United States v. Jermaine Pryor

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0278p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│
v. > No. 15-2123
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JERMAINE BENJAMIN PRYOR, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:14-cr-00208—Robert J. Jonker, Chief District Judge.
Decided and Filed: November 22, 2016
Before: GUY, BOGGS, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Steven D. Jaeger, THE JAEGER FIRM, PLLC, Erlanger, Kentucky, for Appellant.
B. Rene Shekmer, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee.
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OPINION
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BOGGS, Circuit Judge. Before us is a case involving the invocation of the right to self-
representation, voice-identification testimony, and a sentencing enhancement for possession of a
firearm in furtherance of a drug crime. Because we find no error below, we affirm the judgment
of the district court.
1
No. 15-2123 United States v. Pryor Page 2
I
Jermaine Pryor (who calls himself Al Gomono Bey)1 was charged with conspiring with
three other men to distribute heroin between 2012 and 2014. The conspiracy operated by having
interested persons call a phone number to speak to “Daffy Duck” and negotiate a purchase of
heroin. “Daffy” (allegedly Pryor) would then give a location for the proposed transaction and
inform members of the conspiracy of what to bring and where to bring it. Deputy Chauncey
Shattuck listened in on four telephone calls between “Daffy” (now under the nom de guerre
“Taz”) and an informant in January and February 2014 regarding buying heroin. Following a
drug purchase on February 20 by the informant, police maintained surveillance on the residence
where the sale occurred. While a search warrant was being drafted, a Dodge Magnum arrived
and Pryor entered the house. Police observed Pryor through the window as he picked up money
and placed it into a bag, and then returned to his car and left. Deputy Michael Leasher followed
the car from the house until it was stopped by an Ingham County sergeant and deputy for traffic
violations. Pryor was ordered out of the vehicle and the officers observed that he had a .45-
caliber Glock pistol holstered inside his waistband. Pryor informed the officers that he had a
proper license for the weapon, which they verified. After he was handcuffed and patted down,
the police discovered wads of money in his pockets. Pryor was arrested for his connection to the
drug transaction. The police later found in the car a cell phone with a disconnected battery.
They reconnected the battery and turned the phone on. Shattuck called the number for Taz and
the phone rang.
Pryor made thirty-three phone calls while in jail, which were recorded. In addition, Pryor
had a recorded virtual meeting with a visitor via video feed. Pryor was released, and Shattuck
received disks from Detective Brad Delaney that Delaney stated contained recordings of the
phone calls from Pryor and the twenty-minute video recording.
Shattuck listened to these phone calls and the video recording (a total of about four hours
of conversation) in preparation for further investigation. In watching the video, Shattuck found
1
While Jermaine Pryor prefers to be called “Al Gomono Bey,” he does not appear to have changed his legal
name and the proceedings thus far have referred to him by his given name. As a result, we refer to the defendant
throughout as “Pryor.”
No. 15-2123 United States v. Pryor Page 3
that Pryor’s voice matched Taz’s voice that he had heard earlier, and that the voices on the
recordings were the same as that of the prisoner in the video. In late April 2014, Taz called
Shattuck and the two spoke briefly. Shattuck then made four controlled drug purchases in July
2014, each time contacting Taz over the phone and discussing the purchase details.
Officer Daniel Batora was also involved in the investigation of the conspiracy. Batora
listened to a twenty-minute recording of Pryor’s conversation in the last week of April 2014
prior to placing a call on May 1 to a line thought to be one of Taz’s ever-changing phone
numbers. Batora identified the man on the other end of the line as Pryor and arranged a purchase
of heroin. He made a total of three phone calls and purchases of heroin in May 2014.
Pryor was arrested again on December 2, 2014, and brought before a magistrate judge.
There, he appeared to object to the jurisdiction of the court, announcing that he had “no contracts
with the United States corporation or anybody in this courtroom,” and repeatedly ignored the
magistrate judge’s requests to be quiet. The court adjourned and brought him back the next day
to complete his initial appearance. At this appearance, the court asked Geoffrey Upshaw to
appear as standby counsel for Pryor and informed Pryor that Upshaw was “here if you wish to
consult with him, but he d[id] not yet” represent him. Pryor responded that he was “never going
to consult with” Upshaw. He then began to object to the jurisdiction of the court, explaining that
he was “not a part of your society. . . . I am a moor, and your laws d[o]n’t apply to me.”2 The
magistrate judge informed Pryor of his right to the assistance of counsel, and that counsel would
be appointed at no cost if he could not afford representation. Pryor immediately stated “I don’t
consent to that.” When the magistrate judge asked if he understood that counsel could be
appointed for him, Pryor replied that he did not. The magistrate judge then inquired if Pryor was
asking the court to appoint counsel, and Pryor denied consent to the court’s jurisdiction. The
magistrate judge repeated his question, and Pryor answered “No. I don’t have—no, I don’t
consent to anything.” When asked if he intended to hire his own attorney, Pryor indicated that
he would not: “Why would I—I am not a minor and no one . . . will be talking for me.” Again,
the magistrate judge repeated his question, and Pryor repeated his answer, saying “I’m not a
2
Pryor’s arguments were consistent with a branch of the “sovereign citizen” movement, an ideology that
rejects the legitimacy of United States jurisdiction over its adherents. See, e.g., Michael Crowell, A Quick Guide to
Sovereign Citizens, Admin. Just. Bull. (UNC Sch. of Gov’t, Chapel Hill, N.C.), Nov. 2015.
No. 15-2123 United States v. Pryor Page 4
minor and I don’t need anyone to talk for me.” After being read the charges against him and
asked if he understood them, Pryor said he did not. He repeated his denial of the court’s
jurisdiction (“I’m not a part of your society. Your laws d[o]n’t apply to me.”). Citing Pryor’s
“bizarre[]” behavior, the magistrate judge ordered that Pryor be referred to the Bureau of Prisons
for a competency evaluation.
At the competency hearing on March 16, 2015, Pryor objected to being in court “under
direct duress and coercion,” but indicated that he was appearing “in propria persona.” The
magistrate judge observed that he had now appointed Upshaw as Pryor’s counsel, at least for the
duration of the competency hearing, and Upshaw noted that Pryor did not wish for him to speak
on his behalf. Pryor objected, but was warned that he would be removed from the courtroom if
he continued to speak out of turn. Based on the competency report, the court found that Pryor
was competent to proceed in his case. When the court was advising Pryor of his rights, Pryor
repeatedly answered questions with questions of his own. The court stated: “If you are either
unable or unwilling to answer my questions, I will have no alternative but to keep Mr. Upshaw
on as counsel. You cannot represent yourself if you will not cooperate with the Court in
answering questions.” The court directly asked Pryor, “do you wish to represent yourself or do
you wish to have counsel represent you?” Pryor answered “I will be myself” and again
challenged the court’s jurisdiction. The court repeated the question, and Pryor asked if the judge
was offering him a contract.3 The court repeated itself one final time and warned that if Pryor
did not answer the question, “I’m going to simply retain Mr. Upshaw as your attorney.” Pryor
objected to being called “Mr. Pryor,” and the court appointed Upshaw as counsel, to which Pryor
immediately and repeatedly objected.
3
Many sovereign citizens believe that by entering into a contract with the federal government, they lose
their status as sovereign citizens and provide courts with jurisdiction over them. See Francis X. Sullivan, Comment,
The “Usurping Octopus of Jurisdictional/Authority”: The Legal Theories of the Sovereign Citizen Movement,
1999 Wis. L. Rev. 785, 802 (“Once the Sovereign Citizen contracts with the federal government, he unknowingly
surrenders his personal sovereignty and agrees to be bound by the illegitimate federal law.”). Indeed, a number of
sovereign citizens believe that using a lawyer also constitutes acceptance of the jurisdiction of the court via contract
with the government. See, e.g., Charles E. Loeser, From Paper Terrorists to Cop Killers: The Sovereign Citizen
Threat, 93 N.C. L. Rev. 1106, 1126 (2015); Taj Tarik Bey, 6-Week Civics Class: Class 4, at 2,
http://rvbeypublications.com/sitebuildercontent/sitebuilderfiles/webcivicsclass4.pdf (last visited on Oct. 27, 2016)
(“If one hires a Lawyer or an Attorney of the Bar Association (A.B.A.) to ‘re-present’ you, then you have
surrendered your Birthrights to that officer of the court! Jurisdiction is then assumed, and the officers of the court
go straight to Adjudicating against you with sanctions, fines, and jail time, or both!”).
No. 15-2123 United States v. Pryor Page 5
Pryor continued to object throughout the proceeding to the court or Upshaw taking any
action on his behalf. The magistrate judge announced that any further objections would result in
Pryor being removed from the courtroom and added, “If you’re represented by counsel, that’s
your doing. You have no one to blame but yourself for the situation that you’re in,” explaining
that Pryor would not answer his questions and as such he could no longer “speak for [him]self.”
But when the court asked Upshaw whether he had anything to offer the court, Pryor objected
again: “I am not a minor. He will not speak for me.” Pryor was escorted out of the courtroom.
The next day at the initial pretrial conference, Pryor again continued his objections to
Upshaw’s representation of him. When told by the court that he was now represented by
counsel, Pryor objected: “I have no contracts with this man. . . . I am here in propria
persona . . . .” The magistrate judge informed Pryor that if he spoke to the court directly rather
than through counsel, he would be removed from the courtroom. Despite this warning, Pryor
twice objected to Upshaw’s representation. On March 19, Pryor submitted an “Affidavit of
truth” to the court, disclaiming the court’s jurisdiction, announcing that he had no contracts with
any corporation or the United States of America, and stating “Geoffrey Upshaw will not
represent me.” The document was rejected as not having come through appointed counsel.
Pryor continued to submit affidavits asserting his desire to appear in propria persona and
contesting the court’s jurisdiction. After a further message to the court asserting his desire to
proceed in propria persona (among other arguments), the court entered an order to automatically
reject letters from Pryor and “advise[d] and recommend[ed] that Defendant Pryor consult with
his counsel regarding this and all other aspects of the case.” Pryor continued to send letters
objecting to deprivation of his ability to be in propria persona, jurisdiction, and other matters.
Just over two months later at the final pretrial conference of May 20, 2015, now before
Chief Judge Robert Jonker, Pryor continued his objections to Upshaw acting as his counsel,
among other objections. He interrupted the court on numerous occasions to raise his objections,
which were often framed in legalistic—albeit unorthodox—terms. His appointed counsel
challenged the proposed voice identification by Batora and Shattuck on the basis that proper
foundation could not be established and the officers were basing their identification on memory
No. 15-2123 United States v. Pryor Page 6
alone, rather than on recordings that might have been made of their phone calls with Taz. The
court denied the motion.
At trial, Pryor raised objections to counsel and jurisdiction. After a jury trial, Pryor was
convicted of conspiracy to distribute 100 grams or more of heroin. Pryor was sentenced on
September 15, 2015, where he stated once again that “[t]he magistrate judge . . . appointed
Geoffrey Upshaw over my objection” and made further objections to the court. His appointed
counsel objected to the quantity of drugs listed on the sentencing report, the leadership
sentencing enhancement, and the firearm enhancement, as well as to the report’s listing of Pryor
as “black or African-American” rather than “Moors American,” his name appearing as Jermaine
Pryor, and a Social Security number being related to him. The court denied the objections,
finding that Pryor “ha[d] never engaged the process sufficiently to establish, assert, and enjoy the
privilege of representing himself,” and sentenced Pryor to 235 months in custody.
II
We begin with the threshold issue of jurisdiction. Hagans v. Lavine, 415 U.S. 528, 538
(1974). Pryor challenges the jurisdiction of this court and the court below on a number of
grounds. First, Pryor insists that he was tried for a state crime, which would deprive the federal
courts of jurisdiction. But he was charged under 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1),
federal statutes properly passed by Congress that provide this court with federal-question
subject-matter jurisdiction. See 18 U.S.C. § 3231 (2012). Next, Pryor argues that the United
States lacks standing because there is no injured party in this conspiracy case. There is standing,
however, because “the injury to [the United States’] sovereignty arising from violation of its
laws . . . suffices to support a criminal lawsuit by the Government.” Vt. Agency of Nat. Res. v.
United States ex rel. Stevens, 529 U.S. 765, 771 (2000). Pryor also contends that the court did
not establish personal jurisdiction over him and attempted to preserve this argument by
indicating that he was appearing specially before the district court to contest personal
jurisdiction. Federal courts have personal jurisdiction over criminal defendants before them,
whether or not they are forcibly brought into court. See United States v. Alvarez-Machain,
504 U.S. 655, 660–62 (1992); Frisbie v. Collins, 342 U.S. 519, 522 (1952). We have jurisdiction
over this appeal through 28 U.S.C. § 1291 (2012).
No. 15-2123 United States v. Pryor Page 7
On a final note, Pryor also complained that he was in an Article III court yet not before
an Article III judge, which (as he did not waive the issue), if true, may constitute a violation of
Article III. See Roell v. Withrow, 538 U.S. 580, 588–89 (2003); United States v. Ford, 824 F.2d
1430, 1435 (5th Cir. 1987) (en banc) (“It is sufficient here to simply observe that such a
[situation] would pose grave constitutional issues.”). However, the district judge who presided
below, the Honorable Robert J. Jonker, is a duly appointed Article III judge, as are the members
of this panel. 153 Cong. Rec. 18210 (2007); 151 Cong. Rec. 12171 (2005); 132 Cong. Rec. 3430
(1986); 131 Cong. Rec. 27728 (1985). Likewise, the district court and this court are
constitutionally created Article III courts. 28 U.S.C. §§ 41, 43, 102. As a result, the case is
properly before us and we may decide this matter without fear of constitutional impropriety.
III
A. Right of Self-Representation
Although the issue has come before us on several occasions, “Sixth Circuit 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). We
have at times reviewed denials of motions for self-representation de novo, United States v.
Cromer, 389 F.3d 662, 679 (6th Cir. 2004), and for abuse of discretion, Robards v. Rees,
789 F.2d 379, 384 (6th Cir. 1986). We have also held that de novo review is required for review
of a waiver of a constitutional right. United States v. Ross, 245 F.3d 577, 583 (6th Cir. 2001).
Because we believe that under either standard of review the district court’s decision was
justified, we will once again defer the determination of the proper standard of review for this
question.
The Sixth Amendment guarantees the right of the accused “to have the assistance of
counsel for his defense.” U.S. Const. amend. VI. But it also “implies a right of self-
representation.” Faretta v. California, 422 U.S. 806, 820 (1975). “To thrust counsel upon the
accused, against his considered wish, . . . violates the logic of the Amendment. In such a case,
counsel is not an assistant, but a master . . . .” Ibid. As the right to self-representation and the
right to counsel are “two faces of the same coin,” the assertion of one necessarily requires the
No. 15-2123 United States v. Pryor Page 8
waiver of the other. United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970) (quoting United
States v. Plattner, 330 F.2d 271, 276 (2d Cir. 1964)). Because the “dangers and disadvantages of
self-representation during trial are so substantial,” a court must make a “searching or formal
inquiry” before permitting a waiver of the right to counsel (although no such inquiry is required
for the correlative waiver of right to self-representation4). Hill v. Curtin, 792 F.3d 670, 677 (6th
Cir. 2015) (en banc) (citation omitted). The object of the inquiry is to establish that the
defendant “knowingly, intelligently, and voluntarily” waived the right and “his choice is made
with eyes open.” Fowler v. Collins, 253 F.3d 244, 249 (6th Cir. 2001) (quoting Faretta,
422 U.S. at 835). “[N]o degree of legal knowledge is required” to assert the right, so long as the
defendant appreciates what he is forgoing. United States v. McDowell, 814 F.2d 245, 250 (6th
Cir. 1987).
In the Sixth Circuit, we have mandated a formal inquiry, using our supervisory powers,
that federal district judges must undertake to determine whether a waiver is proper. Id. at 249–
50. Where a request to self-represent is clear, unequivocal, and timely, the 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. McBride, 362 F.3d
360, 366 (6th Cir. 2004); see also Cromer, 389 F.3d at 682.
After Pryor was adjudged competent, the magistrate judge attempted to inform him of his
rights. To almost every question, however, Pryor responded with a question of his own, mostly
addressed at the court’s jurisdiction. When the magistrate judge asked directly whether Pryor
wished to represent himself or have counsel represent him, the closest Pryor came to
acknowledging that he wished to represent himself was his statement “I will be myself.” This
statement can hardly be called a clear assertion of the right to self-representation, especially
given Pryor’s failure to confirm that meaning of his statement upon repeated inquiries by the
judge. We have found, where a defendant “repeatedly interrupted the judge, complained, and
answered almost every question by contending that he did not understand,” a district court’s
4
Some courts have justified the lack of inquiry by asserting that the right to counsel “attaches automatically
and must be waived affirmatively to be lost, while the [right to self-representation] does ‘not attach unless and until
it [i]s asserted.’” Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir. 1991) (en banc) (second alteration in original)
(quoting Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986)); see also Brown v. Wainwright, 665 F.2d
607, 610 (Former 5th Cir. 1982) (en banc).
No. 15-2123 United States v. Pryor Page 9
denial of a motion for self-representation would not be reversed under an abuse-of-discretion
standard. United States v. Carradine, 621 F.3d 575, 579 (6th Cir. 2010), abrogated on other
grounds by Dorsey v. United States, 132 S. Ct. 2321 (2012). Pryor’s refusal to provide a straight
answer to the thrice-repeated question of whether he wished to be represented by counsel or by
himself was a rejection of further inquiry into his waiver of counsel and justified the magistrate
judge’s conclusion of the colloquy. A court facing such resistance can hardly be expected to
proceed through the questions in anticipation that the defendant may change his mind and begin
responding. See, e.g., Carradine, 621 F.3d at 579.
This result is fully consistent with Faretta and similar cases. Faretta itself noted that
“[t]he right of self-representation is not a license to abuse the dignity of the courtroom . . . [nor] a
license not to comply with relevant rules of procedural and substantive law.” 422 U.S. at 834
n.46. The Faretta Court used Illinois v. Allen to explain this restriction on the right of self-
representation. Allen had held that an “obstreperous defendant” could be removed from the
courtroom “until he promises to conduct himself properly.” Illinois v. Allen, 397 U.S. 337, 343–
44 (1970); see also Faretta, 422 U.S. at 834 n.46. If a defendant may be removed from a
courtroom for his disorderly behavior and waive his right to be present at trial, so too can he
waive his right to act pro se and thus have appointed counsel act in his stead while he is removed
from the courtroom. See Faretta, 422 U.S. at 834 n.46; United States v. Dougherty, 473 F.2d
1113, 1125 (D.C. Cir. 1972). The refusal to provide answers to the colloquy is similar to a
refusal to attend proceedings, and the court may treat it as a waiver of the right to self-
representation. But this court has held that “no action against an unruly defendant is permissible
except after he has been fully and fairly informed that his conduct is wrong and intolerable, and
warned of the possible consequences of continued misbehavior.” Gray v. Moore, 520 F.3d 616,
623 (6th Cir. 2008) (quoting Allen, 397 U.S. at 350 (Brennan, J., concurring)).
Here, the magistrate judge, after his attempts to have Pryor expressly state he wished to
represent himself, clearly warned Pryor that failure to respond to the question would result in the
appointment of Upshaw as his attorney. Pryor’s answer was nonresponsive, and so the
magistrate judge permissibly appointed counsel and ended the colloquy. See Carradine,
621 F.3d at 579; cf. United States v. Knight, 896 F.2d 1369, 1990 WL 18055, at *5 (6th Cir.
No. 15-2123 United States v. Pryor Page 10
1990) (unpublished table decision) (per curiam) (“The transcript demonstrates that quizzing [the
defendant] as McDowell directs would have been futile.”); Raulerson v. Wainwright, 732 F.2d
803, 809 (11th Cir. 1984) (holding the right to self-representation waived where the defendant
left the courtroom in the middle of the Faretta inquiry).
This finding is not the end of Pryor’s claim, however, as defendants may assert the right
to self-representation later in proceedings, where the assertion is timely and not an attempt to
delay or manipulate proceedings. See, e.g., Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008)
(holding that the court was required to perform a Faretta inquiry even after the defendant had
begun trial with counsel); Robards, 789 F.2d at 383. This case presents the question of whether
a defendant who has waived his right through a refusal to engage with court proceedings and
procedure can reinvoke his right without a demonstration or promise that the conduct that caused
the initial waiver will not reoccur. Because we find that a defendant who has thus waived his
right must make some indication that he will engage with the court at least to the extent of
answering procedural questions such as the colloquy and that Pryor made no such indication, we
need not decide whether Pryor’s scores of objections to counsel’s actions and claims that he was
appearing “in propria persona”5 suffice to constitute a clear and unequivocal invocation of the
right to self-representation. See Cromer, 389 F.3d at 682; United States v. Pittman, 816 F.3d
419, 426 (6th Cir. 2016) (finding that where a defendant rejects counsel, it may be the same as a
choice to self-represent).
Having waived his self-representation right previously by reason of his nonanswers,
Pryor needed to make a good-faith showing that the problem would not reoccur. In Allen, the
defendant agreed to behave and was permitted to return (and was in fact thrown out for
disruption and then readmitted once again later when he made a new promise). See 397 U.S. at340–41. Absent that promise, the court had no reason to expect that Pryor would change his
mind and answer the questions rather than treat the colloquy as another “offer to contract” and
reject the inquiry anew. Having set the status quo himself, Pryor bore the light burden of
showing that his behavior had changed and he would proceed with the Faretta inquiry.
5
“In propria persona” is legally equivalent to “pro se” and was treated as such in Faretta. See Faretta,
422 U.S. at 816, 839; In propria persona, Black’s Law Dictionary (10th ed. 2014) (“See pro se.”).
No. 15-2123 United States v. Pryor Page 11
Courts dealing with defendants seeking to represent themselves face a dilemma: the
potential for an unconstitutional denial of the right to counsel if the right to self-representation is
too quickly provided or reversal for unconstitutional denial of the right to self-representation if
the right to counsel is too vigorously shielded. The method that our court has devised to avoid
the predicament is to provide an opportunity for defendants to indicate their desire to waive the
right to counsel and then to undertake a thorough review of the detriments and disadvantages that
accompany such a waiver. Where the defendant through his own actions does not permit the
court to ascertain whether a waiver is knowing or voluntary, or even if he means to waive at all,
he cannot use the court’s failure to acknowledge the waiver later to take a mulligan and try his
case again if he loses. This is not to say that an obstreperous defendant has forever waived his
right to self-representation; on the contrary, where “he promises to conduct himself properly,”
the court should reinvestigate the invocation. Allen, 397 U.S. at 344. Pryor, however, made no
such promise and instead simply continued to make objections and interrupt the court.
Accordingly, the district court had no indication that he would comply with and complete the
colloquy this round, and Pryor’s right to self-representation remained waived.
B. Admission of Voice-Identification Testimony
Pryor also argues that the admission of the voice-identification testimony of Deputy
Shattuck and Officer Batora was in error. We review the district court’s admission of evidence
for abuse of discretion. See United States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004). “The
standard for the admissibility of an opinion as to the identity of a speaker is merely that the
identifier has heard the voice of the alleged speaker at any time.” United States v. Cooke,
795 F.2d 527, 530 (6th Cir. 1986) (quoting United States v. Rizzo, 492 F.2d 443, 448 (2d Cir.
1974)).
It is clear that the district court did not abuse its discretion. First, although Shattuck’s
initial conversations with “Taz” were without prior knowledge of Pryor’s voice, his listening to
the phone calls and watching the video recording made while Pryor was incarcerated provided
him with a reliable exemplar. Defense counsel admitted that the recordings were of Pryor,
acknowledging “we don’t dispute that the voice on the jailhouse recording is the voice of the
defendant.” The order of listening to voices (the voice to be compared and the exemplar) is not
No. 15-2123 United States v. Pryor Page 12
dispositive of the admissibility of the testimony, as Federal Rule of Evidence 901(b)(5) permits
testimony based on “hearing the voice at any time.” Fed. R. Evid. 901(b)(5) (emphasis added);
see also United States v. Simms, 351 F. App’x 64, 69 (6th Cir. 2009). Additionally, because
Shattuck was able to compare the telephone calls with the video recording, he could confirm that
those calls were made by the man in the video recording. Even Pryor’s argument that Shattuck
could not confirm the accuracy of Detective Delaney’s assertion that the jail calls were from
Pryor is unavailing; Shattuck identified Pryor in court, essentially making the connection
between Pryor, the phone calls, and video. There is no requirement that the exemplar be from a
face-to-face conversation. See, e.g., United States v. Mendiola, 707 F.3d 735, 741 (7th Cir.
2013). Nor must the witness be qualified as an expert. See, e.g., United States v. Recendiz,
557 F.3d 511, 527 (7th Cir. 2009); cf. United States v. Harris, 786 F.3d 443 (6th Cir. 2015)
(finding lay testimony permissible for handwriting comparison). Batora’s conversations were
made after listening to the twenty-minute recording. Again, because defense counsel admitted
that the recording was of Pryor, the recordings were a proper exemplar. Thus, Batora could
compare the voice in the recording with his personal recollection of the voice on the phone calls
that he made later to set up drug buys.
Pryor also argues that the conversations that Shattuck and Batora had with Taz were too
brief to establish familiarity with the voice. We found in United States v. Cooper, 868 F.2d 1505(6th Cir. 1989), that the district court’s admission of testimony by an officer who had listened to
tape recordings of a conversation with a voice to be identified and spoken with a defendant for
thirty seconds was not an abuse of discretion. Id. at 1519. There is no reason why it should
matter whether the exemplar or the voice to be compared is of short duration; thus, relying on the
multiple minute-long conversations that Shattuck and Batora had with Taz to admit the
testimony is not an abuse of discretion.
Finally, Pryor contends that the failure of the police to record the phone calls negotiating
the purchase of heroin should preclude the testimony. Although such recordings would be
helpful to a court and jury, they are not required. See Simms, 351 F. App’x at 69 (permitting
testimony identifying a voice on a recording where witness had last heard unrecorded exemplar
No. 15-2123 United States v. Pryor Page 13
two years previously). In sum, the court did not abuse its discretion in permitting the voice-
identification testimony.
C. Sentencing Enhancement for Possession of a Firearm in Furtherance of a Drug Crime
Pryor’s Guidelines sentencing range was enhanced by application of USSG §2D1.1(b)(1),
which provides that where a defendant is convicted of a conspiracy to traffic under 21 U.S.C.
§ 841, “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.”
USSG §2D1.1(b)(1). “The enhancement should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the offense.” Id. §2D1.1 comment.
n.3(A). Pryor argues that there was insufficient evidence to demonstrate that he possessed a
firearm in connection with his drug-trafficking offense. We review a district court’s
interpretations of the Sentencing Guidelines de novo and factual findings at sentencing for clear
error. United States v. Greeno, 679 F.3d 510, 514 (6th Cir. 2012). “A district court’s finding
that a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly
erroneous standard of review.” United States v. Benson, 591 F.3d 491, 504 (6th Cir. 2010)
(quoting United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)).
The application of §2D1.1(b)(1) involves a two-part test. First, the government has the
burden of demonstrating “by a preponderance of the evidence that ‘(1) the defendant actually or
constructively “possessed” the weapon, and (2) such possession was during the commission of
the offense.’” United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007) (quoting United States
v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996)). Once that burden is met, the enhancement applies
unless the defendant can present evidence to show that it was “‘clearly improbable’ that the
weapon was connected to the offense.” Greeno, 679 F.3d at 514 (quoting Catalan, 499 F.3d at
606).
It is clear that Pryor possessed a firearm during the conspiracy to traffic in heroin. He
was pulled over after leaving a house where heroin had been sold, having collected the proceeds
of a drug transaction. There is no need for the government to demonstrate the connection
between the firearm and the crime to shift the burden. See United States v. Dixon, 262 F. App’x
706, 711 (6th Cir. 2008); United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991) (“The
No. 15-2123 United States v. Pryor Page 14
government does not have to produce any further evidence establishing a connection between the
weapon and the offense for § 2D1.1(b)(1) enhancement to be appropriate.”), abrogated on other
grounds by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002). In Dixon, the
firearm was in a car that the defendant drove to the meeting place and left in an adjacent lot
before walking to a building to perform a drug purchase. Those circumstances were sufficient to
shift the burden to the defendant. Much like in United States v. Moses, 289 F.3d 847 (6th Cir.
2002), Pryor “kept [a] firearm[] in his [car] during the period of the conspiracy . . . [and] used his
[car] to perform acts in furtherance of the conspiracy; namely,” to collect drug proceeds. Id. at
850. The government has met its burden.
Once the burden shifts to the defendant, he must demonstrate that it was “clearly
improbable” that the weapon was connected to the offense. In examining the probability of a
connection, the court weighs a number of factors, including:
(1) the type of firearm involved; (2) the accessibility of the weapon to the
defendant; (3) the presence of ammunition; (4) the proximity of the weapon to
illicit drugs, proceeds, or paraphernalia; (5) the defendant's evidence concerning
the use of the weapon; and (6) whether the defendant was actually engaged in
drug-trafficking, rather than mere manufacturing or possession.
Greeno, 679 F.3d at 515 (citations omitted). Here, the weapon was a Glock pistol, not an antique
musket or hunting rifle that might be impractical in connection with drug trafficking. The
weapon was concealed on the defendant and was loaded. Pryor was arrested with the proceeds
on him in the car while departing from the location of a drug transaction. While it is possible
that Pryor happened to be carrying his legally licensed firearm with him without any connection
to the conspiracy, it is just as likely (if not far more so) that he brought the gun to protect himself
and his trade. Cf. United States v. Penaloza, 648 F. App’x 508, 519 (6th Cir. 2016); United
States v. Shults, 68 F. App’x 648, 654 (6th Cir. 2003). This possibility is insufficient to show
that the connection to the offense was clearly improbable.
Because Pryor cannot demonstrate that the district court committed clear error in
applying the sentencing enhancement, we affirm the district court’s sentence.
No. 15-2123 United States v. Pryor Page 15
IV
There is something peculiar in the fact that the only reason that Jermaine Pryor is able to
raise his right to self-representation claims is because his appointed counsel is raising it for him;
otherwise, Pryor would insist only on his jurisdictional defense. Here, however, neither
argument is compelling. The Constitution provides defendants the choice to either use the
assistance of counsel or go it alone. While we must be vigilant against removing that right to the
choice, Pryor himself refused to make the choice or engage the court. Where a court has tried
and failed to perform a colloquy due directly to the defendant’s failure to cooperate and that
defendant has not made an indication that he will cooperate in the future, the court may deem the
right waived. The district court was justified in denying the request to proceed pro se, the voice
testimony was properly admitted, and the sentencing enhancement was properly applied. For
these reasons, we AFFIRM the judgment of the district court.