United States v. Eric Powell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0025p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> Nos. 14-2506/2507/15-1724
v. │
│
│
CARLOS ELLIS POWELL (14-2506); ERIC JEROME │
POWELL (14-2507); EARNEST LEE PROGE (15-1724), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:12-cr-20052—Stephen J. Murphy III, District Judge.
Argued: August 3, 2016
Decided and Filed: February 6, 2017
Before: GUY, BOGGS, and MOORE, Circuit Judges
_________________
COUNSEL
ARGUED: N.C. Deday LaRene, LARENE & KRIGER, P.L.C., Detroit, Michigan, for
Appellant in 14-2506. Domnick J. Sorise, Detroit, Michigan, for Appellant in 14-2507. Kevin
M. Carlson, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for
Appellant in 15-1724. Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit,
Michigan, for Appellee. ON BRIEF: N.C. Deday LaRene, LARENE & KRIGER, P.L.C.,
Detroit, Michigan, for Appellant in 14-2506. Domnick J. Sorise, Detroit, Michigan, for
Appellant in 14-2507. Kevin M. Carlson, Melissa M. Salinas, UNIVERSITY OF MICHIGAN
LAW SCHOOL, Ann Arbor, Michigan, for Appellant in 15-1724. Andrew Goetz, UNITED
STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. Carlos Ellis Powell, White
Deer, Pennsylvania, pro se.
GUY, J., delivered the opinion of the court in which BOGGS, J, joined, and MOORE, J.,
joined in part. MOORE, J. (pp. 28–36), delivered a separate opinion concurring in part and
dissenting in part.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 2
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. Defendants Carlos Powell, Eric Powell, and
Earnest Proge, Jr., were tried together and convicted of offenses arising out of a large-scale
narcotics distribution operation in Detroit, Michigan.1 First, all three defendants challenge the
district court’s orders denying their motions to suppress evidence derived from: (1) the
collection of cellular-phone identification and location information; (2) the use of a GPS tracking
device; and (3) the monitoring of video cameras installed on nearby utility poles. Second,
raising Sixth Amendment claims, Carlos Powell argues that he was denied his right to represent
himself, and Earnest Proge contends that he was denied counsel of his choice. Third, Earnest
Proge raises separate claims of error, including challenges to the sufficiency of the evidence, the
jury instructions, and an error in the judgment entered against him. Finally, Carlos Powell has
raised additional claims in a pro se brief. For the reasons that follow, we affirm the denial of the
defendants’ motions to suppress; affirm the judgments entered against Carlos and Eric Powell,
respectively; and vacate the judgment and remand for further proceedings consistent with this
opinion with respect to Earnest Proge only.
I.
Overwhelming evidence established that Carlos Powell ran a lucrative narcotics
distribution conspiracy and a related money-laundering conspiracy with his brother Eric Powell
in Detroit, Michigan. The Powells’ drug operation largely evaded detection until a DEA
investigation in Arizona snared a middleman named Ted Morawa. Morawa had received large
quantities of marijuana, cocaine, and heroin from Mexico and arranged or facilitated the
transportation of drugs and cash to and from customers in the Midwest. Morawa decided to
cooperate with the government in early 2010, and the information he provided included
identifying Carlos Powell, a/k/a “50,” as his “number one” customer. At trial, Morawa described
meeting with Carlos Powell a number of times and arranging for large quantities of marijuana,
1
Kenneth Daniels was also tried with these defendants, and his appeal was heard separately (No. 14-2242).
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 3
cocaine, and heroin to be transported to him beginning in 2006. The investigation that followed
led to the charges in this case.
Starting in March 2010, DEA agents in Detroit gathered evidence by: obtaining warrants
for prospective real-time cell-phone location data; using a cell-site simulator to identify unknown
cell phones used by Carlos Powell, Eric Powell, and Juan Valle; placing a GPS tracking device
on Eric Powell’s Chevy Silverado pickup truck; and monitoring three video cameras installed on
public utility poles. The evidence at trial included recordings from pole cameras installed near
three “stash” locations: a house on Conley Street in Detroit, a house on Stricker Avenue in
Eastpointe, and a warehouse on Sherwood Avenue in Center Line, Michigan.
The DEA’s surveillance—electronic and in-person—led agents to request that the
Michigan State Police make four traffic stops that resulted in the seizure of drugs and/or cash on
June 23, June 28, September 17, and October 22, 2010. Defendants did not challenge the
validity of the stops themselves, but argued that the evidence obtained as a result of those stops
should be suppressed as fruit of earlier illegal searches or seizures.
On June 23, ten kilograms of heroin was seized from Benny Whigham’s Volkswagen
Passat when he was stopped as he returned from Chicago traveling in tandem with Eric Powell
and Earnest Proge in Eric’s Silverado. The three men had been under surveillance in Chicago,
and both vehicles were followed back into Michigan before Whigham was stopped. On June 28,
Juan Valle met Carlos Powell at the Conley Street location and Valle was seen putting something
in his Nissan Murano before driving away. Valle was followed and stopped, and $259,000 in
cash was found in a hidden compartment of the Nissan.
On September 17, $2.2 million in cash was seized from a Ford Flex driven by Earnest
Proge. Earlier that day, Carlos and Eric Powell were observed at the Stricker Avenue location.
After Carlos left, Eric came out wearing latex gloves and put three suitcases into a Ford Flex.
Eric Powell drove the Flex to the warehouse on Sherwood Avenue, where he was joined by
Proge and another man. Proge later drove away in the Flex, while Eric Powell and the other man
followed in the Silverado. When the police stopped Proge, he acted very nervous, said he did not
have his license, and drove away—narrowly missing an officer and leading police on a high-
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 4
speed chase—before he was finally stopped. The Silverado exited the highway after Proge was
first stopped, and then sped away to follow the chase when Proge fled from the officers. Proge
told the officers that there was a lot of cash in the car, but that he was only the driver. Officers
seized three locked suitcases from the Flex that contained $2.2 million in cash, a drug ledger, and
a newspaper article about a drug arrest. Carlos Powell’s fingerprints were on the article, and Eric
Powell’s print was on the packaging.
On October 22, suitcases containing $2 million in cash, a ledger, and 12 kilograms of
cocaine were seized from a Toyota driven by Margarita Lopez de Vallejo. She testified that she
delivered drugs and transported money for a drug supplier named Paul Rodriguez. Several days
before the stop, she delivered drugs to Eric Powell and then waited at a hotel in Ann Arbor. On
the day of the stop, Eric Powell was followed from the Stricker Avenue location to the hotel,
where Proge joined him and helped transfer the suitcases into a waiting Toyota. When de
Vallejo left the hotel in the Toyota, she was followed and stopped by the Michigan State Police.
Finally, nine search warrants were executed on November 17, 2010. From the Stricker
Avenue location alone, the DEA seized five kilograms of heroin, $5 million in cash, several
loaded firearms, seven cell phones, money counters, drug ledgers, and digital scales. Searches of
three residences—two belonging to Carlos Powell and one belonging to Eric Powell—resulted in
the seizure of firearms, luxury cars, expensive jewelry, and a total of more than $3 million in
cash. Also, two firearms were seized from Earnest Proge’s residence. Again, defendants did not
challenge the validity of those searches, but argued that the warrants were obtained with
evidence derived from earlier unlawful searches or seizures.
The initial indictment was returned in January 2012, and motions to suppress evidence
were filed in April and November 2012. In January 2013, fourteen defendants—including
Carlos Powell, Eric Powell, and Earnest Proge, Jr.—were charged in a 29-count superseding
indictment with various drug-trafficking, money-laundering, and firearm offenses. After
extensive briefing and several evidentiary hearings, the district court denied defendants’ motions
to suppress for the reasons stated in the orders it entered on January 4, May 3, and July 23, 2013.
Trial was scheduled to commence in February 2014, but a stipulated 60-day extension of the
pretrial and trial dates was entered into in January 2014.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 5
In February 2014, pro se documents were filed on behalf of Carlos Powell and Eric
Powell asserting that they were “trust property” of the Moorish Science Temple of America and
claiming to revoke their citizenship and terminate the district court’s power. Those filings were
stricken by the district court because they had “no legal authority, were not filed by Defendants’
attorneys, and [did] not bear on this case.” Referencing similar prior filings in a related matter,
the district court cautioned that “any further such documents will be dealt with more severely.”
During the final pretrial conference held on March 26, 2014, the district court severed the
trial of three of the defendants and emphasized that trial of the remaining defendants would
commence as scheduled on April 29, 2014. It was during this conference that Carlos Powell’s
retained counsel gave the first indication that his client wanted to represent himself. The district
court offered to conduct the required inquiry then, or whenever counsel would like, and agreed to
defense counsel’s suggestion that the inquiry be made after he had a chance to talk with his
client. Then Earnest Proge’s retained counsel asked to make a record of her client’s decision to
reject the government’s plea offer and stated that her client wanted new counsel. The district
court questioned Proge about his decision to reject the plea offer, extended the time for Proge (or
any of the defendants) to enter a guilty plea, and invited Proge’s attorneys to file a motion to
withdraw as counsel.
Carlos Powell’s request to proceed pro se was heard and denied during the continued
conference held on April 10. The government sought reconsideration of that ruling, asking that
Powell be allowed to represent himself with the aid of standby counsel. Although the motion
was denied, it resulted in an order that clarified the basis for the denial of Powell’s request to
represent himself. Earnest Proge’s attorneys filed the anticipated motion to withdraw on April 3,
representing that there had been a complete breakdown in the attorney-client relationship. The
district court heard from Proge and his counsel during a hearing on April 16, and denied the
motion in an order entered April 22. On reconsideration, the district court allowed only one of
Proge’s attorneys to withdraw and indicated that the other attorney could be appointed to
represent him at trial. Trial proceeded as scheduled on April 29, 2014.
At the conclusion of the ten-day trial, but while the jury was still deliberating, Carlos
Powell, Eric Powell, and Earnest Proge violated their bond and fled the jurisdiction. The jury
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 6
returned verdicts finding all three defendants guilty of conspiracy to possess with intent to
distribute and to distribute heroin, cocaine, and marijuana (Count 1). The defendants were also
convicted of possession with intent to distribute the following: one kilogram or more of heroin
on June 23 (Eric Powell and Earnest Proge) (Count 2); five kilograms or more of cocaine on
October 22 (Carlos and Eric Powell) (Count 3); and one kilogram or more of heroin on
November 17 (Carlos Powell) (Count 4). Carlos Powell and Earnest Proge were convicted of
possession of a firearm in furtherance of a drug-trafficking offense and being a felon in
possession of a firearm, respectively (Counts 5 and 8). Finally, all three defendants were found
guilty of conspiracy to launder the proceeds of the drug trafficking (Count 10). Other
substantive money-laundering charges were dismissed before trial, and the jury acquitted Earnest
Proge of the charge of possession with intent to distribute cocaine on October 22 (Count 3).2
The United States Marshal Service apprehended Eric Powell in Atlanta, Georgia, and
arrested Carlos Powell and Earnest Proge within a few weeks of each other in St. Louis,
Missouri. The defendants were returned to Michigan for sentencing. Carlos and Eric Powell
received concurrent life sentences on the drug and money-laundering offenses, and Carlos
Powell also received a consecutive five-year term of for the firearm conviction. Earnest Proge
was sentenced to concurrent terms of imprisonment of 120, 240, and 360 months, but, as the
government concedes, the judgment incorrectly stated that he had been found guilty on Count 3.
These consolidated appeals followed.3
II. Motions to Suppress Evidence
On appeal from the denial of a motion to suppress, “we review the district court’s
findings of fact for clear error and its conclusions of law de novo.” United States v. Hurst, 228
F.3d 751, 756 (6th Cir. 2000). In doing so, the evidence must be considered “in the light most
likely to support the district court’s decision.” Id. (quoting United States v. Navarro-Camacho,
2
Daniels did not flee and was convicted of one count of structuring financial transactions to evade reporting
requirements in connection with the purchase of a luxury car in the name of Carlos Powell (Count 15).
3
The life sentences for Carlos and Eric Powell were announced at sentencing. Although the written
judgment provided a twenty-year sentence to be served concurrently for Count 10, an oral sentence controls when it
conflicts with the written sentence. See United States v. Denny, 653 F.3d 415, 421 (6th Cir. 2011); United States v.
Penson, 526 F.3d 331, 334 (6th Cir. 2008).
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 7
186 F.3d 701, 705 (6th Cir. 1999)). For the reasons discussed, we affirm the district court’s
denial of the motions to suppress evidence.
A. Standing
The Fourth Amendment’s exclusionary remedy “encompasses both the ‘primary evidence
obtained as a direct result of an illegal search or seizure’ and, relevant here, ‘evidence later
discovered and found to be derivative of an illegality,’ the so-called ‘fruit of the poisonous
tree.’” Utah v. Streiff, 136 S. Ct. 2056, 2061 (2016) (quoting Segura v. United States, 468 U.S.
796, 804 (1984)); see also Wong Sun v. United States, 371 U.S. 471, 488 (1963). However,
because Fourth Amendment rights are personal, suppression of evidence as “the product of a
Fourth Amendment violation can be successfully urged only by those whose rights were violated
by the search itself, not by those who are aggrieved solely by the introduction of damaging
evidence.” United States v. Padilla, 508 U.S. 77, 81-82 (1993) (per curiam) (“Co-conspirators
and codefendants have been accorded no special standing.”).
The district court found that Carlos and Eric Powell had “standing” to assert the alleged
Fourth Amendment violations by virtue of their co-ownership of the relevant phones, vehicles,
and property, but that Earnest Proge did not. We assume, since the government does not argue
otherwise, that the Powells may pursue the Fourth Amendment claims they press on appeal.
Proge contends that he had standing to challenge his arrest on September 17 as the product of
“evidence unlawfully gathered earlier that day” through use of the GPS device on Eric Powell’s
vehicle and video surveillance outside the Sherwood Avenue warehouse. Because we find that
the district court did not err in denying the Powells’ motions to suppress evidence—including
evidence derived from the GPS tracking and the pole cameras—we need not decide whether
Proge met his burden to establish standing to challenge his seizure as fruit of the poisonous tree.
See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978); United States v. Smith, 263 F.3d 571, 582
(6th Cir. 2001).
B. Cell-Phone Location Information
The government obtained five judicially authorized warrants between March 11 and
October 5, 2010, which permitted the government to receive “real time” cell-phone location
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 8
information—including cell-site location information (CSLI) and GPS data—for six cell-phone
numbers for periods of 30 or 45 days each. Each warrant required the cellular service provider to
initiate a signal to the target cell phone and to report the cell phone’s location to the DEA when
requested. The first of the warrants sought real-time location information for a known cell-
phone number subscribed to by Carlos Powell. The district court found that the affidavit in
support of that warrant included “informant testimony, confirmed by independently verified
evidence, that Carlos Powell was a major player in a drug trafficking ring in Detroit.” United
States v. Powell, 943 F. Supp. 2d 759, 782 (E.D. Mich. 2013). The affidavit stated that obtaining
Carlos Powell’s cell-phone location information would assist in finding him and identifying his
associates, the locations used to store narcotics, and the assets derived from the narcotic sales.
Id.
Importantly, the government does not ask us to decide whether the long-term tracking of
cell phone location information in this case should be deemed a search for purposes of the Fourth
Amendment. The possibility that it could constitute a search was suggested in dicta in United
States v. Skinner, 690 F.3d 772, 780 (6th Cir. 2012) (holding short-term cell-phone tracking was
not a search), cert. denied, 133 S. Ct. 2851 (2013), and was not resolved in United States v.
Carpenter, 819 F.3d 880, 886-90 (6th Cir. 2016) (holding that request for historical CSLI
information was not a search), petition for cert. filed, No. 16-402 (U.S. Sept. 26, 2016). Indeed,
because the government took the precaution of securing warrants for cell-phone location
information in this case, it is not necessary to decide that issue as long as there was either
probable cause or the Leon good-faith exception applied.4
Probable cause supports a search warrant when the affidavit demonstrates “a fair
probability that contraband or evidence of a crime will be found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983). The district court detailed the information in Agent Donovan’s
March 11 affidavit and concluded that it provided a substantial basis for the magistrate judge to
find probable cause to issue the warrant “under traditional probable cause analysis.” Powell,
4
Three other circuits have also concluded that use of historical cell-phone location information is not a
search. See United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc), petitions for cert. filed, Nos. 16-
6308/6694 (U.S. Sept. 26, 2016; Oct. 27, 2016); United States v. Davis, 785 F.3d 498 (11th Cir.) (en banc), cert.
denied, 136 S. Ct. 479 (2015); United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014), cert. denied, 135 S. Ct. 1548
(2015).
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 9
943 F. Supp. 2d at 782. Also, despite finding that the affidavit would not satisfy its own newly
articulated probable-cause standard, the district court denied defendants’ motions to suppress
because the DEA agents had relied on the judicially issued warrants in good faith. Id. at 775-84;
see also id. at 780 (acknowledging that “no authoritative court has stated plainly that [the district
court’s proposed] showing is required”). As such, the first hurdle defendants face on appeal is
the good-faith exception.
Because the purpose of the exclusionary rule is to deter Fourth Amendment violations,
Herring v. United States, 555 U.S. 135, 140-41 (2009), courts will not suppress evidence
“obtained in objectively reasonable reliance on a subsequently invalidated search warrant,”
United States v. Leon, 468 U.S. 897, 922 (1984). Asserting a Franks claim, defendants argued
that the Leon good-faith exception should not apply because Agent Donovan intentionally or
recklessly omitted material information from the affidavit he submitted in support of the March
11 warrant. See id. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)). Defendants point
specifically to the following statements from later affidavits submitted in support of other
warrants: namely, that it is “common for individuals involved in narcotics trafficking to obtain
cellular telephones in nominee or fictitious names to avoid detection by law enforcement” and to
“very often maintain one cellular telephone to communicate with their close associates and/or
drug suppliers and . . . a second, third, or even a fourth cellular telephone to communicate with
customers, and/or outside associates.” Defendants contend that these statements would have
lessened the likelihood that Carlos Powell could be expected to use a cell phone subscribed to in
his own name to conduct drug-related activities.
However, as the government aptly responds, this allegedly omitted information would not
have been material to the magistrate judge’s probable-cause determination. See United States v.
Rose, 714 F.3d 362, 370 (6th Cir. 2013) (citing Franks, 438 U.S. at 171-72). The March 11
warrant was sought in order to determine Carlos Powell’s location by tracking his personal cell
phone. Whether Carlos had other cell phones (which he apparently did), or used those other cell
phones to conduct drug-related business (which he apparently did), would not undermine the
finding of probable cause to believe that Carlos Powell was involved in an ongoing drug-
trafficking conspiracy and that following him would yield evidence of that conspiracy. Having
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 10
failed to make “a substantial preliminary showing” that would have entitled defendants to a
Franks hearing, this claim cannot overcome the good-faith exception. Franks, 438 U.S. at 155.
Defendants also argue that the March 11 warrant was “overbroad” because it was based
on probable cause to believe that the cell-phone location information would lead to evidence of a
crime—not that the location information itself would be evidence of a crime. But, the warrant
issued on a finding of probable cause to believe that evidence of drug trafficking would be found
by tracking the location of Carlos Powell’s cell phone. The district court rejected defendants’
argument that the affidavit was so lacking in indicia of probable cause as to render reliance on it
objectively unreasonable. Powell, 943 F. Supp. 2d at 783-84 (citing Leon, 468 U.S. at 914).
Defendants’ assertion that the warrant was “facially deficient” is equally unavailing. See Leon,
468 U.S. at 923 (“[A] warrant may be so facially deficient—i.e., in failing to particularize the
place to be searched or the things to be seized—that the executing officers cannot reasonably
presume it to be valid.”). The district court did not err in finding that evidence derived from the
March 11 warrant was admissible at trial and did not taint the probable cause underlying the
second and subsequent cell-phone location warrants.
C. Cell-Phone Identification Information
DEA agents obtained a series of pen-register/trap-and-trace orders between March 11 and
November 4, 2010, which purported to authorize the use of a cell-site simulator device to detect
and record cell-phone identification information (such as the phone number, serial number, or
mobile equipment identifiers) for unknown cell phones that were being used by Carlos Powell,
Eric Powell, and Juan Valle, respectively. Each of the applications requested authorization to
use a cell-site simulator in the vicinity of the target individual in order to detect the radio signals
autonomously transmitted by the target cell phone (and other cell phones in the area) to identify
the phone to the network for authentication. That process would be repeated at different
locations until the target cell-phone number was identified—here, that included the identification
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 11
of several prepaid cell phones subscribed to in fictitious names using a post office box address in
California.5
Defendants assert that the identification information was obtained “illegally”—and
therefore evidence derived from that information should be suppressed—because the use of a
cell-site simulator to capture “autonomously” transmitted information could not be authorized
under the pen-register/trap-and-trace statute. The statute, as amended, defines a “pen register” as
“a device or process which records or decodes dialing, routing, addressing, or signaling
information transmitted by an instrument or facility from which a wire or electronic
communication is transmitted, provided, however, that such information shall not include the
contents of any communication.” 18 U.S.C. § 3127(3); see also § 3127(1) (incorporating
definitions from 18 U.S.C. § 2510). Defendants contend that this definition should be interpreted
restrictively to include the recording or decoding of information only if it is transmitted with a
wire or electronic communication (i.e., only when sending a text or making a call). Whether the
statute should be construed as defendants urge, however, is an issue of first impression that is
immaterial to the suppression issue before us.
As the district court recognized, the exclusionary rule is not an available remedy for a
statutory violation unless the Constitution requires it or the statute expressly provides for it. See
Carpenter, 819 F.3d at 890 (citing United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006));
United States v. Page, 232 F.3d 536, 541 (6th Cir. 2000). Defendants clarified in reply that they
do not claim that the cell-phone identification information was obtained in violation of the
Fourth Amendment. See also Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (holding use of
pen register to record dialed calls was not a search); Carpenter, 819 F.3d at 886-90 (holding
collection of CSLI was not a search); United States v. Bah, 794 F.3d 617, 630-31 (6th Cir.), cert.
denied, 136 S. Ct. 561 (2015) (holding officer’s scan of magnetic strip on credit card for
identifiers was not a search). Nor does the pen-register/trap-and-trace statute itself provide for
the suppression of evidence as a remedy for its violation. See United States v. Thompson,
5
Defendants also claimed that the DEA used the cell-site simulator to collect cell-phone location
information without obtaining a warrant (i.e., location tracking). However, the district court found no evidence that
the DEA had done so, and defendants have not shown that the district court’s finding in that regard was clearly
erroneous.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 12
936 F.2d 1249, 1250-51 (11th Cir. 1991) (holding suppression not available remedy for violation
of 18 U.S.C. § 1321 et seq.). We agree with the district court that use of a cell-site simulator to
identify the six unknown cell phones did not undermine the probable cause supporting the
second and subsequent warrants for the cell-phone location information.6
D. Pre-Jones Warrantless GPS Vehicle Tracking
Defendants moved to suppress evidence derived from the warrantless GPS tracking of
Eric Powell’s Chevrolet Silverado between June 10 and November 17, 2010. Although
considerable evidence of drug trafficking had been uncovered by June 2010, Agent Donovan
testified that a warrant was not obtained because he believed—based on direction from superiors
at the DEA and advice from the United States Attorney’s Office—that one was not required by
the Fourth Amendment. Two years later, the Supreme Court in Jones held that placement of a
GPS tracking device on a defendant’s vehicle was a physical intrusion that constituted a search
for purposes of the Fourth Amendment. United States v. Jones, 132 S. Ct. 945, 948-51 (2012).7
Here, without deciding whether such GPS tracking could ever be reasonable in the
absence of a warrant (a question also not decided in Jones), the district court assumed that the
DEA’s tracking of the GPS device placed on the Silverado violated the Fourth Amendment. The
district court nonetheless denied the motions to suppress based on a detailed review of the facts
surrounding each traffic stop and search. See Powell, 943 F. Supp. 2d at 785-91 (applying
independent-source, inevitable-discovery, and/or attenuation doctrines). Because it was not
necessary to its decision, the district court declined to reach the question of whether the good-
faith exception would also apply. Id. at 787 n.11. With the benefit of this court’s intervening
decision in Fisher, we do the opposite and affirm on the basis of the good-faith exception. See
United States v. Fisher, 745 F.3d 200, 201 (6th Cir.), cert. denied, 135 S. Ct. 676 (2014).
6
The DOJ has since issued a policy regarding the use of cell-site simulators in criminal investigations that,
among other things, adheres to the view that the pen-register statute applies but adopts a general practice of
obtaining a warrant for the use of a cell-site simulator. See DOJ Policy Guidance: Use of Cell-Site Simulator
Technology, U.S. Dep’t Just. (Sept. 3, 2015), https://www.justice.gov/opa/file/767321/download.
7
The Jones majority did not decide whether tracking the vehicle over a 28-day period might also have
violated an objectively reasonable expectation of privacy, although Justice Alito’s concurrence suggested that it
might. Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment); see also id. at 957 (Sotomayor, J.,
concurring) (noting “it may be necessary to reconsider the premise that an individual has no reasonable expectation
of privacy in information voluntarily disclosed to third parties”).
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 13
The exclusion of evidence obtained in violation of the Fourth Amendment is “intended
‘to deter future Fourth Amendment violations.’” Id. at 203 (quoting Davis v. United States, 564
U.S. 229, 236-37 (2011)). “[B]ecause the extent to which the exclusionary rule is justified by
these deterrence principles varies with the culpability of the law enforcement conduct, the cost-
benefit analysis should focus on the ‘flagrancy of the police misconduct’ and on whether the
police misconduct was ‘deliberate, reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence.’” Id. (quoting Herring, 555 U.S. at 143-44).
“When police act in good faith, however, ‘conduct[ing] a search in objectively reasonable
reliance on binding appellate precedent, the exclusionary rule does not apply.’” Id. (alteration in
original) (quoting Davis, 564 U.S. at 249-50).
In Fisher, this court held that the officers had an objectively reasonable good-faith belief
that the warrantless GPS tracking they conducted in May and June of 2010 “was lawful and was
sanctioned by then binding appellate precedent.” Id. at 201. Specifically, at the time of the GPS
tracking in Fisher, “the Supreme Court had strongly indicated, and the Sixth Circuit and three
other circuits had held, that the warrantless use of electronic tracking devices was permissible.”
Id. at 203. Also, as the Seventh Circuit has recognized, “circuits that did not have their own GPS
precedent prior to Jones have uniformly concluded that [the Supreme Court’s decision in] Knotts
is binding appellate precedent for the purpose of Davis’s good-faith exception, even when police
officers’ GPS monitoring lasted for a longer period of time.” United States v. Taylor, 776 F.3d
513, 518 n.2 (7th Cir. 2015) (per curiam) (citing cases); see also United States v. Knotts,
460 U.S. 276 (1983) (holding that monitoring of a signal from a beeper was not a search). Here,
the GPS tracking took place during roughly the same period as in Fisher, and the DEA agents
acted in objectively reasonable reliance on the then binding appellate precedent. Finding that the
good-faith exception applies, we affirm the denial of the defendants’ motion to suppress
evidence derived from the warrantless GPS vehicle tracking in this case.
E. Utility-Pole Camera Surveillance
Finally, defendants challenged evidence obtained as a result of the warrantless video
surveillance conducted through the installation of video cameras on three public utility poles for
periods of up to 90 days each. One camera was installed near the Conley Street location in April
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 14
2010, and the other two cameras were installed near the Stricker Avenue location and the
warehouse on Sherwood Avenue in August 2010. There is no dispute that all three of those
locations were used in connection with the defendants’ drug operation and were not places where
the defendants resided. The district court denied defendants’ motions to suppress the video
recordings (and evidence derived from them) because there was neither physical intrusion nor
violation of any reasonable expectation of privacy. Guided by this court’s recent decision in
Houston, we affirm the district court’s denial of the defendants’ motion to suppress this
evidence. United States v. Houston, 813 F.3d 282 (6th Cir.), cert. denied, 137 S. Ct. 567 (2016).
The court in Houston held that remote surveillance of a rural farm with a utility-pole
camera for a period of ten weeks without a warrant “did not violate Houston’s reasonable
expectations of privacy because the camera recorded the same view of the farm as that enjoyed
by passersby on public roads.” Id. at 285. This court emphasized that “the Fourth Amendment
does not ‘preclude an officer’s observations from a public vantage point where he has a right to
be and which renders the activities clearly visible.’” Id. at 288 (quoting California v. Ciraolo,
476 U.S. 207, 213 (1986)). Further, the court rejected the claim that the length of the period of
monitoring made the surveillance constitutionally unreasonable, explaining that law enforcement
may use technology to augment their activities and that it is the possibility—not the
practicability—of in-person surveillance from a public vantage point that is critical. Id. at 288-
90; but see id. at 296-97 (Rose, J., concurring) (finding harmless error).
The district court reviewed the evidence—including photographs of the properties and
video footage taken by the pole cameras—and found that each of the cameras viewed areas that
were clearly visible from a public vantage point. Defendants argue that the camera at the Conley
Street location looked into an area between the house and an unattached garage. However, the
district court specifically found that this camera was positioned looking over a half-solid, half-
lattice array, “to a location where the public could easily see from another vantage point.” With
respect to the Stricker Avenue location, the district court found the pole camera observed a
driveway that was open and accessible to public view. Finally, the district court found that the
pole camera outside the Sherwood Avenue warehouse viewed a common yard between buildings
that was “open to many directions and surrounded by roads and alleyways” and had no
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 15
obstructions that would prevent someone from observing the defendants “comings and goings.”
See, e.g., United States v. Wymer, 654 F. App’x 735, 743-44 (6th Cir. 2016) (holding warrantless
surveillance of commercial property from utility-pole cameras that recorded for five months was
not a search), cert. denied, _ S. Ct. _, 2017 WL 276211, 2017 WL 276212 (Jan. 23, 2017).
Defendants have not demonstrated that those findings were clearly erroneous.
We affirm the district court’s denial of the defendants’ motions to suppress evidence.
III. Request for Self-Representation
Carlos Powell’s claim that he was deprived of his Sixth Amendment right to self-
representation asserts structural error for which harm need not be shown in order to reverse.
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). There is uncertainty in this circuit
concerning the standard for reviewing such claims. See United States v. Evans, 559 F. App’x
475, 478 (6th Cir. 2014). Decisions denying a defendant’s request for self-representation have
been reviewed de novo and for abuse of discretion. See, e.g., United States v. Jones, 489 F.3d
243, 247 (6th Cir. 2007); Robards v. Rees, 789 F.2d 379, 383-84 (6th Cir. 1986). We need not
resolve this uncertainty, however, because we would affirm the district court under either
standard of review. See United States v. Pryor, 842 F.3d 441, 448 (6th Cir. 2016); United States
v. Clark, 774 F.3d 1108, 1112 (7th Cir. 2014).8
A. Faretta
The Sixth Amendment guarantees a criminal defendant the right to counsel, as well as the
corollary right to waive counsel and proceed pro se even when the court believes that it would
not be advisable. Faretta v. California, 422 U.S. 806, 807, 819-20 (1975). A defendant’s waiver
of the right to counsel must be made knowingly, intelligently, and voluntarily. Iowa v. Tovar,
541 U.S. 77, 87-88 (2004); see also United States v. Martin, 25 F.3d 293, 295 (6th Cir. 1994).
As a result, before a defendant may be deemed to have validly waived the right to counsel, he
must be warned specifically of the “dangers and disadvantages of self-representation.” Faretta,
8
Under a de novo standard, we review the district court’s legal conclusions de novo and the underlying
factual findings for clear error. United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004); see also United States v.
Bush, 404 F.3d 263, 270 (4th Cir. 2005); United States v. Mackovich, 209 F.3d 1227, 1236 (10th Cir. 2000).
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 16
422 U.S. at 835; see also Hill v. Curtin, 792 F.3d 670, 677-78 (6th Cir.) (en banc), cert. denied,
136 S. Ct. 593 (2015). This court has instructed district judges to “ask the defendant a series of
questions drawn from, or substantially similar to, the model inquiry set forth in the Bench Book
for United States District Judges.” United States v. McBride, 362 F.3d 360, 366 (6th Cir. 2004).
The model inquiry is to be followed by “a strong admonishment that the court recommends
against the defendant trying to represent himself or herself.” United States v. Williams, 641 F.3d
758, 767 (6th Cir. 2011).
But, a defendant’s right to self-representation “is not absolute.” Martinez v. Court of
Appeal of Cal., 528 U.S. 152, 161 (2000); see also Indiana v. Edwards, 554 U.S. 164, 171
(2008) (citing cases). “[T]he government’s interest in ensuring the integrity and efficiency of the
trial at times outweighs the defendant’s interest in acting as his own lawyer.” Martinez, 528 U.S.
at 162. A defendant must assert the right to self-representation clearly, unequivocally, and in a
timely manner, and “courts will balance any such assertion against considerations of judicial
delay.” Martin, 25 F.3d at 295-96. Even a clear request made prior to trial may be denied when
it “is merely a tactic to secure a delay in the proceeding.” Robards, 789 F.2d at 383 (noting that
the defendant in Faretta “had a genuine inclination to conduct his own defense”). In assessing
the facts and circumstances of a particular case, the trial judge is “in a unique position to balance
the defendant’s Sixth Amendment right against delay, defense gamesmanship, and other
practical concerns.” United States v. Cunningham, 564 F. App’x 190, 194 (6th Cir. 2014). That
includes “distinguish[ing] between a manipulative effort to present particular arguments and a
sincere desire to dispense with the benefits of counsel.” Halder v. Tibals, 561 F. App’x 454, 464
(6th Cir. 2014) (quoting United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir. 2000)); see also
United States v. Bush, 404 F.3d 263, 271-72 (4th Cir. 2005).
B. Analysis
Carlos Powell retained counsel at the time of his indictment and did not indicate a desire
to represent himself until the day of the final pretrial conference. At defense counsel’s
suggestion, and without objection from Powell, the district court agreed to conduct the required
inquiry after counsel had a chance to talk with his client. During the continued conference, the
district court reiterated that no continuance would be granted and confirmed that Powell was
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 17
asserting his right to represent himself. There is no dispute that the colloquy that followed
complied with Faretta and was consistent with the model inquiry required by this court.
In ruling on the record, however, the district court denied Powell’s request in reliance on
inapposite case law and a balancing of factors that were inapplicable to an asserted right to self-
representation. The government moved for reconsideration “out of an abundance of caution
concerning the risk of this becoming an issue on appeal,” asking that Powell be allowed to
represent himself with the aid of standby counsel. Powell makes much of that motion on appeal,
but we view it as reflecting the government’s legitimate attempt to hedge against the very claim
of structural error being made here. In fact, the motion resulted in an order that clarified the
basis for the district court’s decision. Specifically, the district court assumed that the request was
timely, but found that the “colloquy and surrounding circumstances convinced [it] that Powell’s
request was not made in good faith but was intended as a tactic to delay the trial.” It is that order
we must review.
Powell contends that his waiver of the right to counsel was improperly rejected because
the arguments he wanted to make were deemed “meritless.” It is true that a defendant’s lack of
legal skill or knowledge will not prevent him from competently or intelligently waiving his right
to counsel. Faretta, 422 U.S. at 835; see also Godinez v. Moran, 509 U.S. 389, 400 (1993) (“[A]
criminal defendant’s ability to represent himself has no bearing on his competence to choose
self-representation.”). Nor is a defendant prevented from competently waiving his right to
counsel because he “articulate[s] beliefs that have no legal support.” United States v. James, 328
F.3d 953, 955 (7th Cir. 2003) (upholding waiver of counsel by a defendant whose defense was
based on meritless Moorish Science Temple legal beliefs). In James, however, the issue arose
because the defendant rejected appointed counsel, represented himself at trial, and then claimed
on appeal that he should not have been allowed to proceed pro se because his beliefs were
meritless. Here, in contrast, the challenged statements by the district court were central to the
warning required by Faretta in an attempt to impress upon Powell the perils of dispensing with
counsel in order to re-file documents that would not be considered.
Specifically, the district court inquired into the circumstances of Powell’s request and
determined that it did not arise out of conflict or dissatisfaction with his retained counsel of more
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 18
than two years. Rather, Powell explained: “It’s particular documents I need to file, and also you
stated that the attorney didn’t file the documents so you’re striking them.” Everyone understood
Powell to be referring to the stricken documents from the Moorish Science Temple of America.
The district court explained to Powell that the stricken documents would not be considered
because they were “meritless” and “irrelevant” to the substance of his case.9
That is, since Powell’s request was expressly premised on his desire to file those
documents, the district court asked:
Now, if I hear you correctly, you’re saying in order to file documents that
may have a very negative impact on your case and get that opportunity, you want
to fire your lawyer. And then the additional consequence[] is to have this trial . . .
without him at your side because it’s so important for you to file these documents.
Is that what you’re saying?
Powell replied that he had “Constitutional issues,” and asked, “So how else will I get them
filed?” The district court told Powell that his counsel’s unwillingness to file those documents
should tell him that he “may not have a real good Constitutional argument there.” Asked again
whether he wanted to fire his attorney in order to file documents that had “no legal significance,”
Powell stated that his “life was on the line” and he wanted to present himself the best way he
could. Then, despite having reviewed the model inquiry with counsel, Powell claimed not to
understand what a “criminal” action was; stated that he had heard he was charged with a crime
but that he had not “presented himself”; and asked if he could defend himself with the
“Constitution and treaties.” Powell also asked about standby counsel before agreeing that he
would be on his own. Finally, Powell acknowledged that the rules of evidence and procedure
would apply to him, saying he would get no “special privileges.”
The district court proceeded to candidly express its skepticism about Powell’s intentions,
noting that Powell is a “very sharp fellow,” perhaps sharper than he was letting on, and
insinuating that Powell was “engaged in a ploy to avoid trial at the last minute.” The district
9
Powell’s appeal described those documents as embodying the Moorish Science belief that, because he
claimed Moorish ancestry, the court’s authority was circumscribed by treaty obligations with the Moorish Empire.
See James, 328 F.3d at 954. Powell does not challenge the district court’s assessment of these claims as irrelevant
and frivolous. See United States v. Cannon, 560 F. App’x 599, 601 (7th Cir. 2014) (rejecting jurisdictional
arguments based on Moorish Science Temple beliefs as frivolous). Self-representation is not a license to disregard
“relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 834 n.46.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 19
court added that, having seen some of the government’s evidence, it might behoove Powell to
“be more familiar with some of these meritless arguments.” The district court admonished
Powell again about the perils of dispensing with counsel—particularly as he seemed to be armed
with meritless theories—before Powell declared that his decision was voluntary. In the order
denying reconsideration, the district court made explicit its finding that Powell’s assertion of the
right to self-representation “was not made in good faith but was intended as a tactic to delay
trial.” Powell contends that there was no factual basis for this inference. We disagree.
The timing and circumstances of Powell’s request support the district court’s finding.
Although circumstances will vary from case to case, the district court could consider Powell’s
relationship with his counsel, the timing of his request, and the fact that his request was based at
least in part on the refusal of counsel to file frivolous documents. See, e.g., United States v.
Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000); see also United States v. Edelmann, 458 F.3d
791, 809 (8th Cir. 2006). Powell elected to retain counsel at the time of his indictment and did
not express dissatisfaction with counsel’s representation or indicate any desire to represent
himself for more than two years. It was not until the day of the final pretrial conference that
Powell first indicated that he wanted to represent himself—two years after indictment, six
months after resolution of the last of the suppression motions, and only after a firm trial date was
imminent.10
Powell’s request was premised on his counsel’s unwillingness to file the stricken
documents—not resistance to being represented by counsel. Even some of Powell’s answers to
the model inquiry echoed theories reflected in the stricken documents. The district court’s
skepticism of Powell’s motives is also supported by the fact that he previously filed similar
Moorish Science Temple documents in two related proceedings. Yet, Powell did not file,
attempt to file, or seek to dismiss counsel for not filing, documents based on his Moorish Science
Temple beliefs until one month before trial in the two-year-old case. The circumstances
surrounding Powell’s proffered waiver of the right to counsel permitted the district court to infer
10
Powell claims to have acknowledged that no continuance would be granted. But, the record shows that
Powell neither asked for a continuance nor stated that one would not be necessary if he were allowed to represent
himself. Nothing about Powell’s implicit acquiescence in district court’s statements about the firmness of the trial
date would have precluded him from asking for more time to prepare on the eve of trial.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 20
that it was a manipulative effort to present frivolous arguments rather than “a sincere desire to
dispense with the benefits of counsel.” Frazier-El, 204 F.3d at 560; see also Bush, 404 F.3d at
271-72; Mackovich, 209 F.3d at 1237-38. The district court did not err in finding that Powell’s
assertion of his right to self-representation was not made in good faith but was intended as a
tactic to delay the trial. We affirm the denial of Powell’s request to represent himself.11
IV. Withdrawal of Counsel
Earnest Proge argues that he was deprived of his right to counsel of choice when the
district court refused to allow his retained counsel to withdraw. The Sixth Amendment
guarantees “the right of a defendant who does not require appointed counsel to choose who will
represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). Deprivation of that
right is structural error that does not require a showing of prejudice or that the counsel defendant
received was ineffective. Id. at 148. But, that right “is circumscribed in several important
respects.” Id. at 144 (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)). Among those
limitations is the trial court’s discretion “in balancing the right to counsel of choice against the
needs of fairness” and “the demands of its calendar.” Id. at 152; see also Wilson v. Mintzes,
761 F.2d 275, 280 (6th Cir. 1985). A district court’s decision to deny a motion to withdraw or
for substitute counsel is reviewed for abuse of discretion. See United States v. Chambers,
441 F.3d 438, 446 (6th Cir. 2006).
Once a defendant brings “any serious dissatisfaction with counsel to the attention of the
district court,” the court has an obligation to inquire into the source and nature of the
dissatisfaction and may grant a motion to withdraw or for substitute counsel if there is a showing
of good cause. Benitez v. United States, 521 F.3d 625, 632 (6th Cir. 2008) (quoting United
States v. Iles, 906 F.2d 1122, 1131-32 (6th Cir. 1990)). Appellate courts reviewing the denial of
such a motion generally consider four factors: “the timeliness of the motion”; “the adequacy of
the court’s inquiry into the matter”; “the extent of the conflict between the attorney and client
and whether it was so great that it resulted in a total lack of communication preventing an
adequate defense”; and “the balancing of these factors with the public’s interest in the prompt
11
The district court did not know Powell would flee during the jury’s deliberations, but the fact that he did
is consistent with the finding of dilatory intent.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 21
and efficient administration of justice.” United States v. Mack, 258 F.3d 548, 556 (6th Cir.
2001); see also Benitez, 521 F.3d at 632 (reviewing a motion to substitute retained counsel).
Balancing these factors, we hold that the district court abused its discretion by allowing one but
not both of Proge’s attorneys to withdraw under the circumstances.
It was during the final pretrial conference one month before trial that Proge’s counsel
stated that Proge wanted new counsel and was “prepared to either petition the government for
that counsel and/or obtain private counsel.” In making a record of Proge’s decision to reject the
plea offer against the advice of counsel, Proge said he felt like it was “an apple being forced
down [his] throat” and that there was not “enough time to make a proper decision.” The district
court extended the time for Proge to enter into a plea agreement, but put off his request for new
counsel and invited his attorneys to file a motion to withdraw. That motion was filed three
weeks before trial, a hearing was held two weeks before trial, the motion was denied in toto one
week before trial, and motions for reconsideration were granted in part, and denied in part, one
day before trial.
This court has considered a request for new counsel made just days or weeks before trial
to be untimely. See United States v. Trujillo, 376 F.3d 593, 606-07 (6th Cir. 2004) (finding
request made three days before trial was untimely); United States v. Williams, 176 F.3d 301, 314
(6th Cir. 1999) (finding motion for substitute counsel made two weeks before trial was
untimely). Although Proge’s request was not made on the eve of trial, the government relies on
this court’s finding in Chambers that a motion for substitution of counsel made one and a half
months before trial was untimely. Chambers, 441 F.3d at 447. But, in Chambers the request
was untimely because the defendant’s complaint was that his counsel would not allow him
access to certain discovery materials when discovery had been complete for nearly a year. Id.;
see also United States v. Marrero, 651 F.3d 453, 464-65 (6th Cir. 2011) (finding defendant
belatedly conveyed his dissatisfaction with counsel). Here, the breakdown that motivated
Proge’s request for new counsel occurred the day before the final pretrial conference. Cf. United
States v. Israel, __F. App’x__, 2016 WL 6407245, at *3 (6th Cir. Oct. 31, 2016) (“We are not
persuaded defendant acted diligently in bringing his concerns to the district court’s attention.”).
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 22
Once the defendant made his dissatisfaction known, the district court was obligated to
inquire into the source and nature of the conflict. Benitez, 521 F.3d at 634. To satisfy this
requirement, “the district court simply must allow a defendant the opportunity to explain the
attorney-client conflict as he perceives it.” Marrero, 651 F.3d at 465. This “not only aids in
determining whether ‘good cause’ has been shown, but serves to ease the defendant’s distrust, to
preserve the integrity of the trial process, and to foster confidence in the jury verdict.” Iles,
906 F.2d at 1131. The district court did not conduct any inquiry when new counsel was
requested, but Proge, his attorneys, and the prosecutor had an opportunity to address the issue
during a hearing 21 days later and in the supplemental briefing and motions for reconsideration
that followed. While an earlier inquiry might have served its purposes better, the district court’s
inquiry into the source of Proge’s conflict with counsel was adequate.
The motion to withdraw outlined the efforts made to negotiate the plea offer and made
clear that there had been a complete breakdown in communication with Proge after lengthy
discussions with him regarding the plea offer. The district court described Proge’s chief
complaint to be his attorneys’ opposition to him proceeding to trial, but explained that Proge was
free to reject his attorneys’ advice to accept the plea offer. “[A] defendant’s differences of
opinions with his attorney do not create a complete breakdown of communication that
compromises his defense.” Marrero, 651 F.3d at 466; see also United States v. Griffin, 476 F.
App’x 592, 596 (6th Cir. 2011) (finding no conflict when dissatisfaction was over counsel’s
encouragement of a guilty plea). Also, “a lack of communication resulting from a defendant’s
refusal to cooperate with his attorney does not constitute good cause for substituting counsel.”
Marrero, 651 F.3d at 466; see also United States v. Vasquez, 560 F.3d 461, 468 (6th Cir. 2009).
In this case, however, the record belies the conclusion that there was either no conflict or
that Proge was entirely to blame. There was not just a disagreement over whether it was in
Proge’s best interest to accept the plea offer. It was during the lengthy discussions about the plea
offer that Proge’s attorneys told him that they had not been retained to represent him at trial, had
not prepared for trial, were not equipped to represent him at trial, and would seek to withdraw if
he did not accept the plea offer. Proge claimed to be surprised by this, insisted that he did not
want attorneys who did not want to fight for him, and repeated that he wanted to hire a new
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 23
lawyer to represent him at trial. Defense counsel agreed that there was an irreconcilable
breakdown in the attorney-client relationship and that, as would become apparent, Proge did not
have the resources to pay for further representation. The conflict between Proge and his
attorneys resulted in a complete lack of communication that weighs strongly in his favor.
Finally, the court must balance the defendant’s “right to counsel of his choice and the
public’s interest in the prompt and efficient administration of justice.” Wilson, 761 F.2d at 280.
When a request for substitute counsel would “almost certainly necessitate a last-minute
continuance, the trial judge’s actions are entitled to extraordinary deference.” Vasquez, 560 F.3d
at 467 (quoting United States v. Whitfield, 259 F. App’x 830, 834 (6th Cir. 2008) (per curiam)).
But, a trial court may not arbitrarily and unreasonably interfere with a defendant’s right to
counsel of choice in the name of calendar control. Wilson, 761 F.2d at 281. The district court
put off making inquiry into the conflict despite a specific request for new counsel and indication
of a serious conflict, which contributed to the likelihood that a last-minute continuance would be
necessary. Nor is this a case in which new counsel was sought based on frivolous complaints
about attorney performance. See United States v. Saldivar-Trujillo, 380 F.3d 274, 278 (6th Cir.
2004). Considering that the request for new counsel was made timely and more than a month
before trial, that the inquiry was delayed though adequate, and that there was a complete
breakdown in the attorney-client relationship, the insistence that trial go forward without
allowing for substitute counsel violated Proge’s Sixth Amendment rights. The district court
abused its discretion in denying the motion of retained counsel to withdraw in this case.12
V. Sufficiency of the Evidence
Although reversal of Proge’s convictions is required by the violation of his Sixth
Amendment rights, we still must decide his sufficiency-of-the-evidence claims because reversal
on that ground would preclude retrial. See United States v. Nelson, 725 F.3d 615, 619 (6th Cir.
2013). The question for this court is whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
12
“[A] defendant relying on court-appointed counsel has no constitutional right to the counsel of his
choice.” Daniels v. Lafler, 501 F.3d 735, 740 (6th Cir. 2007); see also Gonzalez-Lopez, 548 U.S. at 151. Here,
despite hints that appointed counsel might be necessary, Proge’s trial counsel was not appointed to represent him
until after the motion to withdraw was denied and trial had begun.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 24
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Proge
does not challenge the sufficiency of the evidence to support his firearm conviction (Count 8)
and cannot be retried on the substantive drug charge for which he was acquitted (Count 3).
For the reasons that follow, we hold that the evidence was sufficient to support Proge’s
convictions for: conspiracy to possess with intent to distribute and to distribute marijuana, five
kilograms or more of cocaine, and one kilogram or more of heroin (Count 1); possession with
intent to distribute one kilogram or more of heroin (aiding and abetting) (Count 2); and
conspiracy to commit money laundering (Count 10).
First, in order to establish a drug conspiracy in violation of 21 U.S.C. § 846, “the
government must prove, beyond a reasonable doubt, ‘(1) an agreement to violate drug laws,
(2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.’” United
States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999) (quoting United States v. Welch, 97 F.3d 142,
148 (6th Cir. 1996)). Once the existence of the conspiracy is proven, only slight evidence is
needed to connect a defendant to the conspiracy. Id. at 422. Proge’s knowledge and intent to
join the conspiracy may be inferred from his conduct and established by circumstantial evidence.
United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005). Proge does not dispute that there
was overwhelming evidence that the conspiracy to distribute drugs existed. Instead, he argues
that the evidence failed to prove more than his mere association with the Powells. This claim is
without merit.
Proge was not just seen associating with the Powells. It is true that Proge was not in the
Volkswagen with Whigham when the ten kilograms of heroin was seized on June 23. But, Proge
was observed waiting with Whigham and Eric Powell for the heroin to be loaded into the
Volkswagen, was followed as he and Eric Powell traveled in tandem with the Volkswagen, and
was seen leaving the highway to double back when Whigham was stopped. Proge was
subsequently stopped on September 17 transporting $2.2 million in cash in locked suitcases
loaded by the Powells, after meeting Eric Powell at the warehouse, and while being followed by
Eric Powell and a coconspirator in the Silverado. Proge stopped initially, but fled at high speed
(with the Silverado taking up the chase) before finally being stopped. There was evidence that
Proge told officers that there was a lot of cash in the car but that he was just the driver. When
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 25
Eric Powell transported suitcases from the Stricker Avenue location to a hotel in Ann Arbor on
October 1, Proge was seen helping to load a heavy suitcase into a Toyota that was sitting in the
parking lot. There was also evidence that Proge was present on October 22, when suitcases
containing cash and 12 kilograms of cocaine were transferred to Margarita Lopez de Vallejo’s
Toyota in the same hotel parking lot. When viewed in the light most favorable to the
prosecution, the evidence was sufficient to lead a rational trier of fact to conclude that Proge
knowingly and intentionally joined the drug-distribution conspiracy.
Count 2 charged Proge, Whigham, and Eric Powell with possession with intent to
distribute one kilogram or more of heroin on June 23, 2010. Proge argues that there was
insufficient evidence to establish that he had actually or constructively possessed the heroin that
was seized from the Volkswagen. See United States v. Newsom, 452 F.3d 593, 609 (6th Cir.
2006). However, Proge does not dispute that the evidence was sufficient to lead a rational juror
to conclude he was guilty under either a Pinkerton coconspirator liability theory or an aiding-
and-abetting theory. See United States v. Martin, 920 F.2d 345, 348 (6th Cir. 1990) (Pinkerton
theory).
Lastly, to establish a money-laundering conspiracy “the government must prove (1) that
two or more persons conspired to commit the crime of money laundering, and (2) that the
defendant knowingly and voluntarily joined the conspiracy.” United States v. Prince, 618 F.3d
551, 553-54 (6th Cir. 2010); see also Whitfield v. United States, 543 U.S. 209, 212 (2005)
(holding that an 18 U.S.C. § 1956(h) conspiracy does not require proof of an overt act). There
was ample proof that a money-laundering conspiracy existed, and the evidence was sufficient to
lead a rational juror to conclude that Proge conducted or attempted to conduct a financial
transaction knowing that it involved the proceeds of drug trafficking and with intent to promote
the drug trafficking. United States v. Skinner, 690 F.3d 772, 782 (6th Cir. 2012) (finding
evidence sufficient where defendant “knowingly and routinely transported drug proceeds in
furtherance of the drug-trafficking conspiracy”); see United States v. Kelso, 468 F. App’x 551,
555 (6th Cir. 2012) (noting that the “paradigmatic example” of promotional money laundering is
a drug dealer using the proceeds of a drug transaction to purchase additional drugs).
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 26
The government concedes that the judgment incorrectly stated that Proge was found
guilty on Counts 1, 2, 3, 8, and 10, when the jury found him not guilty on Count 3. On remand,
Proge is entitled to entry of judgment of acquittal with respect to Count 3. But, because Proge
has not prevailed on his sufficiency-of-the-evidence claims, retrial is not precluded on remand
with respect to Counts 1, 2, 8, and 10.
VI. Apprendi and Alleyne
Carlos Powell filed a separate pro se supplemental brief raising additional claims of
sentencing error. We need not address his additional claims since he is represented by counsel
who has filed a brief on appeal. See United States v. Williams, 641 F.3d 758, 770 (6th Cir.
2011). But, we exercise our discretion to do so in order make clear that his sentences do not
violate Apprendi v. New Jersey, 530 U.S. 466 (2000), or Alleyne v. United States, 133 S. Ct.
2151 (2013).
Powell’s claim that his sentence on the multiple-object drug conspiracy could not exceed
the five-year maximum for conspiracy involving an unspecified quantity of marijuana is based
on a misapprehension of our decision in United States v. Dale, 178 F.3d 429 (6th Cir. 1999). In
Dale, we held that “when an indictment charges a defendant with a multiple-object conspiracy
and the jury is instructed to agree unanimously as to whether one drug or both drugs referred to
in the indictment are the objects of the conspiracy, the defendant must be sentenced as if the
conspiracy involved only the drug with the lower penalty when the jury returns a verdict not
specifying the substance found.” United States v. Tosh, 330 F.3d 836, 840 (6th Cir. 2003)
(emphasis added). Dale does not apply, here, because the jury returned a verdict specifically
finding that the drug conspiracy involved at least five kilograms of cocaine and at least one
kilogram of heroin (Count 1).
Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. at 490. Apprendi proscribed judicial fact-finding
that increased the statutory maximum, and Alleyne extended that principle to apply “with equal
force to facts increasing the mandatory minimum.” 133 S. Ct. at 2160. Here, the drug quantities
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 27
that increased the statutory penalties for Powell’s drug-conspiracy conviction to a term of
imprisonment of not less than ten years or more than life were charged in the indictment,
submitted to the jury, and found beyond a reasonable doubt. See 21 U.S.C. §§ 846 and
841(b)(1)(A). The same is true for Powell’s convictions on the substantive drug offenses, which
the jury specifically found had involved at least five kilograms of cocaine and at least one
kilogram of heroin, respectively (Counts 3 and 4). To the extent that Powell also complains that
the district court engaged in impermissible fact-finding in determining his sentences, judicial
fact-finding that results in a Guidelines range above the minimum but not exceeding the
maximum sentence would not violate Apprendi or Alleyne. See United States v. Cooper, 739
F.3d 873, 884 (6th Cir. 2014); United States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013).
VII.
We AFFIRM the denial of defendants’ motions to suppress; AFFIRM the judgments
entered against Carlos Powell and Eric Powell, respectively; and VACATE the convictions of
Earnest Proge and REMAND for entry of judgment of acquittal on Count 3 and for further
proceedings with respect to Counts 1, 2, 8, and 10.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 28
______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
______________________________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
What more could Earnest Proge or Carlos Powell have done? At their Final Pretrial Conference
on March 26, 2014, both men raised serious concerns with their legal representation. Proge
moved to substitute his retained counsel. Powell moved to represent himself. With their trial for
orchestrating one of the largest drug-trafficking conspiracies in the history of Detroit weeks
away, both men sought to avail themselves of fundamental protections that the Sixth Amendment
enshrines: for Proge, the right to counsel of choice; for Powell, the right to self-representation.
The facts of what followed are sobering. The government urged the district court to grant
Powell’s Faretta motion and Proge’s motion to substitute counsel. The district court declined. It
forced Proge to proceed with an attorney who, by her own repeated admissions, had not prepared
for trial. It refused to allow Powell to represent himself, even though Powell knowingly and
voluntarily waived his right to counsel.
Those were structural errors. The district court erred when it refused to allow Proge to
substitute his retained counsel. And it erred when it denied Powell’s Faretta motion. I agree
with the majority in vacating Proge’s conviction and provide more detail supporting that
decision. Because I believe that Carlos Powell should have been permitted to represent himself,
I respectfully dissent from Part III of the majority.
I. RIGHT TO COUNSEL OF CHOICE
“The right to select counsel of one’s choice . . . has been regarded as the root meaning of
the constitutional guarantee” that the Sixth Amendment embodies. United States v. Gonzalez-
Lopez, 548 U.S. 140, 147–48 (2006). “Given the necessarily close working relationship between
lawyer and client, the need for confidence, and the critical importance of trust . . . the [Supreme]
Court has held that the Sixth Amendment grants a defendant ‘a fair opportunity to secure counsel
of his own choice.’” Luis v. United States, 136 S. Ct. 1083, 1089 (2016) (quoting Powell v.
Alabama, 287 U.S. 45, 53 (1932)). The district court denied Proge this opportunity when it
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forced him to proceed to trial with an attorney who was unprepared to defend her client.
Because that was a structural error, Gonzalez-Lopez, 548 U.S. at 152, I agree with the majority
that we must vacate Proge’s conviction.
We weigh four factors when reviewing a district court’s denial of a defendant’s motion to
substitute counsel: (1) “the timeliness of the motion”; (2) “the adequacy of the court’s inquiry
into the defendant’s complaint”; (3) “whether the conflict between the attorney and client was so
great that it resulted in a total lack of communication preventing an adequate defense”; and
(4) the balance between “the accused’s right to counsel of his choice and the public’s interest in
the prompt and efficient administration of justice.” United States v. Mooneyham, 473 F.3d 280,
291 (6th Cir. 2007) (quoting United States v. Salvidar-Trujillo, 380 F.3d 274, 277 (6th Cir.
2004)). Here, all four factors militate in favor of granting Proge’s motion, and the district court
abused its discretion when it ruled otherwise.
1. Timeliness: Proge’s request to substitute counsel was timely because—as the
government wrote in its brief recommending that the district court grant that request—Proge
raised this issue one day after his relationship with his attorneys deteriorated completely. R. 268
(4/17/14 Gov’t Supp. Br. at 3–4) (Page ID #2055–56).
In their motion to withdraw, Proge’s attorneys—Patricia Maceroni and Linda Bernard—
explained that on March 25, 2014, they met with Proge to review a Rule 11 plea agreement.
R. 258 (4/3/14 Mot. to Withdraw at 4) (Page ID #1995). The next day, at the March 26 Pretrial
Conference, Bernard explained to the district court that Proge wanted to reject the plea
agreement and proceed to trial. R. 490 (Final Pretrial Conference Tr. at 29) (Page ID #4205).
Neither Bernard nor Maceroni, however, was prepared to assist Proge in that effort: their
representation had been limited to negotiating a plea agreement and filing pretrial motions.
R. 587 (4/16/14 Hr’g Tr. at 41) (Page ID #9143). Accordingly, Proge’s attorneys “did not
obviously prepare for trial.” Id. at 44 (Page ID #9146). Proge’s rejection of the plea agreement
thus triggered “a complete breakdown in the attorney-client relationship such that [his attorneys
could] no longer be effective advocates for Mr. Proge.” R. 258 (4/13/14 Mot. to Withdraw at 4)
(Page ID #1995). One day after that complete breakdown, Proge, understandably concerned that
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 30
his attorneys “didn’t want to represent [him] in trial,” R. 587 (4/15/14 Hr’g Tr. at 51) (Page ID
#9153), informed the district court that he wished to seek new counsel.
The district court reasoned that Proge’s request was not timely because “[t]he first
indication that he was dissatisfied with his attorneys arose right before the final pretrial
conference, and [his attorneys’ motion to withdraw] was ultimately not filed until less than three
weeks before the trial.” R. 282 (4/22/14 Order at 4) (Page ID #2147). I fail to see how Proge
could have moved to substitute counsel sooner. He implored the district court to allow him to
hire a new attorney within one day of learning that his attorneys were not ready to continue
representing him. That was a timely request.
2. Adequacy of court’s inquiry: “Once a defendant” informs the district court that he
wishes to substitute retained counsel, “the district court is obligated to inquire into the
defendant’s complaint and determine whether there is good cause for the substitution.” Benitez
v. United States, 521 F.3d 625, 632 (6th Cir. 2008). “[W]here a district court is on notice of a
criminal defendant’s dissatisfaction with counsel, the court has an affirmative duty to inquire as
to the source and nature of that dissatisfaction—regardless of whether the attorney is court-
appointed or privately retained.” Id. at 634. The district court failed to fulfill that duty here.
At the Final Pretrial Conference, Bernard informed the district court that she and
Maceroni would be filing a motion to withdraw from representing Proge. R. 490 (Final Pretrial
Conference Tr. at 27) (Page ID #4203). The district court responded: “I’ll tell you right now,
you may not have those motions granted I hate to tell you, okay?” Id. The district court’s
unwillingness to allow Maceroni and Bernard to withdraw became clearer during its subsequent
colloquy with Proge. After hearing from Bernard, the district court asked Proge a few questions
about why he wanted to reject his plea agreement, but did not ask any substantive questions
about Proge’s dissatisfaction with his attorneys. Id. at 32–34 (Page ID #4208–10).
It was not until three weeks later—at a hearing on April 16—that the district court
actually asked Proge why he had moved to substitute counsel. First, however, the district court
telegraphed its thoughts on the matter: “I think this is a ploy. I think he’s trying to delay the
trial. I think he’s trying to interfere with the administration of justice.” R. 587 (4/16/14 Hr’g Tr.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 31
at 49) (Page ID #9151). By the time Proge revealed his complete dissatisfaction with his
attorneys—“I don’t want attorneys that don’t want me. . . . I don’t feel that I would get proper
representation from them.”—it was clear that the district court had already made up its mind. Id.
at 52 (Page ID #9154). Put simply, the district court predicated its inquiry on the background
assumption that Proge was trying to disrupt his trial. That inquiry was thus inadequate.
3. Conflict between attorney and client: This factor alone should have impelled the
district court to grant Proge’s request to substitute counsel.
Consider how Bernard and Maceroni characterized their relationship with Proge in their
motion to withdraw: “Both Ms. Bernard and Ms. Maceroni affirmatively state that there has
been a complete breakdown in the attorney-client relationship such that they can no longer be
effective advocates for Mr. Proge.” R. 258 (4/3/14 Mot. to Withdraw at 4) (Page ID #1995).
They repeated this claim in a supplement to that motion: “[T]here has been an irreconcilable
breakdown in the attorney-client relationship. Both attorneys believe, as officers of the Court,
that they cannot be effective counsel for Mr. Proge.” R. 267 (Supp. to Defense Counsels’ Mot.
to Withdraw at 1–2) (Page ID #2050–51).
The district court nonetheless rejected Bernard’s and Maceroni’s motion to withdraw.
R. 282 (4/22/14 Order at 9) (Page ID #2152). Curiously, the district court characterized that
motion as “Earnest Proge’s motion for withdrawal of attorneys.” Id. (emphasis added). Not so:
it was Proge’s attorneys who were pleading with the district court to release them from
representing Proge.
Proge’s attorneys were not finished. Maceroni filed a motion for reconsideration, arguing
that her continued representation of Proge would force her to violate multiple Michigan Rules of
Professional Conduct. R. 284 (Maceroni Mot. for Recons. at 1–2) (Page ID #2159–60).
Maceroni added: “[I]n forcing Counsel to continue representing Mr. Proge through trial,
Counsel cannot meet her responsibilities under the Michigan Rules of Professional Conduct.
The ramifications to Counsel’s professional standing will be damaging and long lasting.” Id. at 3
(Page ID #2161).
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 32
Bernard echoed Maceroni’s concerns in a separate motion for reconsideration, writing
that she “would not like [her] professional standing in the legal community to be compromised
as a result of the ineffective and inefficient handling of this matter.” R. 288 (Bernard Mot. for
Recons. at 3) (Page ID #2207). Bernard had even more serious concerns. She informed the
district court that she had “never handled a criminal jury trial or bench trial in federal court.” Id.
at 2 (Page ID #2206). And she revealed that she had “limited knowledge of the [Federal Rules
of Evidence] and the [Federal Rules of Criminal Procedure].” Id.
Presented with a broken attorney-client relationship, the district court allowed Bernard to
withdraw—but ordered Maceroni to continue representing Proge. R. 302 (4/28/14 Order at 7)
(Page ID #2406). Proge was thus forced to enter the trial of his life with an attorney who
believed adamantly that her professional relationship with him was damaged beyond repair.
4. Interests of Justice: This final prong requires us to “consider both [Proge’s] rights and
the rights of the public.” Cobb v. Warden, Chillicothe Corr. Inst., 466 F. App’x 456, 463 (6th
Cir. 2012). Plainly, the district court’s denial of Maceroni’s motion to withdraw prejudiced—
grievously—Proge’s right to be represented by an attorney of his choosing. In an effort to
counterbalance this constitutional violation, the district court reasoned that allowing Maceroni to
withdraw would have “seriously prejudice[d] the administration of justice and the government’s
limited public resources.” R. 302 (4/28/14 Order at 7) (Page ID #2406).
The government saw things differently. In its April 17 supplemental brief, the
government wrote that although allowing Proge to substitute his counsel would impair the
government’s interest “in moving [Proge’s] case to completion,” the district court should
nonetheless allow Proge’s attorneys to withdraw “and require [Proge] to immediately find new
counsel.” R. 268 (4/17/14 Gov’t Supp. Br. at 6–7) (Page ID#2058–59). The government
repeated this recommendation in its April 28 response submission, where it wrote that “the
government continues to believe that the most cautious approach would be to allow counsel to
withdraw from the case.” R. 298 (4/18/14 Gov’t Resp. at 1) (Page ID #2370). The
government’s repeated request that the district court grant Proge’s motion to substitute counsel
undercuts the district court’s conclusion that the public interest would have been best served by
denying that motion.
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 33
***
“[E]rroneous deprivation of the right to counsel of choice [carries] ‘consequences that are
necessarily unquantifiable and indeterminate . . . .’” Gonzalez-Lopez, 548 U.S. at 150 (quoting
Sullivan v. Louisiana, 508 U.S. 275, 282 (1993)). Here, however, at least some of the
consequences of the district court’s error are crystalline. In late April 2014, Proge went to trial
represented by an attorney who had told him, and the district court, that she was unprepared to
defend Proge. He was prosecuted by an Assistant United States Attorney who twice implored
the district court to allow Proge to change attorneys. And he was tried by a district judge who
responded to Proge’s plaintive requests to substitute counsel by declaring his belief that Proge
was trying to game the system.
The district court’s denial of Proge’s request to substitute counsel vitiated a core
protection of the Sixth Amendment. That was an abuse of discretion, and I thus join the majority
in vacating Proge’s conviction.
II. RIGHT TO SELF-REPRESENTATION
“The right to appear pro se exists to affirm the dignity and autonomy of the accused and
to allow the presentation of what may, at least occasionally, be the accused’s best possible
defense.” McKaskle v. Wiggins, 465 U.S. 168, 176–77 (1984). “[D]enial of the Faretta right is a
structural error for which [a defendant] need not show any prejudice.” Washington v. Renico,
455 F.3d 722, 734 (6th Cir. 2006). Just so here. Powell validly waived his right to counsel. The
district court nonetheless refused to allow Powell to represent himself: it first denied Powell’s
Faretta motion after applying the wrong legal standard, then refused to reconsider that denial
when the government argued that the district court had erred. Because the district court should
have granted Powell’s motion to proceed pro se, I would vacate Powell’s conviction.
At the outset, I note that our “jurisprudence concerning the standard of review applicable
to claims asserting violations of the right to self-representation is confused.” United States v.
Evans, 559 F. App’x 475, 478 (6th Cir. 2014); compare United States v. Jones, 489 F.3d 243,
247 (6th Cir. 2007) (de novo) with United States v. Bowker, 372 F.3d 365, 385 (6th Cir. 2004)
(abuse of discretion), vacated on other grounds by Bowker v. United States, 125 S. Ct. 1420
 Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 34
(2005). This question remains open in our circuit. See United States v. Williams, 641 F.3d 758,
766 (6th Cir. 2011). Even if we were to review for an abuse of discretion the district court’s
denial of Powell’s Faretta motion, as the government recommends, I would still reverse.
Faretta set an important limitation on the right to self-representation: “[I]n order to
represent himself, the accused must knowingly and intelligently forgo” his Sixth Amendment
right to counsel. United States v. Bankston, 820 F.3d 215, 223 (6th Cir. 2016) (quoting Faretta
v. California, 422 U.S. 806, 835 (1975)); see also Martinez v. Court of Appeal of California,
Fourth Appellate Dist., 528 U.S. 152, 161 (2000) (“[T]he right to self-representation is not
absolute. The defendant must voluntarily and intelligently elect to conduct his own defense
. . . .” (internal quotation marks and citations omitted)). To this end, “[w]hen an accused wishes
to represent himself, the district court must ask the defendant a series of questions drawn from,
or substantially similar to, the model inquiry set forth in the Bench Book for United States
District Judges.” United States v. Ross, 703 F.3d 856, 867 (6th Cir. 2012) (internal quotation
marks omitted).
The purpose of this inquiry is not to determine whether a defendant will represent himself
as well as an attorney would. Rather, it is to ensure that the defendant is “aware of the dangers
and disadvantages of self-representation, so that the record will establish that” his waiver of the
right to counsel is knowing and voluntary. Faretta, 422 U.S. at 835. Accordingly, “the
competence that is required of a defendant seeking to waive his right to counsel is the
competence to waive the right, not the competence to represent himself.” Godinez v. Moran,
509 U.S. 389, 399 (1993).
The district court failed to appreciate this distinction. Powell knowingly and intelligently
waived his right to counsel. At the Final Pretrial Conference, Powell’s attorney informed the
district court that Powell wished to proceed pro se. R. 490 (Final Pretrial Conference Tr. at 23)
(Page ID #4199). The district court held a hearing on Powell’s Faretta motion two weeks later,
on April 10, 2014. R. 287 (4/10/14 Hr’g Tr.) (Page ID #2174). At that hearing, the district court
first informed Powell that in no event would it grant a continuance of Powell’s scheduled trial
date; Powell said that he understood. Id. at 6–7 (Page ID #2179–80). Powell explained that he
wished to represent himself so that he could file documents related to the teachings of the
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 35
Moorish Science Temple—documents, Powell explained, that his retained attorney was not
willing to file. Id. at 7–8 (Page ID #2180–81). The district court told Powell that he could be
sentenced to life in prison if he were convicted; again, Powell said that he understood. Id. at 8–9
(Page ID #2181–82). The district court then asked Powell a series of questions patterned after
the Bench Book; Powell answered each one by acknowledging that he appreciated fully the
court’s admonitions about the perils of representing himself at trial. Id. at 9–14 (Page ID #2182–
87). And when the district court asked Powell if he was voluntarily invoking his Faretta right,
Powell responded that he was. Id. at 15 (Page ID #2188).
Despite Powell’s knowing and voluntary waiver of his right to counsel, the district court
denied Powell’s request, relying on our decisions in United States v. Sullivan, 431 F.3d 976 (6th
Cir. 2005), and United States v. Trujillo, 376 F.3d 593 (6th Cir. 2004). Id. at 17–19 (Page ID
#2190–92). That was an error: Sullivan and Trujillo concern the right to counsel of choice, not
the right to self-representation. Sullivan, 431 F.3d at 979; Trujillo, 376 F.3d at 606. The
government noted this mistake in its motion for reconsideration. R. 263 (4/16/14 Gov’t Mot. for
Recons. at 4–5) (Page ID #2006–07). Moreover, the government wrote that Powell’s Faretta
motion arguably “satisfied the conditions for self-representation,” and it implored the district
court to reconsider its denial of that motion. Id. at 3, 5–6 (Page ID #2005, 2007–08).
The district court held firm. In an order dated April 23, 2014, the district court justified
its denial of Powell’s Faretta motion largely on the strength of Powell’s attorney: “Powell ha[d]
been ably represented by [his attorney] for over two years,” the district court wrote, and the
genesis of Powell’s request for self-representation was not his attorney’s incompetence but rather
Powell’s desire to “file additional frivolous documents related to the Moorish Science Temple.”
R. 286 (4/23/14 Order at 5) (Page ID #2171). Powell, the district court reasoned, was simply
trying to delay his trial. Id. at 6 (Page ID #2172).
The district court, in other words, did just what Faretta and its progeny forbid. The
district court reasoned that Powell would probably stand a better chance of prevailing at trial if
he were represented by counsel. And the district court reasoned that the documents Powell
wished to file were, from a legal standpoint, frivolous. It then denied Powell’s Faretta motion
because it determined that the motion must have been a ruse. Thus, although Powell
Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 36
demonstrated that he was competent to waive his right to counsel, the district court erroneously
denied that right on the assumption that Powell would do a poor job representing himself. Cf.
Godinez, 509 U.S. at 399.
Faretta makes plain that a defendant may waive his right to counsel irrespective of “his
technical legal knowledge” or “how well or poorly [the defendant] has mastered the intricacies
of” trial procedure. Faretta, 422 U.S. at 836. Faretta thus teaches that although a defendant
“may conduct his own defense ultimately to his own detriment, his choice must be honored out
of ‘that respect for the individual which is the lifeblood of the law.’” Id. at 834 (quoting Illinois
v. Allen, 397 U.S. 337, 350–51 (1970) (Brennan, J., concurring)). That respect was absent from
the district court’s denial of Powell’s request for self-representation.
Powell’s waiver of his right to counsel was both knowing and voluntary. The district
court erred by refusing to honor that waiver. And the majority errs in affirming the district court.
I would vacate Powell’s conviction on the basis of the district court’s violation of Faretta.