United States v. Webber

RECOMMENDED FOR FULL-TEXT PUBLICATION
16 United States v. Webber No. 98-1708 Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0114P (6th Cir.)
File Name: 00a0114p.06
Conclusion
For the reasons stated above, the Court concludes that
Defendant’s right to testify on his own behalf was not UNITED STATES COURT OF APPEALS
unconstitutionally denied and there was sufficient evidence
for the jury to convict Defendant on count four of the FOR THE SIXTH CIRCUIT
indictment. Therefore, Defendant’s sentence and convictions _________________
are AFFIRMED.
;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,


No. 98-1708
v.

>
VINCENT WEBBER, 
Defendant-Appellant. 
1
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 95-80116—Gerald E. Rosen, District Judge.
Argued: December 16, 1999
Decided and Filed: March 31, 2000
Before: RYAN and NORRIS, Circuit Judges; NUGENT,*
District Judge.
_________________
COUNSEL
ARGUED: Otis H. Stephens, UNIVERSITY OF
TENNESSEE, Knoxville, Tennessee, for Appellant. Michael
R. Mueller, ASSISTANT UNITED STATES ATTORNEY,
*
The Honorable Donald C. Nugent, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
2 United States v. Webber No. 98-1708 No. 98-1708 United States v. Webber 15
Detroit, Michigan, for Appellee. ON BRIEF: Gerald L. pager number to Agent Strickland. Agent Strickland then
Gulley, Jr., BAKER, McREYNOLDS, BYRNE, O’KANE & called the pager number and set up the December 13, 1994,
SHEA, Knoxville, Tennessee, for Appellant. Michael R. transaction for two ounces of crack cocaine. After arranging
Mueller, ASSISTANT UNITED STATES ATTORNEY, the transaction with Mr. Johnson, Agent Strickland paid
Detroit, Michigan, for Appellee. Defendant the agreed-upon $100 dollars for the pager number
and code. Without Defendant’s participation, Mr. Johnson
_________________ and Agent Strickland could not have completed the December
13, 1994, transaction for two ounces of crack cocaine, much
OPINION less the first two one-ounce transactions. This is more than
_________________ sufficient evidence for a trier of fact to determine that
Defendant knew Mr. Johnson possessed the crack cocaine
NUGENT, District Judge. Defendant Vincent Webber with the intent to sell it, and that Defendant offered assistance
appeals his convictions and sentence on count one for and encouragement to Mr. Johnson in the commission of the
conspiracy to possess with intent to distribute cocaine base in two-ounce sale.
violation of 21 U.S.C. § 846, counts two and three for
distribution of cocaine base in violation of 21 U.S.C. Third, in regard to Defendant’s argument that he never
§ 841(a)(1), and count four for aiding and abetting actually possessed the crack cocaine and thus should not have
distribution of cocaine base in violation of 21 U.S.C. been found guilty of aiding and abetting, it is well-settled that
§ 841(a)(1) and 18 U.S.C. § 2. Defendant claims his right to it is not necessary for the government to prove that the
testify on his own behalf was unconstitutionally denied. defendant actually or even constructively possessed the drugs
Defendant also alleges that there was insufficient evidence for in order to obtain a conviction for aiding and abetting.
the jury to convict him on count four of the indictment. For Ledezma, 26 F.3d at 641 (citing United States v. Winston, 687
the reasons that follow, we AFFIRM the convictions and F.2d 832, 834 n.2, 835 (6th Cir. 1982)).
sentence.
Reviewing the evidence in the light most favorable to the
Factual and Procedural Background prosecution, there is ample evidence for us to determine that
a rational trier of fact could have found that the essential
On November 22, 1994, Defendant Vincent Webber met elements of the crime were proven beyond a reasonable
with Drug Enforcement Administration undercover agent doubt. The evidence is clear Defendant knew that Mr.
Robert Strickland and a cooperating informant at Starters Johnson, the principal, possessed crack cocaine with the
Lounge in Detroit, Michigan. Agent Strickland and the intent to distribute it, and that Defendant assisted in Mr.
cooperating informant were there to purchase one ounce of Johnson’s plan to deliver the crack cocaine. See Ledezma, 26
crack cocaine (cocaine base) from Defendant. This F.3d at 641. Because Defendant associated himself with the
transaction had been arranged through several telephone venture, participated in it, and sought by his actions to make
conversations between the cooperating informant and it succeed, United States v. Peoni, 100 F.2d 401, 402 (2d Cir.
Defendant. After meeting Agent Strickland and the 1938) (L. Hand, J.), quoted with approval in Ledezma, 26
cooperating informant, Defendant paged his source, Tujuan F.3d at 641, Defendant’s argument that the evidence was
Johnson. Shortly thereafter, Mr. Johnson entered the lounge insufficient to sustain his conviction on count four of the
and proceeded to the restroom, followed by Defendant and indictment for aiding and abetting fails.
Agent Strickland. Agent Strickland purchased 20 grams
(about two-thirds of an ounce) of crack cocaine from Mr.
14 United States v. Webber No. 98-1708 No. 98-1708 United States v. Webber 3
Defendant asserts that he did not aid and abet the Johnson for $1,100 dollars. Mr. Johnson paid Defendant $50
distribution of crack cocaine because he (1) “was never able dollars as a “transaction” or referral fee. Agent Strickland
to provide [Agent Strickland] with instant access to any and Defendant agreed to talk later in order to set up another
quantity of cocaine base”; (2) “always required lead time in transaction.
order to contact Johnson”; (3) “was never able to locate more
than an ounce of cocaine for Strickland”; and, (4) “never had On December 5, 1994, Agent Strickland called Defendant
anything to do with the actual possession of the ‘crack’ in order to purchase another ounce of crack cocaine.
cocaine.” (Def.’s Br. at 27-28.) Defendant’s arguments miss Defendant told him that the price would be $1,100 dollars and
the mark. said that he wanted to make more than $50 dollars for this
transaction. Agent Strickland agreed to pay him an additional
First, in regard to Defendant’s first two arguments, there is $50 dollars, over and above the $50 dollars that he would
no immediacy requirement to aiding and abetting. The only receive from Mr. Johnson. Defendant, Agent Strickland, and
strict time requirement applicable to aiding and abetting is Mr. Johnson met later that day at the back of Starters Lounge,
that “one cannot aid and abet a completed crime.” Ledezma, where Agent Strickland purchased 21.4 grams of crack
26 F.3d at 642. A prolonged period of time between a cocaine from Mr. Johnson for $1,100 dollars. Mr. Johnson
defendant’s actions and the commission of the offense may paid Defendant his $50 dollar transaction fee. Agent
dissipate the strength of the government’s argument that a Strickland then spoke to Mr. Johnson about purchasing larger
defendant’s activity could be characterized as intending to quantities of crack cocaine from him directly. Mr. Johnson
help or encourage the commission of a crime, see, e.g., United told Agent Strickland to get his pager number from Defendant
States v. Hill, 55 F.3d 1197, 1204 (6th Cir. 1995), but that is and use Defendant’s code. Before leaving the bar, Agent
not the case here. In the matter at hand, the period of time Strickland paid Defendant the extra $50 dollars as promised.
between Defendant’s activities and the commission of the In sum, Defendant made $100 dollars for his part in the
crime was rather brief and not so attenuated as to cast doubt transaction.
on the trier of fact’s determination that Defendant knew that
Mr. Johnson possessed crack cocaine with the intent to On December 8, 1994, Agent Strickland spoke to
distribute it and assisted in Mr. Johnson’s plan to deliver the Defendant and his sister, Mary Ann Webber, several times in
crack cocaine. order to get Mr. Johnson’s pager number from Defendant.
Agent Strickland visited Defendant on December 12, 1994,
Second, the fact that Defendant never located more than an while Defendant was hospitalized at a Trenton, Michigan,
ounce of cocaine for Agent Strickland and thereby cannot be hospital, in a further attempt to get the pager number and
linked to aiding and abetting a two ounce sale is not code. Defendant provided Agent Strickland with Mr.
convincing. Defendant set up the first two transactions and Johnson’s pager number in exchange for $100 dollars. Agent
met with Agent Strickland at both. After the first transaction, Strickland then called Mr. Johnson from the hospital,
Defendant and Agent Strickland discussed what the future per arranging to purchase two ounces of crack cocaine the next
ounce cost of crack cocaine would be and the fact that day. After completing the call, Agent Strickland paid
Defendant had dealt with Mr. Johnson a number of times. Defendant the agreed-upon $100 dollars for the pager number
Defendant wanted to engage in a third transaction on the night and code. On December 13, 1994, Agent Strickland met Mr.
of December 8, 1994, but Agent Strickland was unable to Johnson at Starters Lounge and purchased 41.6 grams of
meet. After the first two transactions, for which Defendant crack cocaine for $1,940 dollars.
received a transaction fee, Defendant sold Mr. Johnson’s
4 United States v. Webber No. 98-1708 No. 98-1708 United States v. Webber 13
A federal grand jury returned a four-count indictment III. The Sufficiency of the Evidence
against Defendant, Mary Ann Webber, and Tujuan Johnson
on December 19, 1995. Count one charged all three with Defendant contends that the government did not present
conspiracy to possess with intent to distribute cocaine base sufficient evidence to sustain his conviction on count four of
from November 21, 1994, to December 13, 1994, in violation the indictment for distribution of crack cocaine, or aiding and
of 21 U.S.C. § 846. Count two charged Defendant and Mr. abetting the distribution of crack cocaine, in violation of 21
Johnson with distribution of cocaine base on November 22, U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We review a challenge
1994, in violation of 21 U.S.C. § 841(a)(1). Count three to the sufficiency of the evidence by considering the evidence
charged Defendant and Mr. Johnson with distribution of in the light most favorable to the prosecution to determine
cocaine base on December 5, 1994, in violation of 21 U.S.C. whether a rational trier of fact could have found that the
§ 841(a)(1). Count four charged Defendant and Mr. Johnson essential elements of the crime were proven beyond a
with the distribution, and aiding and abetting the distribution, reasonable doubt. United States v. Spearman, 186 F.3d 743,
of cocaine base on December 13, 1994, in violation of 21 746 (6th Cir. 1999) (citing United States v. Jones, 102 F.3d
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. 804, 807-08 (6th Cir. 1996)). “A defendant making such a
challenge bears a very heavy burden.” Spearman, 186 F.3d at
Defendant was arrested on February 14, 1995. He pled not 746 (citation omitted).
guilty. Prior to trial, the trial court granted Defendant’s1
Motion to Sever his trial from that of the other defendants. 21 U.S.C. § 841(a)(1) makes it unlawful for “any person
Defendant’s jury trial began on November 14, 1997. Prior to knowingly or intentionally to manufacture, distribute, or
the conclusion of the government’s case, in a discussion dispense, or possess with intent to manufacture, distribute, or
regarding jury instructions that took place after the jury had dispense, a controlled substance.” 18 U.S.C. § 2(a) states:
been excused for lunch, Defendant’s counsel, Mr. Curtis “Whoever commits an offense against the United States or
Williams, stated that the defense wanted an instruction on aids, abets, counsels, commends, induces, or procures its
entrapment. Defendant’s counsel also indicated that commission, is punishable as a principal.”
Defendant was going to testify. The following colloquy took
place in open court and on the record: Defendant argues that the “proof was insufficient for a
rational trier of fact to find beyond a reasonable doubt that
THE COURT: . . . [T]here’s an instruction on Vincent Webber aided and abetted, or otherwise distributed,
entrapment. I haven’t heard the defense raise the issue of ‘crack’ cocaine as alleged in Count Four of the Indictment.”
entrapment. (Def.’s Br. at 26.) Defendant attempts to distinguish his case
MR. WILLIAMS: We will, your Honor. from United States v. Ledezma, 26 F.3d 636 (6th Cir. 1994),
THE COURT: You’re going to raise entrapment? where this Court held that in order to prove aiding and
MR. WILLIAMS: Yes. abetting, the government must show that the defendant knew
THE COURT: Okay. Well then, we’ll leave that in. the principal possessed a controlled substance with the intent
And you indicated the defendant is still intending to to distribute it, and that the defendant assisted in the
testify? principal’s plan to deliver the controlled substance. Id. at 641
(citation omitted). “[T]he essence of the crime of aiding and
abetting is the defendant’s offering assistance or
encouragement to his principal in the commission of a
1 substantive offense.” Id. at 642 (citations omitted).
Subsequent to the trial, Mr. Johnson pled guilty and the indictment
against Ms. Webber was dismissed.
12 United States v. Webber No. 98-1708 No. 98-1708 United States v. Webber 5
justice if he testified at trial and was found guilty by the MR. WILLIAMS: Yes, he is, your Honor.
jury[.]” (Def.’s Br. at 18.) Defendant concludes that the THE COURT: Okay. Have you apprised the defendant
timing of the trial court’s colloquy and the Defendant’s – I ask this not to try to chill his or in any way inhibit him
decision soon thereafter not to testify creates a “presumption” from testifying, if he wants to, but have you informed
that the trial court “encouraged the Defendant to forego his him that if he testifies and if he’s convicted and the
fundamental and personal right to testify on his own behalf, government moves for an enhancement based on perjury,
thereby impermissibly chilling the Defendant’s exercise of his that I’ll have to make a decision about that and that
constitutional rights.” (Def.’s Br. at 24.) would have the effect of enhancing his sentence?
MR. WILLIAMS: We have not talked specifically
While we are mindful that excessive judicial interference about that. We will.
with a Defendant’s strategic decision regarding the right to THE COURT: You should tell him about the
testify constitutes a “danger [that] is of great significance ramifications about that. I wouldn’t want him to be
because the right not to testify counterpoises the right to surprised –
testify, and the exercise of one is the waiver of the other”, I can tell you. Mr. Weber [sic], let me just tell you.
Joelson, 7 F.3d at 178, the trial court’s instruction here was Under fairly recent Supreme Court law and under the
neither excessive nor so egregious that Defendant’s ability to guidelines, if a defendant takes the stand and testifies and
knowingly and intentionally waive his right to testify was is subsequently convicted, and if the government moves
impaired. Id. Rather than a “veiled threat,” the trial court’s for an enhancement, meaning an increase in the sentence
instruction was a non-coercive explanation of the law.4 The based on perjury by the defendant during his testimony at
court emphasized that it was not trying “in any way” to “chill” trial, I have to make a judgment as to whether or not the
or “inhibit” Defendant’s decision whether to testify, but rather defendant’s testimony was in fact perjurious and if it
“inform him”of the requirements of the sentencing guidelines. was, then I have to enhance. I don’t tell you this to try to
In addition, Defendant had ample opportunity to confer with inhibit you from testifying. If you want to testify,
his attorney after the trial court’s statements--in fact, the obviously that’s your prerogative. I tell you this only so
luncheon recess occurred right after the discussion took place- that you understand that if you testify, and you’re
-and Defendant did not make any objection that he wanted to subsequently convicted and if the government moves for
testify. There is not a scintilla of evidence of judicial an enhancement based on perjury, then I’ll have to make
intimidation, threat, or overbearance in the record. a judgment about that, and then if I find you perjured
Defendant’s claim is totally without merit and is denied. yourself, then your sentence would be enhanced. Do you
understand that?
THE DEFENDANT: Yes, I do, your honor.
THE COURT: All right.
4 At the close of the government’s case, Defendant’s counsel,
In order for a trial court to enhance a defendant’s sentence pursuant at a sidebar discussion, moved to dismiss count four of the
to USSG § 3C1.1 for obstructing justice because of perjury, “the district indictment pursuant to Federal Rule of Civil Procedure 29,
court must fulfill two requirements; first, it must identify those particular
portions of the defendant’s testimony that it considers to be perjurious, alleging there was insufficient proof to sustain a guilty verdict
and second, it must either make specific findings for each element of regarding the December 13, 1994, purchase of crack cocaine.
perjury or at least make a finding that encompasses all of the factual The trial court denied the motion. The following dialogue
predicates for a finding of perjury.” United States v. Sassanelli, 118 F.3d took place at that sidebar and on the record:
495, 501 (6th Cir. 1997) (inner quotes and citations omitted).
6 United States v. Webber No. 98-1708 No. 98-1708 United States v. Webber 11
MR. WILLIAMS: Your Honor, first thing I wanted to If this Court is determined to adhere to the majority rule
mention was that we’ve changed our approach. We no that a trial court is not required to put defendant’s choice to
longer want the entrapment instruction given. Also testify on the record, Defendant argues, then it should apply
[Defendant] is not going to testify. the Third Circuit’s exception to the rule: “[I]n exceptional,
.... narrowly defined circumstances, judicial interjection through
THE COURT: . . . All right. He’s not going to testify? a direct colloquy with the defendant may be required to
MR. WILLIAMS: No, he’s not going to testify. ensure that the defendant’s right to testify is protected.”
.... Pennycooke, 65 F.3d at 12. The Pennycooke court’s
THE COURT: . . . What do you want to do? It’s only illustration of an “exceptional circumstance” was a defendant
2:30. who repeatedly interrupted the trial to express his desire to
MR. WILLIAMS: We’re going to rest. testify and interjected that his attorney was lying when his
THE COURT: Do you want to go right into closing? attorney told the court that the attorney and the defendant had
MR. WILLIAMS: Can you give us about fifteen made a joint decision that the defendant would not testify. Id.
minutes to get organized a little bit? I didn’t expect to at 12 (citing Ortega v. O’Leary, 843 F.2d 258 (7th Cir.
get there this fast. 1988)). This is not such a case.
THE COURT: You may want to have Mr. Weber [sic]
put on the record that he’s decided not to testify, after we In the case at hand, there is no evidence that Defendant
send the jury out. either made an open expression of his desire to testify or had
MR. WILLIAMS: Okay. Very well. any desire whatsoever to take the witness stand in his trial, let
THE COURT: You may want to do that. It would alone any evidence that Defendant’s counsel or the trial court
probably be a good idea. ignored Defendant’s desire to exercise his right to testify. In
MR. WILLIAMS: I think so. fact, Defendant concedes in his Brief to this Court that
(Sidebar concluded.) “before the [court’s] admonition Mr. Webber planned to
testify; shortly after the admonition Mr. Webber changed his
Immediately after the sidebar concluded, the following took mind and decided not to testify.” (Def.’s Br. at 24.) There is
place in open court, on the record, and in the presence of no evidence in the record that Defendant attempted to
Defendant. communicate with and “alert the trial court” to a disagreement
with defense counsel regarding whether Defendant should
THE COURT: All right, the government rests, Mr. take the stand. The trial court had no duty, under the facts
Williams. presented here, to inquire sua sponte whether Defendant was
MR. WILLIAMS: The defense rests, your Honor. knowingly, voluntarily, and intelligently waiving his right to
.... testify. In sum, Defendant’s claim fails.
(Jury exited at 2:32 p.m.)
THE COURT: Okay, about 15, 20 minutes? Next, Defendant argues that the colloquy between the trial
Okay, in that case since Mr. Weber [sic] is not court and Defendant regarding the potential for a sentencing
testifying, I’m going to take out the instructions on the enhancement amounted to an unconstitutional “chilling” of
defendant’s testimony as well as the impeachment of his right to testify. Defendant contends that the trial court
defendant by prior convictions. And I should probably improperly interjected itself into the defense team’s strategic
take out, as well, the entrapment instruction. and tactical decisions and gave him “what was essentially a
MR. WILLIAMS: Yes, your honor. veiled threat to find [him] guilty of perjury and obstruction of
10 United States v. Webber No. 98-1708 No. 98-1708 United States v. Webber 7
A defendant who wants to testify can reject defense THE COURT: Have you had a chance to review the
counsel’s advice to the contrary by insisting on testifying, instructions, Mr. Williams?
communicating with the trial court, or discharging counsel. MR. WILLIAMS: Yes, I’ve had an opportunity to
Joelson, 7 F.3d at 177. At base, a defendant must “alert the review the instructions and I have discussed them with
trial court” that he desires to testify or that there is a Mr. Weber [sic], your Honor.
disagreement with defense counsel regarding whether he THE COURT: Are they satisfactory now with these
should take the stand. Pelzer, 1997 WL 12125 at *2. When changes that we discussed before lunch break and now
a defendant does not alert the trial court of a disagreement, with the changes that I’m making now, to take out the
waiver of the right to testify may be inferred from the entrapment instruction, the instruction on the defendant’s
defendant’s conduct. Waiver is presumed from the testimony and the impeachment by defendant by prior
defendant’s failure to testify or notify the trial court of the convictions.
desire to do so. Joelson, 7 F.3d at 177. MR. WILLIAMS: Yes, your Honor.
THE COURT: Okay. Very good.
In the matter at hand, Defendant urges this Court to reject
the reasoning in our earlier unpublished opinions and the Defendant was not asked personally by the trial court
opinions of the majority of other circuit courts as “fatally whether he wanted to testify or whether he was aware that his
flawed” and hold that waiver of the right to testify--like some attorney, at the sidebar, had waived Defendant’s right to
other fundamental rights--must be3 made on the record by the testify after previously informing the court that Defendant
trial court. We decline to do so. While we recognize that intended to testify. Although the court and defense counsel
trial courts are required to inquire directly of the defendant in discussed in open court Defendant’s decision not to testify
regard to whether the defendant is knowingly and and changes in the jury instructions, Defendant was never
intentionally entering a plea of guilty, waiving a jury trial, or asked to personally comment on this change in trial strategy
foregoing the assistance of counsel, see Ortiz, 82 F.3d at or put his decision not to testify on the record. Defendant was
1070-71 (citing Supreme Court cases), we are convinced that present in court and heard his attorney agree with the trial
the right to testify “qualitatively differs” from those rights in judge’s comments relating to the Defendant not testifying and
that a sua sponte inquiry from the trial judge regarding the the Defendant not proceeding with an entrapment defense.
defendant’s choice to testify might impede on an appropriate Defendant never objected to this defense tactic or attempted
defense strategy, might lead the defendant to believe that to alert the court that he desired to testify.
defense counsel has been insufficient, or might
inappropriately influence the defendant to waive the Fifth The jury returned a verdict of guilty on all four counts on
Amendment right not to testify. See United States v. November 18, 1997. Defendant was sentenced on May 22,
Pennycooke, 65 F.3d 9, 11 (3d Cir. 1995). 1998, and ordered to serve 210 months incarceration
concurrently on each count. Judgment was imposed on May
22, 1998, but not entered until June 16, 1998. Defendant filed
his timely appeal on June 1, 1998.
3
We recognize that our unpublished opinions carry no precedential
weight; they often do, however, carry persuasive weight. See Sheets v.
Moore, 97 F.3d 164, 167 (6th Cir. 1996) (noting that unpublished
opinions carry no precedential weight and have no binding effect on
anyone other than the parties to the action); 6 CIR. R. 206(c) (stating that
only published opinions are binding on subsequent panels).
8 United States v. Webber No. 98-1708 No. 98-1708 United States v. Webber 9
Discussion Joelson, 7 F.3d at 177. The defense counsel’s role is to
advise the defendant whether or not the defendant should take
I. Jurisdiction the stand, but it is for the defendant, ultimately, to decide.
See Pelzer, 1997 WL 12125 at *2 (citation omitted).
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1291 and Federal Rules of Appellate Procedure 3 Although the ultimate decision whether to testify rests with
and 4(b). the defendant, when a tactical decision is made not to have
the defendant testify, the defendant’s assent is presumed.
II. The Right to Testify Joelson, 7 F.3d at 177. This is so because the defendant’s
attorney2 is presumed to follow the professional rules of
Defendant argues that his rights under the Fifth and Sixth conduct and is “strongly presumed to have rendered adequate
Amendments to the Constitution were violated when (1) his assistance” in carrying out the general duty “to advocate the
right to testify on his own behalf was waived by his attorney defendant’s cause and the more particular duties to consult
and, (2) the trial court impermissibly “chilled” his right to with the defendant on important decisions and to keep the
testify. We review de novo whether Defendant’s defendant informed of important developments in the course
constitutional rights were violated at the trial stage of his of the prosecution.” Strickland v. Washington, 466 U.S. 668,
proceedings. 688-90 (1984). Barring any statements or actions from the
defendant indicating disagreement with counsel or the desire
The right of a defendant to testify at trial is a constitutional to testify, the trial court is neither required to sua sponte
right of fundamental dimension and is subject only to a address a silent defendant and inquire whether the defendant
knowing and voluntary waiver by the defendant. See Rock v. knowingly and intentionally waived the right to testify, nor
Arkansas, 483 U.S. 44, 52, 53 n.10 (1987); Pelzer v. United ensure that the defendant has waived the right on the record.
States, 105 F.3d 659 (table), 1997 WL 12125, at *2 (6th Cir. Joelson, 7 F.3d at 177. See also United States v. Ortiz, 82
Jan. 13, 1997); United States v. Joelson, 7 F.3d 174, 177 (9th F.3d 1066, 1069 n.8 (D.C. Cir. 1996) (noting the agreement
Cir. 1993). “The right to testify on one’s own behalf at a of the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh
criminal trial has sources in several provisions of the Circuits that the trial court does not have a duty to sua sponte
Constitution.” Rock, 483 U.S. at 51. It is a right that is conduct an on-the-record colloquy regarding waiver); Knox v.
“‘essential to due process of law in a fair adversary process’” Morris, 908 F.2d 973 (table), 1990 WL 106789, at *1 (6th
and thus falls under the protections of the Fifth and Cir. July 30, 1990) (holding that trial court has no duty to
Fourteenth Amendments. Id. (quoting Faretta v. California, establish waiver on record); United States v. Yarbrough, 896
422 U.S. 806, 819 n.15 (1975)). The right to testify is also F.2d 554 (table), 1990 WL 17263, at *2 (6th Cir. Feb. 27,
found in the Compulsory Process Clause of the Sixth 1990) (same).
Amendment, which grants a defendant the right to call
“witnesses in his favor”--which, of course, would include
himself. Id. at 52 (citation omitted). In addition, the right to
testify is “a necessary corollary to the Fifth Amendment’s
2
guarantee against compelled testimony.” Id. See, e.g., ABA MODEL RULES OF PROFESSIONAL CONDUCT RULE
1.2(a) & cmt. (1995) (“In a criminal case, the lawyer shall abide by the
The right to testify is personal to the defendant, may be client’s decision . . . whether the client will testify.”); ABA STANDARDS
FOR CRIMINAL JUSTICE 4-5.2(a)(iv) (3d ed. 1993) (“whether to testify in
relinquished only by the defendant, and the defendant’s his or her own behalf” is a decision “to be made by the accused after full
relinquishment of the right must be knowing and intentional. consultation with counsel”).