United States v. Williamson

FILED
United States Court of Appeals
Tenth Circuit
June 6, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3147
BRETT J. WILLIAMSON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 2:13-CR-20011-KHV)
Melody Brannon, Kansas Federal Public Defender, Topeka, Kansas, for
Appellant.
Carrie N. Capwell, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with her on the brief), Office of the United States Attorney,
Kansas City, Kansas, for Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.
TYMKOVICH, Chief Judge.
Brett Williamson was charged with and convicted of various child
pornography offenses. Prior to trial, it came to light that his defense counsel and
the prosecutor trying the case had a history together: they were divorced and
shared custody of their child. For that and numerous other reasons, Williamson
asked for new counsel, his third, but the district court denied his request. He
ultimately chose to proceed to trial without an attorney and was convicted and
sentenced to life in prison. Williamson now argues that the district court should
have inquired into his defense counsel’s potential personal conflict of interest to
determine if the relationship might have affected his right to a fair trial, and that
failure to do so requires automatic reversal.
We disagree, and decline to extend the automatic reversal rule from
Holloway v. Arkansas, 435 U.S. 475 (1978), beyond its traditional application in
multiple representation cases. And since Williamson has failed to make a
showing that his counsel was laboring under an actual conflict of interest, we
reject his conflict of interest argument based on his defense counsel’s personal
relationship with the prosecutor. We also reject Williamson’s alternative
arguments for new counsel: that his filing of a criminal complaint against his
counsel constituted an actual conflict of interest, and that Williamson
demonstrated a complete breakdown of communications between his attorney and
himself.
We also reject Williamson’s claim that the district court erred in allowing
him to conduct his trial and sentencing pro se, since he voluntarily, knowingly,
and intelligently waived his Sixth Amendment right to the assistance of counsel.
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Finally, we affirm the district court’s denial of Williamson’s motion to
suppress evidence recovered during the search of his Indiana home.
We therefore affirm the district court’s decision in its entirety.
I. Background
Williamson was charged with multiple counts of attempting to entice and
coerce a minor to both engage in sexually explicit conduct and to film the assault.
On these charges, he faced a potential sentence of life imprisonment.
Williamson was appointed a federal public defender from Kansas City,
Kansas, who asked to withdraw as counsel seven weeks before the scheduled trial
date. The district court granted that motion, continued the trial date, and
appointed Robin Fowler, a local private attorney, as defense counsel. In February
2014, three months before the rescheduled trial, Mr. Fowler also filed a motion to
withdraw as Williamson’s counsel, citing a “total breakdown of communication
between counsel and Mr. Williamson.” R., Vol. 1 at 109. In his motion, Mr.
Fowler stated that the breakdown was “so severe that it [was] irreconcilable” and
that it had led to a “complete lack of trust” between himself and Williamson. Id.During the hearing on his motion to withdraw, Mr. Fowler informed the
court that he had told Williamson, as he tells all of his clients, that he and the
Assistant United States Attorney assigned to the case, Kim Martin, were divorced
and have a child together. He stated, “[t]hat’s not an ethical dispute or an ethical
problem and things like that happen a lot in smaller towns but I still make it clear.
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I don’t know if that adds to [Williamson’s distrust of my advice] or not.” R., Vol.
2 at 10. The court denied Mr. Fowler’s motion to withdraw, finding the request
untimely because it was close to trial and the court had previously granted the
federal public defender’s request to withdraw close to trial. The court also found
that counsel had not shown a total breakdown in communication, any
disagreement appeared to be “strategic disagreement” over who should control the
case, and Williamson was “substantially and unreasonably” contributing to any
breakdown in communication. R., Vol. 2 at 54–56; 63–64.
Less than two weeks before trial, Williamson filed a pro se motion for new
counsel. After holding an expedited hearing on the motion, the district court
denied Williamson’s request, finding that if there was a conflict between
Williamson and Mr. Fowler, Williamson was substantially and unreasonably
contributing to the breakdown in communication, and the disagreements between
the two boiled down to a strategic disagreement about how the case should be
defended.
The court rescheduled the trial date, but approximately two weeks before
the rescheduled date, Williamson filed a 12-page letter with the district court
complaining further about his relationship with defense counsel. In the letter,
Williamson alleged that he no longer trusted his lawyer and—for the first
time—raised Mr. Fowler’s relationship with the prosecutor as a potential conflict
of interest in his case. The letter stated, “I have explained to many people that
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my appointed attorney is divorced from the attorney for the government and
everyone has agreed, inmate and guard alike, that this is a conflict of interest . . . .
Does the law allow me to be represented by such adversaries as friends or family
of the [prosecutor]? 1 I think the court has erred by appointing Mr. Fowler to me.”
R., Vol. 1 at 239; see also id. at 229 (“My court appointed attorney is Robin
Fowler, who is divorced from AUSA Kim Martin (the prosecutor assigned to my
case), [and] is purposely sabotaging my defense in motions and at
hearings . . . .”). The letter also stated that Williamson had filed criminal charges
against Mr. Fowler and was likely to file civil claims as well, and it questioned
whether Mr. Fowler could continue to represent Williamson while those charges
were pending. Williamson also added complaints about the district court’s
impartiality, alleging that the district court judge was also involved in the
conspiracy between Mr. Fowler and the prosecutor.
The district court construed the letter as a motion for new counsel and held
a hearing at which Mr. Fowler supported Williamson’s request for new counsel.
Neither the district court nor Williamson—when given the opportunity to speak
on the record—addressed the issue of Mr. Fowler’s relationship with the
prosecutor as a potential conflict of interest in the case. The district court again
1
The text of the record stated “friends or family of the victim,” but, in
context, the record makes clear that Williamson meant to say “friends or family of
the prosecutor.” Accordingly, we have substituted the term here and in the
analysis section for clarity. See R., Vol. 1 at 239.
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denied Williamson’s motion, concluding he had failed to show a complete
breakdown of communication with counsel, and—to the extent there were
disagreements with counsel—they were matters of strategic disagreement. The
district court also concluded Williamson had substantially and unreasonably
contributed to any communication problems with counsel by insisting that Mr.
Fowler raise what appeared to be frivolous issues.
Two days before trial, Williamson filed a pro se Motion to Relieve Counsel
and Continue Pro Se. The district court denied the motion, concluding
Williamson’s decision to proceed pro se was “a procedural ploy to obtain new
counsel,” for which Williamson “relie[d] on the flawed premise that his current
counsel is ineffective.” R., Vol. 1 at 267. On the morning of jury selection,
Williamson renewed his request to proceed pro se, and a different district court
judge presided over the proceedings. The court advised Williamson that if he
wanted to proceed pro se, he would be responsible for all aspects of the trial. The
court carefully reviewed the charges and statutory penalties with Williamson, and
strongly cautioned him against proceeding pro se. But Williamson insisted on
proceeding pro se anyway, and the court granted his motion.
Williamson then represented himself at his trial and sentencing. The jury
found him guilty on all counts, and the district court sentenced him to life in
prison.
II. Analysis
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Williamson alleges that the district court erred: (1) in denying his motion
for new counsel; (2) by allowing him to waive his right to counsel and proceed
pro se at trial and sentencing; and (3) in denying his motion to suppress evidence
recovered from a search of his residence. We address each argument in turn and,
finding jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s
decision in full.
A. Motion for New Counsel
Williamson challenges the district court’s denial of his motion for new
counsel based on irreconcilable conflicts. First, he claims the court should have
examined whether defense counsel, Mr. Fowler, had a conflict of interest
stemming from his ongoing co-parenting relationship with his former wife, the
Assistant United States Attorney prosecuting Williamson’s case. Alternatively,
Williamson argues that his filing of a criminal complaint against Mr. Fowler
created a conflict of interest between counsel’s self-interest and his duties to
represent his client. Lastly, he maintains that he established a complete
breakdown of communication with Mr. Fowler, and the court abused its discretion
in denying the motion on that basis.
1. Defense Counsel’s Conflict of Interest
Williamson first argues that Mr. Fowler had an irreconcilable conflict of
interest because of his former marriage to the prosecutor and their ongoing co-
parenting relationship. He claims this conflict of interest, along with the strained
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attorney-client relationship between Williamson and Mr. Fowler, created a high
risk of the denial of his right to counsel.
The Sixth Amendment’s guarantee of the right to counsel “includes the
right to representation that is free from conflicts of interest.” Gardner v. Galetka,
568 F.3d 862, 886 (10th Cir. 2009). A conflict of interest is “a division of
loyalties that affected counsel’s performance,” Mickens v. Taylor, 535 U.S. 162,
172 n.5 (2002), and demonstrating a conflict of interest is one way for a
defendant to show good cause to warrant substitution of counsel, United States v.
Porter, 405 F.3d 1136, 1140 (10th Cir. 2005).
This case requires us to harmonize a series of Supreme Court cases
addressing conflicts of interest in a variety of circumstances. A typical potential
conflict can arise from joint or multiple representation situations when more than
one codefendant is represented by the same attorney. 2 For example, one
defendant might be advantaged in accepting a plea offer or testifying against his
codefendant, but the second defendant could be disadvantaged if the first
defendant chooses to do so. Multiple representation conflicts may arise at any
2
Although courts sometimes use these terms interchangeably, the Sixth
Circuit explained the difference in McFarland v. Yukins: “joint and dual
representation refer to simultaneous representation occurring in the same
proceeding, while multiple representation refers to simultaneous representation in
separate proceedings.” 356 F.3d 688, 701 (6th Cir. 2004); see also Jalowiec v.
Bradshaw, 657 F.3d 293, 315 (6th Cir. 2011) (defining successive representation
as a situation “where defense counsel has previously represented a co-defendant
or trial witness,” while concurrent representation “occurs where a single attorney
simultaneously represents two or more codefendants”).
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point in the criminal process, from the plea bargaining stage to sentencing, even if
the codefendants’ interests initially appear to converge. Wayne R. LaFave, et. al,
3 Crim. Proc. § 11.9(a) (4th ed. 2016 update).
Other types of conflicts can arise from an attorney’s relationship with other
clients, witnesses, victims, or—as here—the prosecution. And although all of the
above situations give rise to a potential conflict of interest, that potential will
only be converted to an actual conflict of interest if, over the course of litigation,
the defendant’s interests actually clash with his attorney’s interests. See id. An
actual conflict of interest therefore means a “conflict that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.” Mickens,
535 U.S. at 171 (emphasis added). In other words, an actual conflict exists when
“counsel [is] forced to make choices advancing other interests to the detriment of
his client.” United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998).
An actual conflict can support an ineffective assistance of counsel claim
where the conflict prejudiced the defendant’s representation. See Strickland v.
Washington, 466 U.S. 668, 687–88, 694 (1984). Generally, a defendant must
demonstrate prejudice flowing from the conflict, but in some circumstances, a
court will presume prejudice when the conflict amounts to the complete denial of
counsel. See id. at 692; United States v. Cronic, 466 U.S. 648, 658–60 (1984).
So far, the Supreme Court has applied the “presumed prejudice” rule only
for conflicts of interest in multiple representation cases. Beginning with
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Holloway v. Arkansas, 435 U.S. 475 (1978), the Court established that whenever a
trial court improperly requires counsel to represent multiple codefendants over
counsel’s timely objection, reviewing courts will apply an “automatic reversal”
rule. Id. at 476–91. The Court explained that while “joint representation[] is not
per se violative of constitutional guarantees of effective assistance,” defendants
are entitled to representation free of a conflict of interest. Id. at 482. In sum, a
court has a “duty to inquire” into a potential joint representation conflict of
interest when defense counsel informs the court of the alleged conflict prior to
trial, and “whenever a trial court improperly requires joint representation over
timely objection reversal is automatic.” Id. at 488; see also LaFave, supra, at
§ 11.9(b).
Two years later, however, the Supreme Court declined to apply the
automatic reversal rule when the defendant did not raise the conflict of interest
prior to trial. In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Court distinguished
Holloway, noting that trial courts necessarily rely on the judgment of defense
counsel to bring these matters to their attention, and that counsel “is in the best
position professionally and ethically to determine when a conflict of interest
exists or will probably develop in the course of a trial.” Id. at 347. Therefore,
“[u]nless the trial court knows or reasonably should know that a particular
conflict exists, the court need not initiate an inquiry.” Id. (quoting Holloway, 435
U.S. at 485) (emphasis added). In other words, absent a credible indication of an
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actual conflict of interest before trial, a trial court’s duty to inquire is limited.
Prejudice will not be presumed, and the automatic reversal rule will not apply.
The most recent and important Supreme Court decision in this line of cases
is Mickens v. Taylor, 535 U.S. 162 (2002). In that case, the Court considered a
conflict of interest raised on habeas review. Mickens’s lead defense counsel had
been representing the juvenile victim on unrelated charges when he was allegedly
murdered by Mickens. The juvenile court judge who dismissed the pending
charges against the victim upon the victim’s death then appointed the same
defense counsel to represent Mickens on the murder charge. Counsel did not
disclose his prior representation, and Mickens only discovered the alleged conflict
when a clerk mistakenly produced the victim’s file to Mickens’s federal habeas
counsel.
The Court clarified and reaffirmed its previous holdings that a violation of
Holloway’s duty to inquire required automatic reversal. It also held that if the
defendant did not raise a timely objection to the conflict (as in Cuyler), the
defendant must prove that his attorney was laboring under an actual conflict of
interest for the court to reverse his conviction. Id. at 170–74. The Court rejected
the defendant’s plea to extend the automatic reversal rule to cases in which the
trial court was unaware of a potential conflict, stating that such a position “makes
little policy sense” because a judge’s awareness of a potential conflict neither
makes it more likely that counsel’s performance will be affected by the conflict
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nor makes it more difficult for a reviewing court to determine if counsel’s
performance was negatively impacted by the conflict. Id. at 172–74. Nor does
the “vague, unspecified possibility of conflict” trigger a duty to inquire absent
special circumstances. In short, the Court concluded that “automatic reversal
[was not] an appropriate means of enforcing [Cuyler’s] mandate of inquiry.” Id.
at 173.
Read together, these cases establish a bifurcated standard for addressing
conflict of interest claims in the multiple representation context. First, if the
defendant objects to the alleged conflict prior to trial, prejudice is presumed if the
trial court failed to inquire into the nature and scope of the conflict and required
the defendant to proceed with the same attorney. In such instances, reversal is
automatic. See Holloway, 435 U.S. at 484; Selsor v. Kaiser, 81 F.3d 1492, 1500,
1504, 1506 (10th Cir. 1996) (applying Holloway and holding automatic reversal
was warranted because the district court did not inquire into the timely objection
to the multiple representation).
But if the defendant does not object to the alleged conflict at trial, he must
demonstrate on appeal that an actual conflict adversely affected his
representation. Only if the defendant’s demonstration is sufficient is prejudice
presumed. See Cuyler, 446 U.S. at 348–49; see also Alvarez, 137 F.3d at 1251.
In this context, the defendant has the burden to show specific facts to support his
allegation of an actual conflict adverse to his interests. See Gardner, 568 F.3d at
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886 (describing the test). If the defendant’s demonstration is insufficient, then
traditional Strickland review will apply: the defendant must establish his counsel
performed deficiently and that performance affected the outcome of trial.
Strickland, 466 U.S. at 687–88, 694.
The question remains whether Holloway’s duty to inquire (and automatic
reversal if the trial court fails to inquire) extends outside the multiple
representation context. Williamson argues it should include the potential conflict
he alleges here.
Williamson first raised the alleged conflict between Mr. Fowler and the
prosecutor, Ms. Martin, approximately two weeks prior to trial in a 12-page letter
to the court that recounted numerous reasons why Mr. Fowler should be removed
from the case and a new lawyer (his third) be appointed for trial. Among the
many conflicts he claimed to have with Mr. Fowler, Williamson mentioned Mr.
Fowler’s marriage:
I have explained to many people that my appointed
attorney is divorced from the attorney for the
government and everyone has agreed, inmate and guard
alike, that this is a conflict of interest . . . . Does the law
allow me to be represented by such adversaries as
friends or family of the [prosecutor]? I think the court
has erred by appointing Mr. Fowler to me.
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R., Vol. 1 at 239; see also id. at 229 (“My court appointed attorney is Robin
Fowler, who is divorced from AUSA Martin (the prosecutor assigned to my case),
[and] is purposely sabotaging my defense in motions and at hearings . . . .”).
In his brief, Williamson elaborated further, stating that the former marriage of his
defense counsel and the prosecutor
gave reason for [Mr. Fowler] to be less than fully and
zealously adversarial, lest it damage or diminish his
relationship with the mother of his child. An erstwhile
marriage may carry continuing obligations, familial or
financial or social. There may be lingering loyalties or
resentments. Co-parenting a child is an ongoing
relationship in which amicability is a laudable and
common objective. This personal interest, like joint
representation, could reasonably have been perceived as
influencing counsel’s judgment or dividing counsel’s
loyalty.
Aplt. Br. at 18. Since Williamson raised the issue before trial, he contends the
district court had a duty to inquire into and dispel any questions of divided
loyalty.
Williamson’s argument is foreclosed by Mickens. As we noted above, the
Supreme Court emphasized that its cases did not “establish, or indeed even
support” an “expansive application” of the automatic reversal rule. The Court
explained that Holloway “stressed the high probability of prejudice arising from
multiple concurrent representation, and the difficulty of proving that prejudice.”
And the Court noted that the purpose of those cases—which are exceptions from
the ordinary requirement that a defendant show prejudice—was “to apply needed
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prophylaxis in situations where [ordinary judicial review under the ineffective
assistance of counsel standards of Strickland] itself is evidently inadequate to
assure vindication of the defendant’s Sixth Amendment right to counsel.”
Mickens, 535 U.S. at 175–76. The Court illustrated this point by referring to
several alleged conflicts that the circuit courts had resolved under Cuyler when,
the Court hinted, Strickland was likely the more appropriate standard. Id. at
174–75. One of those conflicts was, notably, defense counsel’s “romantic
entanglement with the prosecutor,” but the Court also listed several other alleged
conflicts, including “counsel’s personal or financial interests” in a book deal
about the client’s case; counsel’s future “job with the prosecutor’s office”;
counsel’s teaching of classes to IRS auditors on the potential signs of criminal
activity during the course of his representation of defendant; and counsel’s “fear
of antagonizing the trial judge.” Id. 3 In other words, since the Mickens Court
3
Although the Mickens Court listed these conflicts as examples of circuit
courts improperly applying Cuyler “unblinkingly,” the Court created further
confusion by resting the opinion on the assumption that the case was properly
decided under Cuyler in the lower courts. So as to whether Cuyler or the more
difficult Strickland review should apply to issues beyond prototypical multiple
representation—such as successive representation, the issue in Mickens—was “as
far as the jurisprudence of this Court is concerned, an open question.” Mickens,
535 U.S. at 174–76. Thus, post-Mickens, the circuit courts are divided on how to
interpret the case. See Smith v. Hofbauer, 312 F.3d 809, 817 (6th Cir. 2002)
(quoting Mickens, 535 U.S. at 176); see also Quince v. Crosby, 360 F.3d 1259,
1263 n.4 (11th Cir. 2004) (same). Some circuit courts have treated the Mickens
Court’s statements as dicta and have chosen to expand Cuyler outside the multiple
representation context, while others have heeded the Court’s caution and have
either applied Strickland or declined to weigh in on the issue. Compare Earp v.
(continued...)
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questioned whether Cuyler was even the appropriate means of reviewing these
alleged conflicts—as opposed to the more difficult Strickland
standard—Holloway’s automatic reversal rule was certainly inapplicable to these
non-multiple representation conflicts.
After Mickens, a trial court thus has a duty to inquire only if it knows or
reasonably should know of an actual conflict. In the multiple representation
setting, the duty is mandatory, prejudice is presumed, and reversal is automatic.
But if there is only the mere possibility of conflict, the duty to inquire exists only
if the trial court has a substantial basis to believe an actual conflict exists.
3
(...continued)
Ornoski, 431 F.3d 1158, 1184–85 (9th Cir. 2005) (describing Ninth Circuit
precedent as having “expanded the scope of the [Cuyler] exception to apply in
other contexts”), and United States v. Blount, 291 F.3d 201, 211–12 (2d Cir.
2002) (applying Cuyler test on direct appeal where government witness was
represented in an unrelated proceeding by a different member of defense
counsel’s law firm), with United States v. Wright, 745 F.3d 1231, 1233 (D.C. Cir.
2014) (stating that, “[s]ince Mickens, this Court has [like the Supreme Court] not
decided whether the Cuyler v. Sullivan standard applies to cases involving
successive representation), and Morelos v. United States, 709 F.3d 1246, 1252
(8th Cir. 2013) (describing the court’s jurisprudence as having “expressly
refrained from deciding whether the lowered burden in establishing prejudice
applies to actual conflicts of interest which did not arise out of multiple
representation”), and United States v. Goodley, 183 F. App’x. 419, 422 (5th Cir.
2006) (unpublished) (referencing the “strict limitation of [Cuyler] to cases
involving multiple representation and noting that “the Strickland standard applies
when [] the quality of representation is alleged to have been affected by the
attorney’s self-interest”), and Whiting v. Burt, 395 F.3d 602, 619 (6th Cir. 2005)
(declining to expand Cuyler “beyond its present borders of multiple concurrent
representation”).
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A number of cases from other circuits that were decided after Mickens
support this interpretation. See, e.g., Blake v. United States, 723 F.3d 870, 882
n.11 (7th Cir. 2013) (refusing to apply the automatic reversal rule because the
defense counsel’s conflict did not arise from joint representation and the court has
“recognized that ‘[s]ubsequent Supreme Court decisions have limited the
Holloway holding to situations in which the district court requires joint
representation over a timely objection.’” (quoting United States v. Lafuente, 426
F.3d 894, 897 (7th Cir. 2005))); Ausler v. United States, 545 F.3d 1101, 1103–04
(8th Cir. 2008) (refusing to apply Holloway outside the multiple representation
context).
As the First Circuit recognized in United States v. Mota-Santana, 391 F.3d
42 (1st Cir. 2004), if we held otherwise and treated attorney-client disagreements
the same as conflicts arising from multiple representation situations “with
resulting possible per se reversal without the necessity of proving prejudice,” then
“the nature of appeals in criminal cases would be dramatically altered. The odds
are that many an unsuccessful defendant would be found nursing some
disagreement with counsel.” 391 F.3d at 46. In the same vein, a leading
commentator notes, “while courts uniformly require an inquiry where counsel
moves for withdrawal and cites a conflict other than multiple representation,
Holloway arguably does not extend to such settings, so the failure to conduct an
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inquiry does not require automatic reversal as a matter of constitutional law.”
See LaFave, supra, at § 11.9(b) (emphasis added).
In support of his contention that Holloway governs here, Williamson relies
on our decision in United States v. Cook, 45 F.3d 388 (10th Cir. 1995), abrogated
on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001). In Cook, a
§ 2255 habeas decision, we held the defendant was denied effective assistance of
counsel because we concluded that “a defendant’s right to counsel free from
conflicts of interest ‘is not limited to cases involving joint representation of co-
defendants . . . but extends to any situation in which a defendant’s counsel owes
conflicting duties to that defendant and some other third person.’” Id. at 393
(quoting United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988)).
But Cook was not a personal conflict of interest case. Rather, the case involved a
joint representation conflict: during trial, the court asked defense counsel to
apprise the codefendant-turned government witness (whom he was not
representing) of the consequences of her refusal to testify against his client.
Although the defense counsel did not ultimately represent the codefendant in the
subsequent proceedings, the conflict raised was the same as if he had. See id. at
391–92, 394. Our decision in Cook, therefore, does not control the outcome of
this case. 4
4
The existence of an actual, prejudicial conflict in Cook was also so
“obvious” that the court found Strickland prejudice arising from counsel’s failure
(continued...)
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Williamson’s reliance on Cook, moreover, is undermined by the Supreme
Court’s decision in Mickens seven years later. As we explained, in that case, the
Court held that Holloway’s automatic reversal rule applied “only where defense
counsel is forced to represent codefendants over his timely objection, unless the
trial court has determined that there is no conflict.” 535 U.S. at 168 (emphasis
added). In other words, in explaining its holding in Holloway, the Court
expressly limited the automatic reversal rule to multiple representation situations.
The language of Holloway itself also supports this reading. See 435 U.S. at 488(“[W]henever a trial court improperly requires joint representation over timely
objection reversal is automatic.” (emphasis added)). The principle of Holloway
flows from the “disabling conflict” of joint representation, not from a universal
understanding that every potential conflict is created equally. See LaFave, supra,
at § 11.9(b).
Accordingly, we conclude that Mickens clarified that the automatic reversal
rule applies only to multiple representation conflicts of interest. Therefore, the
automatic reversal rule is inapplicable to the conflict alleged here. After Mickens,
a potential conflict of interest that is not a multiple representation
conflict—regardless of whether it is raised prior to trial—does not fall under
Holloway’s “duty to inquire” into potential conflicts of interest. Only if a court
4
(...continued)
to assert a “dead-bang winner” on direct appeal. Cook, 45 F.3d at 395.
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knows or has reason to know of an actual conflict must it do more. And even if
the court fails to inquire into an actual conflict, the automatic reversal rule will
not apply. Instead, on appellate review, the court will consider the facts and
circumstances of the case under the commands of Strickland before deciding if
there was constitutional error.
Here, whether we should review Williamson’s conflict of interest claim
under Cuyler or the more difficult Strickland standard is immaterial, because
Williamson cannot meet even Cuyler’s lesser standard. Williamson has failed to
allege any instances suggesting that Mr. Fowler’s representation was
compromised due to his relationship with the prosecutor. In fact, before
Williamson brought his conflict of interest concern to the attention of the court,
Mr. Fowler himself made the court aware of his relationship with Ms. Martin, and
specifically stated that it was not a conflict. During the February 2014 hearing on
Mr. Fowler’s motion to withdraw, he informed the court,
I told [Williamson], obviously he’s aware, I make it very
clear with all my clients, that Miss Martin and I were
married at one time, we have a child together. That’s
not an ethical dispute or an ethical problem and things
like that happen a lot in smaller towns but I still make it
clear. I don’t know if that adds to [Williamson’s
distrust of my advice] or not.
R., Vol. 2 at 10. Williamson, moreover, failed to raise the alleged conflict of
interest issue until months later, in his second pro se motion for new counsel.
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Even then, when given the opportunity to state his concerns on the record,
Williamson cited a litany of complaints against Mr. Fowler, but never mentioned
Mr. Fowler’s alleged personal conflict of interest. We cannot fault the district
court for failing to inquire further when neither the defendant nor his counsel
(who wanted out of the case) thought it was important enough to raise in front of
the court. In short, the district court had no reason to believe, without more, that
Mr. Fowler had an actual conflict that compromised his representation of
Williamson.
In sum, since Williamson has failed to meet his burden under Cuyler, we
reject his conflict of interest claim based on Mr. Fowler’s relationship with the
prosecutor.
2. Conflict Based on Criminal Complaint
Alternatively, Williamson argues that the district court should have granted
his motion for new counsel because he had filed a criminal complaint against Mr.
Fowler, creating a conflict of interest between Mr. Fowler’s self-interest and his
duties to represent his client. We review a district court’s denial of a motion to
substitute counsel for abuse of discretion, see United States v. Vargas, 316 F.3d
1163, 1165 (10th Cir. 2003), and again disagree with Williamson and hold that
filing, or threatening to file, a criminal or ethical complaint against an attorney
does not per se create a conflict of interest requiring substitution of counsel.
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A defendant’s grievance against his attorney may establish good cause for
substitution of counsel, but the mere act of filing a grievance is not dispositive.
Instead, a defendant must show that his attorney possessed an actual conflict of
interest with his client and that his performance was adversely affected due to that
conflict. See United States v. Holman, 314 F.3d 837, 845–46 (7th Cir. 2002).
Although there are few authorities in our circuit that address this issue, 5 we
are aided in our analysis by ample authority from other circuits on the topic of
ethical complaints. In United States v. Contractor, 926 F.2d 128 (2d Cir. 1991),
for instance, the Second Circuit held that a defendant’s conflict of interest claim
based on a bar association complaint that he had filed against his attorney prior to
sentencing lacked merit because the defendant offered no evidence how the
alleged conflict adversely affected his attorney’s performance. Id. at 134.
Similarly, in United States v. Burns, 990 F.2d 1426 (4th Cir. 1993), the Fourth
Circuit explained that the Supreme Court has never suggested that a conflict
between a defendant and his attorney arising from a separate proceeding requires
5
In Galloway v. Howard, 624 F. Supp. 2d 1305 (W.D. Okla. 2008), the
district court noted that we have, in unpublished opinions, “upheld a district court
determination that counsel did not have an irreconcilable conflict notwithstanding
the defendant’s filing of a complaint with the bar association,” and “rejected a
habeas claim on grounds that the petitioner’s filing of a complaint against his trial
counsel with the state bar association did not reflect a reasonable probability of
reversal if the issue had been raised on appeal.” Id. at 1317–18 (discussing
United States v. Rhodes, 157 F. App’x 84, 88 (10th Cir. 2005) (unpublished) and
Wiley v. Sirmons, 196 F. App’x 727, 731 (10th Cir. 2006) (unpublished)). We, of
course, refer to these unpublished decisions only for their persuasive value. Fed.
R. App. P. 32.1; 10th Cir. R. 32.1.
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automatic reversal. In fact, as the court noted, the defendant’s attorney would not
have been advantaged in disciplinary proceedings before the state bar if he had
failed to represent the defendant to the best of his ability in the criminal case. Id.
at 1438; see also Winfield v. Roper, 460 F.3d 1026, 1040 (8th Cir. 2006)
(“Nothing in our precedent suggests that the mere filing of a malpractice action is
sufficient to create a conflict of interest.”). Further, the Fourth Circuit in Burns
cautioned that to extend the automatic reversal rule to this situation might allow
defendants to game the system: “to hold otherwise on such unpersuasive facts
would invite criminal defendants anxious to rid themselves of unwanted lawyers
to queue up at the doors of bar disciplinary committees on the eve of trial. Such
is not an invitation we wish to extend.” Burns, 990 F.2d at 1438; see Smith v.
Lockhart, 923 F.2d 1314, 1321 n.11 (8th Cir. 1991) (recognizing “the danger of
any holding implying that defendants can manufacture conflicts of interest by
initiating lawsuits against their attorneys”).
Thus, a defendant’s mere filing of a disciplinary inquiry or criminal
complaint against his attorney is not enough to establish an actual conflict of
interest. An actual conflict exists only if an attorney is torn between two
different interests, and a defendant must prove that he was prejudiced by actions
resulting from the alleged conflict. See Holman, 314 F.3d at 845.
Here, Williamson argues that the court “should have accepted counsel’s
representations that the conflict [caused by Williamson’s complaints against Mr.
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Fowler] impaired his professional judgment, his ethical responsibilities, and his
own self-interest.” Reply Br. at 5. But a close examination of the record
suggests that what Mr. Fowler was really concerned about was how the record
would look on appeal; his statements on the whole do not suggest that he was torn
between two competing interests.
Mr. Fowler recognized that Williamson’s filing of a complaint against him
with the Attorney General created a conflict of interest, but added, “I don’t think
that alone is enough to demand removal.” R., Vol. 2 at 157, 160. Mr. Fowler
also expressed a lack of concern with the charges, stating, “frankly, I doubt those
will go anywhere.” Id. at 157. Mr. Fowler’s statement is consistent with the
district court’s findings: “Mr. Fowler has not asserted that the filing of the
complaint would affect his professional performance in any manner whatsoever,
and the Court is confident that he can and will continue to represent defendant in
an utmost professional manner.” R., Vol. 1 at 244. Instead, Mr. Fowler was
concerned about how the disagreements between him and Williamson would
appear in future appeals. See R., Vol. 2 at 159 (“[W]e’ll be here in two and a half
years in a 2255 and I will be answering questions, probably under oath, did you
feel like you could communicate with your client? And I don’t know at that stage
what my answer will be . . . but I suspect my answer is going to be, no, there was
no communication.”); Id. at 158 (“[H]ow’s that going to look in two years and in
[a] 2255? Did I—was my advice to protect me or to protect him?”).
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Mr. Fowler made one statement to the court that requires further comment.
During the hearing on May 30, 2014, Mr. Fowler told the court:
I have pondered a competency evaluation . . . I’m not
saying that []—I would file that today or this week or
that it might come up between now and trial or after
trial, before sentencing. And how [] do I as an attorney
properly evaluate that and how is the record going to
look . . . if that motion is filed after a complaint has
been made against me?
R., Vol. 2 at 162. Although this concern is similar to the ones raised above—Mr.
Fowler’s concerns were forward-looking, based on how his representation would
be viewed on appeal—and the record does not indicate that Mr. Fowler himself
believed there was a conflict of interest at the time of his statements, this
statement still gives us pause. Considering that Williamson eventually conducted
his trial pro se, Mr. Fowler’s failure to request a competency evaluation could
have had a substantial effect on the outcome of the case. If Williamson’s
competency had been evaluated, and if he was found to be incompetent, he
certainly would not have been able to represent himself in the subsequent
proceedings.
Still, even assuming arguendo that the competency statement constituted an
actual conflict, that is not the end of the inquiry. Williamson must also prove that
Mr. Fowler’s “performance was adversely affected because of [the] conflict [of
interest].” Holeman, 314 F.3d at 845. Williamson cannot meet that standard.
Mr. Fowler and Williamson’s disagreements began long before Williamson filed
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the complaint and Mr. Fowler made the statement about the competency
evaluation. In fact, Mr. Fowler himself had filed a motion to withdraw back in
February 2014, three months before the competency statement, citing a “total
breakdown of communication between counsel and Mr. Williamson.” R., Vol. 1
at 109.
Accordingly, it is impossible to draw a causal link between Williamson’s
filing of criminal charges against Mr. Fowler and Mr. Fowler’s statement about
Williamson’s competency to demonstrate that Mr. Fowler’s performance was
adversely affected because of the charges filed against him. The parties simply
have too complicated of a history.
We therefore reject Williamson’s conflict of interest argument based on his
filing of a criminal complaint against counsel.
3. Complete Breakdown of Communication
Williamson’s third conflict-based argument is that the district court should
have granted his motion for new counsel because he demonstrated a complete
breakdown of communication between himself and Mr. Fowler.
A defendant may demonstrate abuse of discretion by showing “a complete
breakdown of communication” between himself and counsel. United States v.
Padilla, 819 F.2d 952, 955 (10th Cir. 1987) (citation omitted). “Good cause for
substitution of counsel consists of more than a mere strategic disagreement
between a defendant and his attorney . . . rather there must be a total breakdown
-26-
in communications.” United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002).
“[T]o prove a total breakdown in communication, a defendant must put forth
evidence of a severe and pervasive conflict with his attorney or evidence that he
had such minimal contact with the attorney that meaningful communication was
not possible.” Id. In reviewing a district court’s denial of a motion to substitute
counsel, we consider whether: (1) the defendant’s request was timely; (2) the trial
court adequately inquired into the reasons for making the request; (3) the
defendant-attorney conflict was so great that it led to a total lack of
communications precluding an adequate defense; and (4) the defendant
substantially and unreasonably contributed to the breakdown in communications.
Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000); see also United States
v. Porter, 405 F.3d 1136, 1140 (10th Cir. 2005).
The district court concluded that the motion was untimely and denied the
request. But even if Williamson’s request had been timely, the remaining Romero
factors weigh against him. See United States v. Lott, 433 F.3d 719, 725 (10th Cir.
2006) (affirming the district court’s denial of a motion to substitute counsel
despite the fact that the motion was timely filed, because “the district court did
not abuse its discretion in concluding the other three Romero factors weighed
against finding a complete breakdown in communication”). Williamson concedes
that the district court made an “adequate inquiry” into his reasons to ask for
substitute counsel, Aplt. Br. at 32, so the remaining issues are only whether the
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defendant-attorney conflict was so great that it led to a total lack of
communications precluding an adequate defense and whether the defendant
substantially and unreasonably contributed to the breakdown in communications.
See Romero, 215 F.3d at 1113.
Williamson admits that “some disputes were related to trial tactics and
strategic decisions” and that “courts have discretion to reject those disagreements
as grounds for substitute counsel,” Aplt. Br. at 32, but he argues that Mr. Fowler
informed the court there was an “irreconcilable” and “total breakdown of
communication” between himself and Williamson, there was a “complete lack of
trust,” and he did not feel that it was “appropriate . . . to continue as his
attorney,” Aplt. Br. at 33 (citations omitted); consequently, Williamson argues,
the district court should have paid substantial deference to Mr. Fowler’s view and
allowed him to withdraw as Williamson’s counsel.
But Williamson failed to provide the district court with legitimate reasons
for his distrust of Mr. Fowler. Instead, most of the disagreements between the
two resulted from their different views on case strategy and tactics, which the
trial court recognized after considering Williamson’s concerns at length. 6
6
See R., Vol. 2 at 36–46, 61 (addressing issues raised by Williamson’s
February 11, 2014 letter to the court); R., Vol. 2 at 97 (after a lengthy inquiry into
Williamson’s complaints about Mr. Fowler during the April 29, 2014 hearing, the
court stated, “Mr. Williamson, you are wasting the time of everybody in this
courtroom.”); R., Vol. 2 at 99 (“It also seems to me that what we’re talking about
is a strategic disagreement between you and your attorney about how this case
(continued...)
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Williamson’s remaining concerns about Mr. Fowler’s representation were that Mr.
Fowler had violated attorney-client confidentiality, 7 that he was threatening
Williamson if he did not take the plea bargain offered by the government, and that
Mr. Fowler had threatened to post the details of the crime in the newspaper to
force Williamson to take the guilty plea out of fear for his life. These concerns
are unreasonable. Williamson incorrectly believes that plea bargaining is
unconstitutional and is a form of blackmail. The district court inquired into
Williamson’s other concerns, but determined that merely conveying the
government’s plea offers to the defendant is not “threat[ening]” conduct, and is
actually required of defense counsel under Missouri v. Frye, 132 S. Ct. 1399(2012). Additionally, the court determined that informing Williamson that the
details of his case could be publicized if they went to trial was “not a threat” by
6
(...continued)
should be defended, [and] I have not heard anything which suggests to me from
any objective point of view that Mr. Fowler is refusing or failing to provide the
representation to which you are entitled under the Sixth Amendment to the United
States Constitution.”); R. Vol. 1 at 245 (finding that “defendant has not shown a
complete breakdown of communications with Mr. Fowler or any other ground to
warrant substitution of counsel” and “defendant has identified numerous matters
of strategic disagreement with Mr. Fowler but these issues are ultimately matters
of defense strategy left to the discretion of counsel.”).
7
Williamson made only a passing reference to a violation of attorney-
client privilege that was distinct from the claims that counsel would blackmail
him unless he took the plea bargain and that counsel threatened to post details of
the crime in the newspaper. See R., Vol. 1 at 261 (“Counsel’s slip-of-the-tongue
that ‘’they’ don’t believe your story’ gives the appearance that counsel has
violated attorney/client privilege.”).
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Mr. Fowler, but a “fact of life.” See R., Vol. 2 at 58; see id. at 61 (“What Mr.
Fowler is trying to tell you, I believe, is that you need to understand the
consequences of pleading guilty or going to trial. And what he’s saying to you is
accurate.”).
Finally, the fourth Romero factor—whether the defendant substantially and
unreasonably contributed to the breakdown in communications—weighs heavily
against Williamson in this case. See Romero, 215 F.3d at 1113. The record is
replete with evidence that Williamson was uncooperative and, at times,
intransigent, when it came to his incorrect legal theories, even if Mr. Fowler
could not state that their breakdown in communications was “100% Mr.
Williamson’s fault.” R., Vol. 2 at 164. As the district court’s comments make
clear, Williamson wanted to control all of the strategic decisions in his case and
complained about Mr. Fowler when he refused to “put[] up [with Williamson’s]
bogus theories and demand[s] that Mr. Fowler do things he can’t ethically do.”
R., Vol. 2 at 56. Additionally, the district court noted that although Mr. Fowler
claimed that there was a complete breakdown in communication when he
requested to be removed as Williamson’s counsel, “[d]efendant appears to have
no problem communicating with counsel when he agrees with counsel’s message
on matters such as waiving a jury trial. Meaningful communication is clearly
possible when defendant chooses to engage in it.” R., Vol. 1 at 245 n.2.
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In sum, the record makes clear that Williamson substantially and
unreasonably contributed to the breakdown in communication with his counsel
and supports the district court’s denial of Williamson’s requests for new counsel.
B. Waiver of the Right to Counsel
Williamson next argues that the district court erred in allowing him to
represent himself during his trial and sentencing.
A defendant has the Sixth Amendment right to waive his right to counsel
and represent himself in a criminal case. Faretta v. California, 422 U.S. 806,
821, 832 (1975). But the waiver must be “an intentional relinquishment or
abandonment of a known right or privilege.” United States v. McConnell, 749
F.2d 1441, 1450–51 (10th Cir. 1984) (citation omitted). And “[b]efore a court
may grant a waiver, it must ensure the defendant is ‘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.’” Maynard v.
Boone, 468 F.3d 665, 676 (10th Cir. 2006) (quoting Faretta, 422 U.S. at 835).
We conduct a two-part test to determine whether a defendant has
effectively waived his right to counsel. “First, we must determine whether the
defendant voluntarily waived his right to counsel [and] [s]econd, we must
determine whether the defendant’s waiver of his right to counsel was made
knowingly and intelligently.” United States v. Taylor, 113 F.3d 1136, 1140 (10th
Cir. 1997).
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Under the first part of our analysis, whether a defendant’s waiver of
counsel is voluntary “turns on whether defendant’s objections to present counsel
are such that he has a right to new counsel.” United States v. Padilla, 819 F.2d
952, 955 (10th Cir. 1987). “A defendant’s waiver is involuntary if he is forced to
choose between incompetent counsel or appearing pro se.” United States v.
Taylor, 183 F.3d 1199, 1203 (10th Cir. 1999). And unless a defendant
demonstrates good cause warranting the appointment of new counsel, the
defendant’s decision to waive counsel will be considered voluntary. Taylor, 113
F.3d at 1140.
Under the second part of our analysis, we look at the totality of the
circumstances to determine whether a defendant has knowingly decided to
proceed pro se. The test for an intelligent waiver “turns not only on the state of
the record, but on all the circumstances of the case, including the defendant’s age
and education, his previous experience with criminal trials, and representation by
counsel before trial.” Padilla, 819 F.2d at 958. The “tried-and-true” method for
determining that a waiver was knowing and intelligent is to conduct a Faretta
hearing: “a thorough and comprehensive formal inquiry of the defendant on the
record to demonstrate that the defendant is aware of the nature of the charges, the
range of allowable punishments and possible defenses, and is fully informed of
the risks of proceeding pro se.” United States v. Vann, 776 F.3d 746, 763 (10th
Cir. 2015) (quoting United States v. Willie, 941 F.2d 1384, 1388 (10th Cir.
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1991)). “However, there is ‘[n]o precise litany’ of questions that must be asked
of defendants who choose self-representation.” United States v. Turner, 287 F.3d
980, 983 (10th Cir. 2002) (quoting Padilla, 819 F.2d at 959). We review the
validity of a waiver of the right to counsel de novo and the underlying factual
findings for clear error. See id.Williamson contends that his decision to waive counsel and proceed pro se
was a “Hobson’s choice,” because the district court refused his motion to
substitute counsel. Aplt. Br. at 39. Under the first part of the inquiry,
Williamson claims that his choice to proceed pro se was involuntary, because “his
options were to proceed to trial with conflicted counsel he could not meaningfully
talk with, or to represent himself.” Id. To show an involuntary waiver, however,
a defendant must first demonstrate good cause warranting the substitution of
counsel. See, e.g., Taylor, 113 F.3d at 1140; Padilla, 819 F.2d at 955.
Williamson has failed to do so here, presenting no meritorious arguments
that Mr. Fowler’s representation was inadequate or that a new attorney was
required. The district court had previously supplied Williamson with new
counsel. Then, the court held multiple hearings to address Williamson’s requests
for yet another new attorney and denied all of his motions. And, as we have
previously explained, none of Williamson’s complaints about Mr. Fowler merit a
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different outcome on appeal. Williamson therefore voluntarily waived his right to
counsel. 8
Under the second part of the inquiry, Williamson argues he did not
knowingly and intelligently waive his right to counsel. See Aplt. Br. at 40. The
record does not support his claim. In fact, the district court conducted a thorough
Faretta inquiry, ensuring that Williamson understood that representing himself
would require him to conduct every phase of the trial. The court confirmed that
Williamson had read the indictment and understood the charges against him and
the possible penalties he faced. The court warned Williamson that if he
represented himself, the judge would not be able to advise him on how to try his
case, he would be responsible for determining the defenses he could raise at trial,
and the procedural rules of the courtroom would not be relaxed for his benefit.
The district court even strongly cautioned Williamson against proceeding pro se,
describing it as “a grave and severe mistake.” R., Vol. 1 at 469–71. Finally,
prior to opening statements, the trial judge reiterated many of the court’s
warnings and conducted a colloquy with Williamson to ensure that he
remembered his previous conversation with the court, had thought about it, and
that his opinion had not changed.
8
Williamson also argues that his waiver of counsel was involuntary
because the district court first suggested that he proceed pro se. See Aplt. Br. at
40. But that argument fails. We encountered a similar situation in Taylor, 183
F.3d at 1203, yet still concluded that the defendant’s decision to represent himself
was voluntary. See id.-34-
We therefore reject Williamson’s waiver argument. 9
C. Suppression of Evidence
Williamson’s final argument is that the district court erred in denying a
motion to suppress evidence recovered from a search of his residence.
Williamson contends the search warrant was facially deficient, because it failed to
express a finding of probable cause and state that it was a “search warrant” on the
face of the document.
The magistrate judge reviewing the motion to suppress found the following
facts: Lawrence, Kansas police detectives Scott Slifer and Mike Schneider met
with a local Indiana judge to obtain a search warrant for Williamson’s home.
Detective Slifer presented two documents to the judge: (1) a five-page, single-
spaced affidavit in support of the search warrant; and (2) an untitled, one-page
document in the format of a search warrant. The first five paragraphs of the
documents were identical, and both specifically identified the address of the place
to be searched and the items to be seized. Both documents also concluded with a
signature line for the affiant, followed by the words, “[s]igned and sworn to
before me on June 04, 2012, by Scott Slifer,” and a signature line for the judge.
R., Vol. 1 at 126. The judge swore Detective Slifer to the probable cause
9
Williamson claims that another Faretta hearing should have been
conducted prior to his sentencing, but we rejected that argument in United States
v. Vann, 776 F.3d 746 (10th Cir. 2015), describing such a rule as “unworkable.”
Id. at 764.
-35-
affidavit and approved and signed both the warrant and the affidavit. Detectives
Slifer and Schneider, along with Indiana police officers and detectives, executed
the search warrant later that morning and seized numerous items from
Williamson’s Indiana residence, including computers and related equipment, a
cell phone, and a digital camera. But “due to an oversight,” the magistrate judge
found that “[D]etective Slifer signed the warrant [but] did not sign the probable
cause affidavit.” R., Vol. 1 at 126–27.
After making these factual findings, the magistrate judge recommended that
Williamson’s motion to suppress be denied, and the district court—after
reviewing the magistrate judge’s Report and Recommendation—adopted the
recommendation in its entirety.
The Fourth Amendment requires two elements for a search warrant: (1)
probable cause supported by an oath or affirmation; and (2) a particular
description of the place, persons, and things to be searched and seized. U.S.
Const. amend. IV; see also United States v. Brakeman, 475 F.3d 1206, 1211 (10th
Cir. 2007). We do not apply a “hypertechnical approach to search warrants.”
United States v. Massey, 687 F.2d 1348, 1356 (10th Cir. 1982). Instead, we have
“adopted a standard of ‘practical accuracy rather than technical precision.’”
United States v. Ortega-Jimenez, 232 F.3d 1325, 1328 (10th Cir. 2000) (quoting
United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998)). Indeed, the
Fourth Amendment does not require that a written affidavit establish probable
-36-
cause; “it merely requires that the information provided the issuing magistrate be
supported by ‘Oath or affirmation.’” United States v. Clyburn, 24 F.3d 613, 617
(4th Cir. 1994) (quoting U.S. Const. amend. IV); see also United States v.
Shields, 978 F.2d 943, 946 (6th Cir. 1992) (“The Fourth Amendment does not
require that statements made under oath in support of probable cause be tape-
recorded or otherwise placed on the record or made part of the affidavit.”);
Frazier v. Roberts, 441 F.2d 1224, 1226–27 (8th Cir. 1971) (“It is clear that the
Fourth Amendment permits the warrant-issuing magistrate to consider sworn oral
testimony supplementing a duly executed affidavit to determine whether there is
probable cause upon which to issue a search warrant.”).
Additionally, “nothing in the [text of] the Fourth Amendment [expressly]
conditions the validity of a warrant on its being signed.” United States v. Cruz,
774 F.3d 1278, 1285 (10th Cir. 2014) (quoting United States v. Lyons, 740 F.3d
702, 724 (1st Cir. 2014)). In both Cruz and Lyons, the judge reviewed the police
officers’ probable cause application, determined that probable cause existed, and
signed the application and accompanying affidavit, but inadvertently failed to
sign the warrant itself before the officers conducted the search. See Cruz, 774
F.3d at 1285–86. The defendant in Cruz argued that the warrant was thus
“facially deficient at the time of the search because it lacked any indication that a
neutral and detached magistrate had made a determination of probable cause.” Id.
at 1286–87. We rejected this argument, stating, “Cruz erroneously interprets this
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first requirement as requiring the face of the warrant itself to ‘contain[] . . .
markings,’ preferably a signature, ‘indicating a neutral and detached
magistrate . . . actually’ made a finding of probable cause. Nothing in Groh,
however, let alone the text of the Fourth Amendment itself, imposes such a facial
requirement.” Id. at 1287 (referencing the Supreme Court’s decision in Groh v.
Ramirez, 540 U.S. 551 (2004)).
Here, Detective Slifer’s inadvertent failure to sign the affidavit does not
violate the probable cause requirement. The magistrate judge found that three
facts demonstrated a sufficient “oath or affirmation” of probable cause, even
absent Detective Slifer’s signature on the face of the affidavit. First, detectives
Slifer and Schneider both testified that the Indiana judge swore Detective
Schneider to the “truth and veracity” of the affidavit he presented in support of
the search warrant. Second, the judge signed both the affidavit and the search
warrant; and third, Detective Slifer signed the search warrant under the sentence
that read, “Affiant states the following facts which he has reasonable grounds to
believe and does believe to be true.” R., Vol. 1 at 142–43 (quoting the search
warrant).
Williamson also argues that the search warrant was invalid because it did
not include the title “search warrant.” To require that a search warrant contain
the title “search warrant” would fall under the requirements that we have rejected
as “hypertechnical.” Massey, 687 F.2d at 1356. The text of the warrant itself is
-38-
sufficient to “assure[] the individual whose property is searched or seized of the
lawful authority of the executing officer, his need to search, and the limits of his
power to search.” Groh, 540 U.S. at 561 (quoting United States v. Chadwick, 433
U.S. 1, 9 (1977)).
Accordingly, we find no error in the district court’s denial of Williamson’s
motion to suppress.
III. Conclusion
We AFFIRM the district court’s decision in its entirety.
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