United States v. Joshua Conlan

Case: 13-50842 Document: 00513042987 Page: 1 Date Filed: 05/14/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 13-50842 FILED

May 14, 2015

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

JOSHUA CONLAN, Also Known as Joco,

Defendant–Appellant.

Appeals from the United States District Court

for the Western District of Texas

Before SMITH, PRADO, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

A jury found Joshua Conlan guilty of stalking a television news reporter

(“JMP”) and her husband (“JP”) in violation of 18 U.S.C. § 2261A. He raises

ten issues on appeal, involving sufficiency of the evidence; unconstitutional

vagueness; double jeopardy; suppression of evidence; withdrawal and substi-

tution of counsel; denial of self-representation; juror misconduct; speedy trial

violations; and sentencing. We affirm.

I.

Conlan and JMP dated as teenagers but had no further contact until

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JMP appeared on national news networks several years later. Conlan sent her

a flirtatious Facebook message; she responded politely but made it plain that

she was not interested in him romantically. He then sent a large bouquet of

flowers to her workplace with a note reading, “The next time our paths cross,

I will not know hesitation.” Worried about her safety, JMP sought help from

local police and, at an officer’s suggestion, sent Conlan an email explaining

that she did not want any communication from him.

Conlan then began an escalating, year-long campaign of email, text-

message, social-media, telephonic, and face-to-face contact with JMP, her fam-

ily, work colleagues, and church members. Many of the messages were hateful,

threatening, and graphically sexual. JMP repeatedly asked Conlan’s brothers

to intervene. That effort was unsuccessful, and Conlan accused JMP and JP

of violating his privacy, “not something [he would] take lightly,” and if she did

not “straighten out this s--t in person,” he would “be forced to return the favor.”

He told her that “things would get worse” and asked her to “send [him] a pretty

picture once a week, that would keep [him] under control . . . .” He sent a

package to her workplace containing a cellphone that had lip marks on the

screen. He also sent her a single-line email reciting her home address and

repeatedly told her to kill herself.

The messages did not stop after Detective Michael King told Conlan that

his communications were unwelcome and that he would be arrested if he came

to Austin, Texas, where JMP and JP resided. Instead, Conlan sent JMP a

message that read, “You know what? I can come to you. Can Austin’s finest

brave that?”

Conlan also sent messages to JP, a professional musician. He com-

mented, on a blog post about JMP’s work, that he could not “wait for chicken

head hunting in Texas” and that he was “[g]oing to be in every little bitch music

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shop every weekend every night until I find the right chicken head.” He sent

JP a Facebook message asking, “Are you scared, princess?” and messages to

JMP stating, “I was thinking about beating the s--t out of princess” and,

“Doesn’t princess want a face-to-face confrontation?” Conlan disparaged JMP

in emails to the leadership of her church and went to her parents’ house asking

to see her.

Shortly thereafter, Conlan drove from Missouri to JMP and JP’s house.

As JP was driving from their residence, he saw a white vehicle with Missouri

plates moving slowly and recognized Conlan as the driver. Conlan went

around the block and passed JP a second time. Fearing that that he would be

attacked, JP called the police and went to a police substation. Conlan was

arrested at a nearby motel pursuant to a warrant; in his motel room, police

found cellphones that had been used to call JMP’s workplace and obtain

directions to her house, and a laptop that contained Internet searches for her

name. A loaded handgun and riot stick were found in Conlan’s vehicle.

II.

Conlan was indicted on three counts of interstate stalking in violation of

18 U.S.C. § 2261A. The district court found him incompetent to stand trial and

ordered him committed to the custody of the Attorney General. 1 The court

later found him competent, and a grand jury returned a superseding indict-

ment with the same three counts: violations of § 2261A(2) as to JMP (Count

One) and JP (Count Three), and § 2261A(1) (Count Two). A jury found Conlan

guilty of all charges, and he was sentenced to ninety-six months of imprison-

ment and three years of supervised release.

1Conlan appealed his detention, and we dismissed the case as moot. See United States

v. Conlan, 520 F. App’x 246, 247 (5th Cir. 2013) (per curiam) (finding that Conlan was

detained under an unchallenged detention order).

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III.

Conlan challenges the sufficiency of evidence from which a jury could

conclude that he acted “with the intent to kill, injure, harass, intimidate, or

place under surveillance with the intent to kill, injure, harass, or intimidate”

JMP, as required by § 2261A. We “review[] the record to determine whether,

considering the evidence and all reasonable inferences in the light most favor-

able to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” 2

Intent is often established by inference from circumstantial evidence.

See United States v. Pruett, 681 F.3d 232, 239 (5th Cir. 2012) (per curiam). The

increasingly ominous tone and content of his messages reveal Conlan’s desire

to subject JMP to unwanted sexual acts, for her to die, and for a violent con-

frontation with JP and police. Instead of desisting when told to do so by JMP,

his family, and the police, Conlan escalated his behavior by contacting JMP’s

colleagues, church leaders, and father, culminating in an interstate trip to her

house armed with a handgun and riot stick. 3 There was sufficient evidence for

a rational jury to conclude beyond a reasonable doubt that Conlan acted with

the requisite intent. 4

IV.

Conlan maintains that 18 U.S.C. § 2261A is unconstitutionally vague

because neither “harass” nor “intimidate” is defined. We review that “chal-

lenge for plain error because he did not present [it] to the district court.”

2United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir.) (en banc), cert. denied,

135 S. Ct. 170 (2014).

3Although Conlan maintains that the gun and riot stick should have been suppressed,

that evidence was properly before the jury, as explained infra.

4Conlan’s sole authority, United States v. Infante, 782 F. Supp. 2d 815 (D. Ariz. 2010),

involved significantly more benign facts.

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United States v. Howard, 766 F.3d 414, 428 (5th Cir. 2014). A penal statute is

unconstitutionally vague “if the conduct it prohibits is not clearly defined.” Id.

“To satisfy constitutional due process, ‘a penal statute [must] define the crim-

inal offense [1] with sufficient definiteness that ordinary people can under-

stand what conduct is prohibited and [2] in a manner that does not encourage

arbitrary and discriminatory enforcement.’” 5 As every court of appeals to con-

sider the question has held, § 2261A satisfies both of those requirements. 6

The statute need not define “harass” and “intimidate” because they are

not obscure words and are readily understandable by most people. 7 Any vague-

ness concerns are further alleviated by the list of easily understood terms sur-

rounding “harass” and “intimidate”—“kill, injure . . . or cause substantial

emotional distress”—and by the statute’s scienter requirement, which narrows

its scope and mitigates arbitrary enforcement. 8

Conlan’s fear that § 2261A criminalizes “otherwise legal actions—such

5Howard, 766 F.3d at 428 (alterations in original) (quoting Skilling v. United States,

561 U.S. 358, 403 (2010)).

6 See United States v. Osinger, 753 F.3d 939, 944–45 (9th Cir. 2014); United States v.

Shrader, 675 F.3d 300, 309–12 (4th Cir. 2012); United States v. Bowker, 372 F.3d 365, 380–

83 (6th Cir. 2004), vacated, 543 U.S. 1182, reinstated in relevant part, 125 F. App’x 701 (6th

Cir. 2005); see also United States v. Sayer, 748 F.3d 425, 433–36 (1st Cir. 2014) (rejecting a

facial and as-applied First Amendment challenge to § 2261A(2)(A)); United States v. Petrovic,

701 F.3d 849, 854–56 (8th Cir. 2012) (same).

7See Shrader, 675 F.3d at 310 (“Most people would readily understand the former to

mean ‘to disturb persistently; torment, as with troubles or cares; bother continually; pester;

persecute,’ and the latter to mean ‘to make timid; fill with fear.’” (quoting Random House

Dictionary of the English Language 870, 1000 (2d ed. 1987))); Bowker, 372 F.3d at 381 (“[T]he

meaning of [‘harass’ and ‘intimidate’] ‘can be ascertained fairly by reference to judicial

decisions, common law, dictionaries, and the words themselves because they possess a com-

mon and generally accepted meaning.’” (quoting Staley v. Jones, 239 F.3d 769, 791–92 (6th

Cir. 2001))).

8 See Shrader, 675 F.3d at 311; Osinger, 753 F.3d at 945–47; see also Howard, 766

F.3d at 429–30 (rejecting a vagueness challenge to a criminal statute and recognizing that a

scienter requirement narrows its scope and limits arbitrary enforcement).

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as sending a letter or traveling from one state to another . . . even if some of

those actions were undertaken without any ill intent” is unfounded. As a pre-

liminary matter, he cannot rely on hypothetical vagueness arguments because

§ 2261A “clearly proscribed” his year-long campaign of escalating sexual

innuendo, threats of physical violence, and unwanted contacts with JMP’s

family, friends, and colleagues, culminating in an interstate trip to his victims’

house. 9 Furthermore, the statute defines “course of conduct” as “a pattern of

conduct composed of 2 or more acts, evidencing a continuity of purpose.”

18 U.S.C. § 2266(2). That makes clear that the statute’s intent requirement

“modifies the cumulative course of conduct as a whole,” Shrader, 675 F.3d

at 311, and “avoids sweeping up innocent acts,” id. at 312.

Moreover, unlike the restriction on wearing “a mask with the intent to

intimidate, threaten, abuse or harass any other person” at issue in Church of

the American Knights of the Ku Klux Klan v. City of Erie, 99 F. Supp. 2d 583,

591 (W.D. Pa. 2000) (internal quotation marks omitted), on which Conlan

relies, § 2261A does not criminalize constitutionally protected free expression.

To violate the statute one must both intend to cause victims serious harm and

in fact cause a reasonable fear of death or serious bodily injury. See Shrader,

675 F.3d at 310. That combination of “intent and effect” distinguishes § 2261A

from “the ordinance in Ku Klux Klan, which did not require that the harass-

ment or intimidation result in any particular type of reaction in the audience.”

9 See United States v. McRae, 702 F.3d 806, 837 (5th Cir. 2012) (“A person whose

conduct is clearly proscribed by a statute cannot . . . complain that the law is vague as applied

to the conduct of others.”); see also Osinger, 753 F.3d at 945 (concluding that defendant’s

“unrelenting harassment and intimidation . . . was not based on conduct that he ‘could not

have known was illegal’” (quoting United States v. Kilbride, 584 F.3d 1240, 1256 (9th Cir.

2009))); Sayer, 748 F.3d at 436 n.10; Shrader, 675 F.3d at 312; Bowker, 372 F.3d at 383

(deciding that defendant’s “campaign of threatening and harassing conduct” toward news

reporter, including after FBI agent warned him to stop, “clearly fell within the statute’s

prohibition”).

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Bowker, 372 F.3d at 382. Conlan has not shown, on plain-error review, that

§ 2261A is unconstitutionally vague.

V.

Conlan contends that his sentences on Counts One and Three violate the

Double Jeopardy Clause because “the alleged course of conduct [for both

offenses is] identical.” “We review defendant’s contention of multiplicitous

sentences, which involves an issue of double jeopardy, for plain error.” United

States v. Dixon, 273 F.3d 636, 642 (5th Cir. 2001). Sentences are multiplicitous

where a defendant “receive[s] more than one sentence for a single offense.” 10

The analysis begins by identifying the statute’s “unit of prosecution,” relying

in the first instance on the statutory language. See id. If the unit of prosecu-

tion is uncertain, “ambiguity should be resolved in favor of lenity.” Bell v.

United States, 349 U.S. 81, 83 (1955).

The plain language of § 2261A(2) “unambiguously contemplate[s] that

the unit of prosecution is the targeted individual, requiring that the defendant

act with intent towards a particular ‘person,’ that his actions produce the

requisite effect in ‘that person,’ and defining punishment [in § 2261(b)(1)–(3)]

in terms of the effect on ‘the victim.’” Shrader, 675 F.3d at 313–14. Citing this

court’s precedent, the Shrader panel found further support for its conclusion

because the Blockburger 11 test was not violated—the government needed to

“prove different intents to harm two victims to convict the defendant on the

two separate counts.” 12 Conlan’s analogies to other criminal statutes are

10Dixon, 273 F.3d at 641 (quoting United States v. Galvan, 949 F.2d 777, 781 (5th Cir.

1991) (internal quotation marks omitted)).

11 Blockburger v. United States, 284 U.S. 299, 304 (1932).

12 Shrader, 675 F.3d at 314 (citing United States v. Swaim, 757 F.2d 1530, 1536–37

(5th Cir. 1985)).

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unavailing because, unlike § 2261A(2), those statutes were ambiguous. 13 His

comparison to United States v. Lilly, 983 F.2d 300, 303 (1st Cir. 1992), is

equally unhelpful because that case involved a “unitary scheme” to defraud “a

single bank,” but Conlan intended to harass two different victims. Conlan has

not shown plain error in the imposition of separate sentences for Counts One

and Three.

VI.

Conlan avers that evidence recovered from his motel room and car should

have been suppressed. “When reviewing a . . . denial of a . . . motion to sup-

press, we accept as true the district court’s factual findings unless clearly

erroneous and we consider all questions of law de novo.” United States v.

McKinnon, 681 F.3d 203, 207 (5th Cir. 2012) (per curiam). “The evidence and

inferences therefrom are reviewed in the light most favorable to the [g]overn-

ment as the prevailing party.” Id. The government has the burden of proving

the validity of a warrantless search by a preponderance of the evidence. Id.

We may affirm the ruling on any ground supported by the record. United

States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).

A.

After JP contacted the police, a bulletin was issued stating that Conlan

was wanted on a harassment warrant; was potentially armed and mentally

unstable; and was seen driving a white Honda with Missouri plates near the

home of the victim, who had been placed in protective custody. Officers saw

Conlan’s vehicle at a motel, and they had a manager call him to the front desk,

13See id. (distinguishing cases cited by Conlan—Bell and Ladner v. United States, 358

U.S. 169 (1958)—because the lenity concerns animating those decisions were inapplicable to

§ 2261A(2), whose “statutory scheme” speaks “clearly and without ambiguity” (quoting Bell,

349 U.S. at 84) (internal quotation marks omitted)).

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where he was arrested. An officer then asked Conlan whether he wanted to

get anything from his room before being taken to the station. He answered

affirmatively, and officers accompanied him to the room and did a protective

sweep. At Conlan’s request, they retrieved his wallet. His laptop and two

cellphones, described as “on the bed” and “in plain view” by the officers, were

also taken.

The district court found that the laptop and cellphones were properly

seized under the plain-view doctrine, which allows for “a seizure if (1) the

officers lawfully entered the area where the items could be plainly viewed;

(2) the incriminating nature of the items was immediately apparent; and

(3) the officers had a lawful right of access to the items.” Waldrop, 404 F.3d at

368. Conlan maintains that the officers were not lawfully present because

“they created a sitution [sic] where [he] woud [sic] necessarily be without his

effects, and . . . basically forced [him] into requesting a return to his room.” He

does not elaborate on that argument, and the record does not support it. Had

the officers wanted access to his room they could have executed the arrest war-

rant there, and nothing suggests that Conlan was pressured into returning to

his room. Under Washington v. Chrisman, 455 U.S. 1, 7 (1982), it was permis-

sible for the officers to accompany Conlan to his room and seize evidence in

plain view. 14

Conlan urges that the second prong of the plain-view doctrine was not

satisfied because “phones and laptops are used everywhere,” and there was

“nothing inherently incriminating about a cellphone or a laptop in a hotel

room.” As a threshold matter, the governing standard demands not that items

14 Nothing in Chrisman suggests that it was improper for the officers to ask whether

Conlan wanted to get anything from his room, as distinguished from Conlan’s making the

inquiry. See United States v. Harness, 453 F.3d 752, 756 (6th Cir. 2006); United States v.

Garcia, 376 F.3d 648, 651 (7th Cir. 2004).

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be “inherently incriminating,” but that their incriminating nature be “imme-

diately apparent.” 15 “The incriminating nature of an item is ‘immediately

apparent’ if the officers have ‘probable cause’ to believe that the item is either

evidence of a crime or contraband.” 16 That standard was met because

Detective King, the lead investigator who instructed an officer to seize the

items, was aware of Conlan’s harassing electronic communications. 17

B.

The gun was found under a hat on the floor of the passenger’s side of

Conlan’s vehicle; the riot stick was found behind the driver’s seat. The court

denied the suppression motion on the ground that the vehicle could properly

have been impounded as an instrument of the crime and, “as a result of an

inventory search, [officers] would have found the weapon and the nightstick

regardless.” 18

“[T]he police may seize a car from a public place without a warrant when

they have probable cause to believe that the car itself is an instrument or

evidence of crime.” United States v. Cooper, 949 F.2d 737, 747 (5th Cir. 1991).

“[P]olice may make a warrantless inventory search of a legitimately seized car,

as long as the inventory search is conducted according to established

15 See Horton v. California, 496 U.S. 128, 136 (1990); Waldrop, 404 F.3d at 368–69.

16Waldrop, 404 F.3d at 369 (quoting United States v. Buchanan, 70 F.3d 818, 826 (5th

Cir. 1995)) (internal quotation marks omitted).

17 See id. at 369–70 (holding plain-view seizure appropriate when made in reliance on

collective knowledge of officers who are in communication).

18 The government claimed that the “community caretaker” exception applied because

officers testified that a motel manager had told them that Conlan was no longer was allowed

to stay at the motel and that his vehicle and belongings could not be left there, but the court

did not completely credit that testimony. See McKinnon, 681 F.3d at 208 (“In considering

whether this exception applies, our constitutional analysis hinges upon the reasonableness

of the ‘community caretaker’ impound viewed in the context of the facts and circumstances

encountered by the officer.”).

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procedures of the searching police department.” Id. at 748. 19 Conlan suggests

that exigent circumstances, in addition to probable cause, are required to seize

a vehicle from a motel parking lot. But his cited case, United States v. Sinis-

terra, 77 F.3d 101 (5th Cir. 1996), undermines that argument. In reversing an

order suppressing evidence found during a warrantless vehicle search in a mall

parking lot, Sinisterra reaffirmed precedent upholding “evidence seized in war-

rantless searches of vehicles which were legally parked in privately-owned

motel parking lots where there was probable cause to search but no showing of

exigent circumstances.” 20 Because a warrantless search of a car in a motel

parking lot does not require exigent circumstances, 21 and there was probable

cause that the vehicle was evidence and an instrumentality of a crime, 22 the

court properly denied suppression. 23

19Conlan has not challenged the inventory procedures used by the police. See Cooper,

949 F.2d at 748.

20 Sinisterra, 77 F.3d at 105 (citing United States v. Buchner, 7 F.3d 1149, 1150–51,

1154–55 (5th Cir. 1993); United States v. Ervin, 907 F.2d 1534, 1536–39 (5th Cir. 1990)); see

also Florida v. White, 526 U.S. 559, 565–66 (1999) (rejecting Fourth Amendment challenge

to warrantless seizure of car in employer’s parking lot, which the Court characterized as a

“public area”).

21There is some confusion as to when exactly the police discovered the weapons. Offi-

cer Magill testified that he found the weapons during an inventory search of the vehicle inci-

dent to impoundment, but the district court recalled that the officers made the discovery

while placing Conlan’s possessions in the car. Regardless of the timing, the existence of prob-

able cause to seize the vehicle as evidence and an instrumentality of the offense of interstate

stalking and subject it to an inventory search made the lawful discovery of the weapons

inevitable.

22Conlan did not merely drive across state lines in order to commit an offense; he used

the vehicle to drive past the victims’ house, an act that formed part of his course of criminal

conduct. In Cooper, 949 F.2d at 748, we cautioned that “absent probable cause to believe the

car contains contraband or evidence of crime, a warrantless seizure must be based on proba-

ble cause to believe the car itself is an instrument or evidence of crime, not merely that the

car’s owner committed a crime.” Nevertheless, we found sufficient evidence that a vehicle

used in a robbery qualified as “both evidence and an instrument of a crime,” id.—a conclusion

that applies here as well.

23 Any error would have been harmless because the jury would have found Conlan

guilty beyond a reasonable doubt even if the evidence had been suppressed. See United States

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VII.

Conlan asserts that the district court abused its discretion by granting

his attorney leave to withdraw ten days before trial. “The withdrawal of an

attorney in a given case is a ‘matter entrusted to the sound discretion of the

court and will be overturned on appeal only for an abuse of that discretion.’” 24

David Gonzalez was Conlan’s second appointed attorney, replacing an

Assistant Federal Public Defender who had moved to withdraw at Conlan’s

request. At the hearing on Gonzalez’s motion to withdraw, a federal agent

testified that Conlan had told a cooperating inmate that he was planning to

kill Gonzalez and flee to Belize. Gonzalez stated that Conlan’s threats could

“jeopardize [his] effectiveness as an advocate,” and, after consulting the State

Bar of Texas Ethics Hotline, he thought there was “an irreconcilable conflict.”

The court found that there was “a reasonable likelihood that Mr. Conlan

has threatened bodily harm against . . . Mr. Gonzalez,” which created “a per-

sonal conflict of interest” that “is incurable and may not be waived.” The court

granted the motion to withdraw ten days before trial and appointed Bradley

Urrutia to represent Conlan. Five days before trial, the court offered Urrutia

more time to prepare, but he declined, stating that he was “prepared to go for-

ward to trial as scheduled.”

Conlan concludes, without any analysis, that the court abused its discre-

tion because “there was no conflict of interest or irreconcilable conflict,”

v. Willingham, 310 F.3d 367, 372–73 (5th Cir. 2002). His communications were proven

through testimony and JMP’s copious phone and email records; and his intent was proven

from the content of those communications and his contacts with the victims, despite warnings

to stop. Furthermore, the victims never saw the gun or riot stick, so the weapons had little

bearing on the reasonableness of their fear.

24In re Wynn, 889 F.2d 644, 646 (5th Cir. 1989) (quoting Streetman v. Lynaugh, 674

F. Supp. 229, 234 (E.D. Tex. 1987)).

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completely ignoring the court’s finding to the contrary. He also suggests that

the court did not consider whether withdrawal would delay the trial, yet the

court offered to grant Urrutia an extension multiple times. Despite his conclu-

sional statement that he was adversely affected by the withdrawal, Conlan

does not explain how Urrutia’s performance was deficient. It was not an abuse

of discretion to grant Gonzalez’s motion to withdraw.

VIII.

Conlan avers that the district court erred by denying his requests for

self-representation and to substitute appointed counsel. “We review de novo

the constitutional permissibility of [a defendant’s] attempt to represent him-

self . . . .” United States v. Cano, 519 F.3d 512, 515 (5th Cir. 2008). A “trial

court’s refusal to appoint substitute counsel is reviewed for an abuse of discre-

tion.” United States v. Simpson, 645 F.3d 300, 307 (5th Cir. 2011).

A.

On the first day of trial, Conlan declared that he would like to represent

himself on the ground that Urrutia was unprepared and that Conlan had sent

the court a letter to that effect. On the second day of trial, the court received

the letter, which stated that Conlan wanted new counsel, and “in the mean-

time,” he would “like to assume self-representation.” The court denied both

motions after finding that the requests did not represent a “clear and unequivo-

cal” desire to represent himself but instead were “an attempt to manipulate

this Court and to delay this case at the last minute and to attempt to . . . file

additional motions that . . . no attorney would file for [him].”

Although defendants have a constitutional right to self-representation,

the invocation of that right must be “clear[] and unequivocal[].” Faretta v. Cal-

ifornia, 422 U.S. 806, 835 (1975). A general expression of dissatisfaction with

an attorney should not be construed as “an invocation of the Faretta right to

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represent oneself, especially when made on the morning of trial,” 25 and “a

defendant’s request to represent himself at trial may be rejected if it is

intended to cause delay or some tactical advantage.” 26

Conlan contends that his numerous requests to replace various

appointed counsel were “the functional equivalent” of a clear and unequivocal

invocation of his right to self-representation. But those motions indicate that

Conlan actually wanted counsel, just counsel that would follow his every

order. 27 Furthermore, in his letter, Conlan requested only temporary self-

representation until new counsel was appointed, suggesting that he did not

clearly and unequivocally wish to represent himself. 28 The court also had rea-

son to believe that Conlan was just trying to delay: (1) the request was made

on the morning of trial, and (2) in a hearing five days earlier, Conlan said that

he wanted to file more pretrial motions, notwithstanding that the deadline had

passed, and the court had concluded that “every motion that legitimately could

be filed in this case” had already been submitted. The court did not err by

concluding that Conlan had not clearly and unequivocally invoked his right to

self-representation.

B.

“The Sixth Amendment guarantees the right to counsel, but ‘indigent

25 Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir. 1983).

26 United States v. Vernier, 381 F. App’x 325, 328 (5th Cir. 2010) (per curiam) (citing

United States v. Chapman, 553 F.2d 886, 895 (5th Cir. 1977) (stating that it was error to deny

a motion for self-representation as untimely because the right was asserted “before the jury

had been empaneled, and there [was] no suggestion that he sought to delay or disrupt the

trial”)).

The district court found that Conlan wanted a lawyer who “works under [his]

27

thumb” and files the motions he wants “regardless of how frivolous.”

Cf. Cano, 519 F.3d at 516 (finding Faretta satisfied by a motion in which the defen-

28

dant asked to “relieve or dismiss his counsel” and “invoke[d] his Constitutional Right to Self-

Representation as to the matters before the court”).

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defendants have no right to appointed counsel of their choice.’” 29 “The court is

constitutionally required to provide substitute counsel only if there is a sub-

stantial conflict or problem affecting the ability to represent the defendant—‘a

conflict of interest, a complete breakdown in communication or an irreconcila-

ble conflict which led to an apparently unjust verdict.’” 30

At no point does Conlan argue that there was a conflict or breakdown in

communication between himself and Urrutia. He states in conclusional fash-

ion that Urrutia was not prepared for trial, yet he fails to identify any argu-

ments that Urrutia could have made with additional time. Furthermore, the

district court specifically found that Urrutia was “capable and ready to pro-

ceed,” and Urrutia declined the court’s offer to delay the trial. The court also

found that Conlan’s motion was an “attempt to manipulate” the court and

delay the case. Conlan has not shown that the court abused its discretion in

declining his last-minute request to appoint a fourth lawyer.

IX.

Conlan maintains that the district court abused its discretion by denying

his request for a mistrial on the basis of jury deadlock or juror misconduct. The

jury received the case and deliberated for two hours before returning the next

morning. Shortly thereafter, the court received a note stating that one of the

jurors was disregarding the court’s instructions to base deliberations on the

evidence. The court reminded the jurors of their oaths and the instructions,

but approximately forty-five minutes later it received another note indicating

that a juror wanted to speak with the judge. The juror stated that the jury had

29 United States v. Mitchell, 709 F.3d 436, 441 (5th Cir. 2013) (quoting United States

v. Fields, 483 F.3d 313, 350 (5th Cir. 2007)).

30Id. at 441–42 (quoting United States v. Romero–Trejo, 476 F. App’x 790, 791 (5th

Cir. 2012) (per curiam)).

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possibly “reached an impasse,” explaining that, although she believed she was

following the court’s instructions and considering only the evidence presented

at trial, other jurors thought she was “out of order.” Conlan moved for a

mistrial, but the court denied that motion as premature.

To determine whether the juror was disregarding the court’s instruc-

tions, it interviewed the other jurors individually. Then the court again sum-

moned the juror at issue; she professed to understand her duty to reach a ver-

dict based on the evidence in accordance with the instructions and denied that

she was trying to avoid jury service. The court permitted her to return to delib-

erations, and the jury returned a guilty verdict two hours later.

“The decision to declare a mistrial is left to the sound discretion of the

judge, but the power ought to be used with the greatest caution, under urgent

circumstances, and for very plain and obvious causes.” 31 “[B]ased on its unique

perspective at the scene,” the district court “is in a far superior position than

[we are] to appropriately consider allegations of juror misconduct, both during

trial and during deliberations.” 32 The court was well within its discretion to

deny Conlan’s motion; it was not compelled to find a jury deadlock when there

had been less than four hours of deliberation over two days, and only one juror

said that “[p]ossibly we’ve reached an impasse.” 33 Likewise, it was appropriate

to reinstruct the jury, interview the jurors, and upon learning that the juror

believed she could follow the instructions, send her back to deliberate. See

31Renico v. Lett, 559 U.S. 766, 774 (2010) (quoting United States v. Perez, 22 U.S.

(9 Wheat.) 579, 580 (1824)) (internal quotation marks omitted).

32 United States v. Ebron, 683 F.3d 105, 126 (5th Cir. 2012) (second alteration in

original) (quoting United States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006)) (internal quotation

marks omitted).

33 Cf. United States v. Medrano, 836 F.2d 861, 865 (5th Cir. 1988) (reasoning that

mistrial was not improper where the jury sent three notes in twelve hours over two days,

with the final note stating that the deadlock could not be broken).

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Ebron, 683 F.3d at 128–29.

X.

Conlan asserts that the district court erred by denying his motion to dis-

miss the indictment on speedy-trial grounds. Although Conlan submitted a

second opening brief, “[w]e look to an appellant’s initial brief to determine the

adequately asserted bases for relief.” 34 Likewise, we do not consider the new

arguments raised in the corrected brief. 35 The district court’s legal conclusions

are reviewed de novo, its factual findings for clear error. United States v. Hale,

685 F.3d 522, 534 (5th Cir. 2012) (per curiam).

The Speedy Trial Act (“STA”) requires a trial within 70 days after the

indictment, 18 U.S.C. §§ 3161(c)(1), 3162(a)(2), but it excludes various delays

arising from pretrial proceedings. 36 Conlan was indicted on August 16, 2011,

and the speedy-trial clock stopped 12 days later when the government moved

for a competency determination. 37 The court ordered Conlan examined at a

federal medical center on September 21, and he was transported there on

November 1. Save for a 10-day grace period, Conlan assumes that the entire

34United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (quoting Knatt v. Hosp.

Serv. Dist. No. 1 of E. Baton Rouge Parish, 327 F. App’x 472, 483 (5th Cir. 2009)).

35 Although he was instructed “not [to] raise new issues or new arguments” in his

second brief, Conlan’s counsel claimed that almost nine months of additional time was rele-

vant to the speedy trial issue.

36 Of relevance here are exclusions for delays resulting from “any proceeding, includ-

ing any examinations, to determine the [defendant’s] mental competency,” § 3161(h)(1)(A);

“any interlocutory appeal,” § 3161(h)(1)(C); “any pretrial motion,” § 3161(h)(1)(D); “the fact

that the defendant is mentally incompetent . . . to stand trial,” § 3161(h)(4); and any contin-

uances granted when the court “find[s] that the ends of justice served by [the continuance]

outweigh the best interest of the public and the defendant in a speedy trial,” § 3161(h)(7)(A).

Although “delay resulting from transportation of any defendant . . . to and from places of

examination or hospitalization” is excludable, “any time consumed in excess of ten days from

the date an order . . . directing such transportation, and the defendant’s arrival at the destina-

tion shall be presumed to be unreasonable.” § 3161(h)(1)(F).

37 See § 3161(h)(1)(A); United States v. Stephens, 489 F.3d 647, 653 (5th Cir. 2007).

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time between those dates counts toward the speedy-trial clock, but any excess

time is only “presumed to be unreasonable.” § 3161(h)(1)(F) (emphasis added).

Although the district court found the presumption rebutted, 38 we need not

review that conclusion because there was no STA violation even if the entire

30-day period counts. Moreover, Conlan has failed to challenge the court’s

ends-of-justice findings, which cover this entire period, and therefore he cannot

show that they are clearly erroneous. 39

Conlan avers that there were 68 nonexcludable days between the

June 25 incompetency finding and his August 1 return to the medical facility. 40

Even if the clock would have restarted at the end of the 10-day grace period, 41

it never did so, because Conlan filed an interlocutory appeal on July 6, trig-

gering the § 3161(h)(1)(C) exclusion through this court’s June 2013 decision. 42

Conlan claims 51 nonexcludable days between the June 28, 2013, competency

determination and the August 19 trial date, but only nine of those are non-

excludable. The rest are excluded under § 3161(h)(1)(D) because Conlan filed

38The court had ordered a psychiatric examination from a federal facility—not just an

evaluation by a psychologist—and the delay was because of the unavailability of a psychiatric

bed.

39The first ends-of-justice finding, entered in September 2011, excluded all time from

the original October 3, 2011, trial date through the time that “Conlan’s mental competency

to stand trial is determined.” The second, made in June 2012, excluded “the period between

the time Conlan was taken into federal custody until the time that [his] mental condition is

so improved that th[e] trial may proceed . . . .”

40 There are fewer than 68 days between those dates.

41Compare United States v. Hernandez-Amparan, 600 F. Supp. 2d 839, 842–43 (W.D.

Tex. 2009) (holding that the ten-day period applies to the separate incompetency exclusion

under § 3161(h)(4)), with United States v. Lewis, 484 F. Supp. 2d 380, 390–91 (W.D. Pa. 2007)

(concluding that the ten-day period does not apply).

42Moreover, Conlan filed two motions that triggered the pending-motions exclusion

under § 3161(h)(1)(D): a December 7, 2012, motion to appoint new counsel, which the court

did not resolve until June 2013; and a February 4, 2013, motion to be housed in Houston,

which the court denied on March 18. Those exclusions also cover any days that Conlan claims

are nonexcludable from January 5 through February 7, 2013.

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a motion to dismiss on July 8 that required an evidentiary hearing on August 2

and oral argument on August 14, 43 and he filed a motion in limine on August

15 that the court did not resolve until the morning of trial. 44 Conlan’s STA

argument fails because any nonexcludable days do not exceed the allowable

number. 45

XI.

Conlan was sentenced to sixty months of imprisonment on Counts One

and Two, to be served concurrently, and thirty-six months on Count Three, to

be served consecutively. He maintains that the district court misinterpreted

U.S. Sentencing Guidelines (“U.S.S.G.”) § 5G1.2(d) by imposing the consecutive

sentence, but his premise is false; the court did not impose that sentence under

§ 5G1.2(d), but rather as an upward variance. Because Conlan did not make

this objection below, we review it for plain error. See United States v. Ron-

quillo, 508 F.3d 744, 748 (5th Cir. 2007).

Consecutive sentences can be used to achieve an above-guidelines sen-

tence, which is what occurred here. 46 In its Statement of Reasons, the court

43The court ruled on the motion on August 14. See United States v. Johnson, 29 F.3d

940, 942–43 (5th Cir. 1994) (“[I]f a motion requires a hearing, [the pretrial motion exclusion

applies to] the time between the filing of the motion and the hearing on that motion, even if

a delay between the motion and the hearing is unreasonable.”).

44Assuming the court took that motion under advisement on August 15, its ruling was

well within the 30-day window for a pretrial motion that does not require a hearing. See id.

45 Because of inadequate briefing, Conlan has waived any argument that his constitu-

tional right to a speedy trial was violated. Although he dedicates nine pages to the STA issue,

he mentions his constitutional right only in a concluding paragraph, stating that his “speedy

trial rights were violated both under the Sixth Amendment as well as the Speedy Trial Act.”

See Scroggins, 599 F.3d at 477; Adams v. Unione Mediterranea di Sicurta, 364 F.3d 646, 653

(5th Cir. 2004) (“Issues not raised or inadequately briefed on appeal are waived.”).

46 See Ronquillo, 508 F.3d at 749–52; United States v. Saldana, 427 F.3d 298, 309 n.41

(5th Cir. 2005) (“[A] district court has discretion under 18 U.S.C. § 3584 to depart upwardly

by running sentences consecutively, even when U.S.S.G. § 5G1.2 would otherwise mandate

that the sentences run concurrently.”); United States v. Candrick, 435 F. App’x 404, 406 (5th

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marked the box, “The court imposed a sentence outside the advisory sentencing

guideline system.” Leaving the “Departures Authorized by the Advisory Sen-

tencing Guidelines” section blank, the court marked the box for a sentence

“above the advisory guideline range,” under “Court Determination for Sentence

Outside the Advisory Guideline System,” and identified four supporting

§ 3553(a) factors. And in explaining its sentence, the court was explicit that it

had considered two guidelines ranges—the one in the Presentence Report and

the range applicable if Conlan had received acceptance-of-responsibility

credit—but opted instead for an above-guidelines sentence driven by the

§ 3553(a) factors. Conlan interprets the denial of the government’s motion for

a twelve-to-fifteen year “variance/departure” to mean that the court categori-

cally rejected any variance or departure and therefore could have entered

consecutive sentences only under § 5G1.2(d). 47 That position is untenable on

plain-error review in light of the clear evidence that the court imposed an

above-guidelines sentence after considering the § 3553(a) factors. 48

The judgments of conviction and sentence are AFFIRMED.

Cir. 2011) (per curiam).

Conlan concedes that the proper vehicle for imposing a higher sentence “was either

47

a departure or variance.” Other than claiming that the court misinterpreted § 5G1.2(d),

Conlan does not make any argument that the non-guidelines sentence was unreasonable.

48See United States v. Jacobs, 635 F.3d 778, 780 & n.1, 783 (5th Cir. 2011) (per curiam)

(treating sentence as variance where court called it a departure at sentencing but “clarified

in the Statement of Reasons that it was imposing a sentence outside” the guidelines range).

20