, 327 F. App’x 472, 483 (5th Cir. 2009)).
35 Although he was instructed “not [to] raise new issues or new arguments” in his
second brief, Conlan’s counsel claimed that almost nine months of additional time was rele-
vant to the speedy trial issue.
36 Of relevance here are exclusions for delays resulting from “any proceeding, includ-
ing any examinations, to determine the [defendant’s] mental competency,” § 3161(h)(1)(A);
“any interlocutory appeal,” § 3161(h)(1)(C); “any pretrial motion,” § 3161(h)(1)(D); “the fact
that the defendant is mentally incompetent . . . to stand trial,” § 3161(h)(4); and any contin-
uances granted when the court “find[s] that the ends of justice served by [the continuance]
outweigh the best interest of the public and the defendant in a speedy trial,” § 3161(h)(7)(A).
Although “delay resulting from transportation of any defendant . . . to and from places of
examination or hospitalization” is excludable, “any time consumed in excess of ten days from
the date an order . . . directing such transportation, and the defendant’s arrival at the destina-
tion shall be presumed to be unreasonable.” § 3161(h)(1)(F).
37 See § 3161(h)(1)(A); United States v. Stephens, 489 F.3d 647, 653 (5th Cir. 2007).
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time between those dates counts toward the speedy-trial clock, but any excess
time is only “presumed to be unreasonable.” § 3161(h)(1)(F) (emphasis added).
Although the district court found the presumption rebutted, 38 we need not
review that conclusion because there was no STA violation even if the entire
30-day period counts. Moreover, Conlan has failed to challenge the court’s
ends-of-justice findings, which cover this entire period, and therefore he cannot
show that they are clearly erroneous. 39
Conlan avers that there were 68 nonexcludable days between the
June 25 incompetency finding and his August 1 return to the medical facility. 40
Even if the clock would have restarted at the end of the 10-day grace period, 41
it never did so, because Conlan filed an interlocutory appeal on July 6, trig-
gering the § 3161(h)(1)(C) exclusion through this court’s June 2013 decision. 42
Conlan claims 51 nonexcludable days between the June 28, 2013, competency
determination and the August 19 trial date, but only nine of those are non-
excludable. The rest are excluded under § 3161(h)(1)(D) because Conlan filed
38The court had ordered a psychiatric examination from a federal facility—not just an
evaluation by a psychologist—and the delay was because of the unavailability of a psychiatric
bed.
39The first ends-of-justice finding, entered in September 2011, excluded all time from
the original October 3, 2011, trial date through the time that “Conlan’s mental competency
to stand trial is determined.” The second, made in June 2012, excluded “the period between
the time Conlan was taken into federal custody until the time that [his] mental condition is
so improved that th[e] trial may proceed . . . .”
40 There are fewer than 68 days between those dates.
41Compare United States v. Hernandez-Amparan, 600 F. Supp. 2d 839, 842–43 (W.D.
Tex. 2009) (holding that the ten-day period applies to the separate incompetency exclusion
under § 3161(h)(4)), with United States v. Lewis, 484 F. Supp. 2d 380, 390–91 (W.D. Pa. 2007)
(concluding that the ten-day period does not apply).
42Moreover, Conlan filed two motions that triggered the pending-motions exclusion
under § 3161(h)(1)(D): a December 7, 2012, motion to appoint new counsel, which the court
did not resolve until June 2013; and a February 4, 2013, motion to be housed in Houston,
which the court denied on March 18. Those exclusions also cover any days that Conlan claims
are nonexcludable from January 5 through February 7, 2013.
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a motion to dismiss on July 8 that required an evidentiary hearing on August 2
and oral argument on August 14, 43 and he filed a motion in limine on August
15 that the court did not resolve until the morning of trial. 44 Conlan’s STA
argument fails because any nonexcludable days do not exceed the allowable
number. 45
XI.
Conlan was sentenced to sixty months of imprisonment on Counts One
and Two, to be served concurrently, and thirty-six months on Count Three, to
be served consecutively. He maintains that the district court misinterpreted
U.S. Sentencing Guidelines (“U.S.S.G.”) § 5G1.2(d) by imposing the consecutive
sentence, but his premise is false; the court did not impose that sentence under
§ 5G1.2(d), but rather as an upward variance. Because Conlan did not make
this objection below, we review it for plain error. See United States v. Ron-
quillo, 508 F.3d 744, 748 (5th Cir. 2007).
Consecutive sentences can be used to achieve an above-guidelines sen-
tence, which is what occurred here. 46 In its Statement of Reasons, the court
43The court ruled on the motion on August 14. See United States v. Johnson, 29 F.3d
940, 942–43 (5th Cir. 1994) (“[I]f a motion requires a hearing, [the pretrial motion exclusion
applies to] the time between the filing of the motion and the hearing on that motion, even if
a delay between the motion and the hearing is unreasonable.”).
44Assuming the court took that motion under advisement on August 15, its ruling was
well within the 30-day window for a pretrial motion that does not require a hearing. See id.
45 Because of inadequate briefing, Conlan has waived any argument that his constitu-
tional right to a speedy trial was violated. Although he dedicates nine pages to the STA issue,
he mentions his constitutional right only in a concluding paragraph, stating that his “speedy
trial rights were violated both under the Sixth Amendment as well as the Speedy Trial Act.”
See Scroggins, 599 F.3d at 477; Adams v. Unione Mediterranea di Sicurta, 364 F.3d 646, 653
(5th Cir. 2004) (“Issues not raised or inadequately briefed on appeal are waived.”).
46 See Ronquillo, 508 F.3d at 749–52; United States v. Saldana, 427 F.3d 298, 309 n.41
(5th Cir. 2005) (“[A] district court has discretion under 18 U.S.C. § 3584 to depart upwardly
by running sentences consecutively, even when U.S.S.G. § 5G1.2 would otherwise mandate
that the sentences run concurrently.”); United States v. Candrick, 435 F. App’x 404, 406 (5th
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marked the box, “The court imposed a sentence outside the advisory sentencing
guideline system.” Leaving the “Departures Authorized by the Advisory Sen-
tencing Guidelines” section blank, the court marked the box for a sentence
“above the advisory guideline range,” under “Court Determination for Sentence
Outside the Advisory Guideline System,” and identified four supporting
§ 3553(a) factors. And in explaining its sentence, the court was explicit that it
had considered two guidelines ranges—the one in the Presentence Report and
the range applicable if Conlan had received acceptance-of-responsibility
credit—but opted instead for an above-guidelines sentence driven by the
§ 3553(a) factors. Conlan interprets the denial of the government’s motion for
a twelve-to-fifteen year “variance/departure” to mean that the court categori-
cally rejected any variance or departure and therefore could have entered
consecutive sentences only under § 5G1.2(d). 47 That position is untenable on
plain-error review in light of the clear evidence that the court imposed an
above-guidelines sentence after considering the § 3553(a) factors. 48
The judgments of conviction and sentence are AFFIRMED.
Cir. 2011) (per curiam).
Conlan concedes that the proper vehicle for imposing a higher sentence “was either
47
a departure or variance.” Other than claiming that the court misinterpreted § 5G1.2(d),
Conlan does not make any argument that the non-guidelines sentence was unreasonable.
48See United States v. Jacobs, 635 F.3d 778, 780 & n.1, 783 (5th Cir. 2011) (per curiam)
(treating sentence as variance where court called it a departure at sentencing but “clarified
in the Statement of Reasons that it was imposing a sentence outside” the guidelines range).
20