Petition for Writ of Certiorari — Anthony Fields, Petitioner v. United States

Supreme Court briefApr 25, 2022

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NO. _____________

In The

Supreme Court of the United States

-------------------------♦-------------------------

ANTHONY FIELDS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-------------------------♦------------------------ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

-------------------------♦-------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------♦------------------------Paul Rosenzweig

Counsel of Record

LAW OFFICE OF PAUL ROSENZWEIG, ESQ.

509 C Street, NE

Washington, DC 20002

(202) 547-0660

Counsel for Petitioner

Dated: April 25, 2022

THE LEX GROUPDC ♦ 1050 Connecticut Avenue, N.W. ♦ Suite 500, #5190 ♦ Washington, D.C. 20036

(202) 955-0001 ♦ (800) 856-4419 ♦ www.thelexgroup.com

i

Questions Presented

1.

Whether the court of appeals’ decision affirming the denial of

Petitioner’s request to exercise his right to self-representation while ignoring

completely his argument of legal error is in conflict with Koon v. United States and

Faretta v. California?

2.

Whether the court of appeals’ affirmance of the district court’s denial of

Petitioner’s motion to suppress evidence seized in a traffic stop of his vehicle was

contrary to the evidence and in violation of the Fourth Amendment?

ii

List of Parties to the Proceeding

The individuals who appeared before the District Court in the criminal

proceedings were Anthony Fields, Abdul Samuels, Calvin Wright, Lacy Hamilton,

Lonnell Tucker, James Venable and Darryl Smith. Artinis Wilson, also indicted, was

a fugitive at all relevant times. The following parties appeared before the Court of

Appeals: Anthony Fields, Lonnell Tucker, Abdul Samuels and the United States of

America.

The parties to this Petition are Anthony Fields and the United States of

America.

Statement of Related Cases

Petitioner’s appeal was consolidated with those of his co-defendants, Lonnell

Tucker (D.C. Cir. No. 19-3042) and Abul Samuels (D.C. Cir. No. 19-3078) in the court

below. As of the date of the filing of this Petition, they have not sought further review

in this Court and there are no related cases.

iii

Table of Contents

Page

Questions Presented ....................................................................................................... i

List of Parties to the Proceeding ................................................................................... ii

Statement of Related Cases .......................................................................................... ii

Table of Authorities ....................................................................................................... v

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 2

Constitutional and Statutory Provisions Involved ....................................................... 2

Statement of the Case ................................................................................................... 3

Reasons for Granting the Petition ................................................................................ 8

Conclusion .................................................................................................................... 15

Appendix:

Judgment of the

United States Court of Appeals

For the District of Colombia Circuit

entered September 3, 2021 .................................................................... 1a

Order of

United States Court of Appeals

For the District of Colombia Circuit

entered September 3, 2021 .................................................................. 38a

Amended Judgment of the

United States District Court

For the District of Columbia

entered November 12, 2019 ................................................................. 39a

iv

Order of

United States Court of Appeals

For the District of Colombia Circuit

Re: Denying Petition for Panel Rehearing

entered January 13, 2022 .................................................................... 47a

Excerpts of Transcript of Pretrial Conference Proceedings before

The Honorable Amit P. Mehta

Re: Ruling on Traffic Stop

on February 21, 2019 ........................................................................... 48a

Excerpts of Jury Trial Proceedings before

The Honorable Amit P. Mehta

(Morning Session)

Re: Ruling on Self Representation

on March 4, 2019 .................................................................................. 60a

v

Table of Authorities

Page(s)

Cases

Faretta v. California,

422 U.S. 806 (1975) ............................................................................... 7, 8, 9, 10

Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.,

542 U.S. 177 (2004) ........................................................................................... 12

Koon v. United States,

518 U.S. 81 (1996) ................................................................................. 7, 8, 9, 11

Navarette v. California,

572 U.S. 393 (2014) ........................................................................................... 12

United States v. Bervaldi,

226 F.3d 1256 (11th Cir. 2000) ......................................................................... 14

United States v. Cortez,

449 U.S. 411 (1981) ........................................................................................... 12

United States v. Dougherty,

473 F.2d 1113 (D.C. Cir. 1972) ............................................................. 5, 6, 9, 10

United States v. Lopez,

482 F.3d 1067 (9th Cir. 2007) ........................................................................... 14

United States v. Sharpe,

470 U.S. 675 (1985) ........................................................................................... 12

United States v. Terry,

392 U.S. 1 (1968) ............................................................................................... 12

United States v Tucker,

12 F.4th 804 (D.C. Cir. 2021).............................................................................. 1

United States v. Tucker,

Nos. 19-3042, 19-3043, 19-3078 (D.C. Cir. Jan. 13, 2022) ................................. 1

United States v. Veteto,

701 F.2d 136 (11th Cir. 1983) ............................................................................. 7

vi

United States v. Washington,

353 F.3d 42 (D.C. Cir. 2003) ......................................................................... 5, 10

Whren v. United States,

517 U.S. 806 (1996) ............................................................................................. 7

Constitutional Provisions

U.S. CONST. amend. IV .........................................................................................passim

U.S. CONST. amend. VI .........................................................................................passim

Statutes

18 U.S.C. § 3231 ............................................................................................................. 2

21 U.S.C. § 841 ............................................................................................................... 3

21 U.S.C. § 846 ............................................................................................................... 3

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 1291 ............................................................................................................. 2

Rule

Sup. Ct. R. 10(a) ............................................................................................................. 8

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the District of Columbia Circuit.

Opinions Below

The oral opinion of the district court denying Petitioner’s motion to represent

himself is unreported. See Pet. App. 60a-65a.

The oral opinion of the district court

denying Petitioner’s motion to suppress certain evidence is also unreported. See Pet.

App. 48a-59a.

The opinion of the court of appeals, affirming Petitioner’s conviction is reported

at United States v Tucker, 12 F.4th 804 (D.C. Cir. 2021). See Pet. App. 1a-37a. The

decision denying Petitioner’s motion for rehearing is unreported. United States v.

Tucker, Nos. 19-3042, 19-3043, 19-3078 (D.C. Cir. Jan. 13, 2022). See Pet. App. 47a.

2

Jurisdiction

The District Court had jurisdiction over this matter pursuant to 18 U.S.C.

§ 3231. The jurisdiction of the Court of Appeals was invoked pursuant to 28 U.S.C.

§ 1291. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). The Court of

Appeals entered judgment on September 3, 2021 and denied Petitioner’ timely

petition for rehearing on January 13, 2022. On March 15, 2022, The Chief Justice

granted Petitioner an extension of time within which to file a Petition for a Writ of

Certiorari to, and including, May 13, 2022.

Constitutional and Statutory Provisions Involved

The Sixth Amendment to the United States Constitution provides, in relevant

part, that: “In all criminal prosecutions, the accused shall enjoy the right . . . to have

the assistance of counsel for his defense.” U.S. Const. amend. VI.

The Fourth Amendment to the United States Constitution provides, in

relevant part, that: “The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be violated

. . . .” U.S. Const. amend. IV.

3

Statement of the Case

1.

On August 30, 2018, Petitioner Anthony Fields, was charged in an

Indictment [ECF 1] 1 with an assortment of drug distribution and criminal conspiracy

charges relating to his alleged membership in a drug trafficking network, in violation

of 21 U.S.C. §§ 841, 846. Following trial by jury, Petitioner was convicted of the

narcotics conspiracy charge and also was found guilty of four counts of possession

with intent to distribute PCP, Heroin, Fentanyl, Bupenorphine (Suboxone), and

Synthetic Cannabinoids. In addition, the jury convicted Petitioner of unlawful

maintenance of premises to manufacture, distribute, store, and use a controlled

substance.

Thereafter, Petitioner was sentenced to concurrent 192 months

imprisonment and various concurrent terms of supervised release on the several

counts for which he was convicted. See Pet. App. 39a-46a.

2.

a.

Prior to trial Petitioner moved to suppress the evidence to be

introduced against him arising from a pretextual traffic stop. As recounted in pretrial testimony, see CA App. 98-140, 2 on November 28, 2017, Petitioner was subject

to a traffic stop grounded on suspicion of narcotics trafficking.

After observing

Petitioner leave a record store (suspected of being a drug trafficking location) and

then drive to a parking lot to meet another person, officer Sean Chaney surmised that

Petitioner had engaged in a drug transaction.

1 The abbreviation “ECF” denotes a docket entry on the District Court’s electronic court docket system.

References to “CA App.” are to the Joint Appendix filed with Petitioner’s opening brief in the court

below.

2

4

On that basis Chaney asked uniformed Prince George’s County officers to

conduct a traffic stop of Petitioner’s car. That stop, conducted by officer Jonathan

Haskett and other members of his team, was based on Haskett’s claim that Petitioner

was “speeding” in a mall parking lot -- in particular, Petitioner was going “a little fast

for people to – for [him] to react to people walking across the road” in the parking lot.

Id. at 133.

Crucially, Haskett did not immediately conduct a stop of Petitioner’s car.

Rather Haskett “sat there and watched . . . for a few minutes” to see if anything else

would happen. Or, as he put it in his report of events, Haskett “maintained a visual

of the vehicle to see if it would become mobile, in an attempt to conduct a traffic stop

for the traffic violation.” The car however, did not “become mobile,” and a “couple [of]

minutes” later, a stationary traffic stop was initiated. Id. at 134-35, 145-47.

b.

The district court denied Petitioner’s suppression motion.

Though the court expressed doubt that “the stop was conducted because [Petitioner]

was speeding. He was observed speeding but the stop was going to happen anyway,”

id. at 144, it nonetheless determined that the traffic stop was objectively reasonable

as there was probable cause to believe a traffic violation has occurred, irrespective of

the officers’ actual motivations. See Pet. App. 54a-57a.

c.

The evidence from the stop, as well as the fruits of a subsequent

related search of premises associated with Petitioner were all admitted at trial and

formed a significant part of the basis for Petitioner’s conviction.

5

3.

a.

Prior to trial Petitioner was represented by three separate

counsel reflecting the challenges he faced in securing counsel with whom he could

work. Shortly before trial, the district court appointed Ms. Kira West to represent

Petitioner.

On the fourth day of trial, Petitioner’s dissatisfaction with Ms. West was such

that he refused to attend trial.

See CA App. 337, 346-48. The next trial day,

Petitioner advised the court that he wanted to represent himself. As Petitioner put

it: “Ms. West has only been my attorney for three months. . . . Ms. West has done a

good job filing motions and meeting deadlines, things of that nature. But Ms. West

doesn’t know the details of the case.” Petitioner continued: “the discovery in this case

is voluminous, right? . . . so it’s almost impossible for Ms. West to accurately – I mean

to effectively cross-examine the witnesses against me without knowing the case. It’s

impossible . . . . I thought that maybe … she would be ready; but as the days go on in

the trial and I see her cross-examine, I understand that she’s not ready. So I have no

other recourse but to represent myself, because this is my life on the line . . . .” Id. at

360-61.

b.

The district court rejected Petitioner’s request. Relying on United States

v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) and United States v. Washington, 353

F.3d 42 (D.C. Cir. 2003), the court held that self-representation is an absolute right

only if exercised before trial. Critically, for purposes of this Petition, in so ruling the

district court misconstrued the constitutional nature of the Sixth Amendment right

to self-representation, Initially, when advised that Petitioner had a Sixth

6

Amendment right to self-representation, the district court responded: “No, he doesn’t,

but go ahead.” CA App. 358. Thereafter, in ruling on the motion, the district court

confirmed its misunderstanding of the nature of Petitioner’s claim, saying: “I don’t

understand why they [the D.C. Circuit] said it’s a constitutional right, because

Dougherty didn’t say that.” Pet. App. 63a. Biased by this legal misunderstanding,

the district court proceeded to balance the equities as it might with any other trial

management issue and concluded that it should exercise its discretion to deny

Petitioner’s request. See id. at 63a-65a.

c.

Trial proceeded to completion with Ms. West acting as Petitioner’s

counsel throughout.

4.

Petitioner timely appealed his conviction and sentence. [ECF 278]. On

appeal the court of appeals affirmed Petitioner’s conviction.

a.

As to Petitioner’s Sixth Amendment claim, the court of appeals

first concluded that the standard of review was abuse of discretion. See Pet. App. 9a.

It further concluded that a defendant’s right to self-representation was diminished

once trial has begun and was not absolute. Id. at 10a.

Reviewing the district court’s weighing of potential prejudice to the

government and co-defendants the panel concluded that the district court had

correctly assessed the equities.

In particular, the court of appeals agreed that

permitting Petitioner to conduct his own defense would risk harming his

codefendants and jeopardizing their rights. Reasoning that “[a] trial involving a pro

se defendant and co-defendants who are assisted by counsel is pregnant with the

7

possibility of prejudice,” id. at 11a (citing United States v. Veteto, 701 F.2d 136, 139

(11th Cir. 1983)), and noting Petitioner’s “unwarranted hostility to fair proceedings,”

Pet. App. 11a, the court of appeals concluded that the district court had not “abuse[d]

its considerable discretion when it denied [Petitioner’s] request to represent himself.”

Id.

b.

As to Petitioner’s Fourth Amendment claim, the court of appeals

first concluded that the district court had not erred in finding the law enforcement

officer’s testimony credible. Id. at 7a. Citing Whren v. United States, 517 U.S. 806,

810 (1996), the panel then concluded that the traffic stop was reasonable if there was

probable cause to think a traffic violation had occurred. See Pet. App. 7a. It therefore

rejected any suggestion that the stop was unreasonable because it was pretextual, as

an argument foreclosed by precedent, id. at 8a, and affirmed the decision denying

Petitioner’s suppression motion (as well as his related “fruits of the poisonous tree”

argument).

5.

Petitioner sought panel rehearing, arguing that the panel had erred in

completely ignoring his alternate argument that the district court had committed per

se legal error by erroneously failing to recognize that Petitioner’s right of selfrepresentation was grounded in the Sixth Amendment. See Faretta v. California, 422

U.S. 806 (1975). Petitioner contended that by starting from a legally unsupportable

premise – that no Sixth Amendment right to self-representation existed mid-trial –

the district court’s weighing of the matter was, as a matter of law, error, and thus an

abuse of discretion necessitating a new trial. See Koon v. United States, 518 U.S. 81,

8

100 (1996).

The panel below, Petitioner contended, compounded that error by

neglecting the argument altogether. 3

The court of appeals denied Petitioner’s request for rehearing, without

comment or explanation. See Pet. App. 47a.

6.

This Petition follows, raising the questions of whether the court below

misunderstood and misapplied this Court’s Koon and Faretta precedents and

whether the admission of illegally seized evidence violated Petitioner’s Fourth

Amendment rights.

Reasons for Granting the Petition

1.

a.

The panel below failed to come to grips with the fact that the

district court committed a significant legal error in assessing Petitioner’s Sixth

Amendment claim of self-representation.

Indeed, it ignored the claim altogether.

The court of appeals’ failure to address and dispose of an issue that was fully briefed

and addressed at oral argument warrants this Court’s plenary review. See Sup. Ct.

R. 10(a) (certiorari is warranted when “a United States court of appeals . . . has

decided an important federal question in a way that . . . has so far departed from the

accepted and usual course of judicial proceedings . . . as to call for an exercise of this

Court’s supervisory power”). The court of appeals’ willful disregard of a legal issue

fully briefed and presented to it for decision satisfies this standard.

3 The issue of the district court’s legal error was squarely presented to the court of appeals.

It was

first addressed in Petitioner’s joint opening brief, see CA Br. at 33-36 (factual recitation); 44-46

(argument) and it was reasserted in the joint reply brief, see CA Reply Br. at 12-17. More to the point,

though no oral argument transcript is currently available, this per se abuse of discretion error was the

very first and principal submission made during argument before the panel. The panel’s neglect of

the issue cannot, therefore, have been inadvertent.

9

This court of appeals neglect of the per se abuse of discretion legal argument

raised by Petitioner is palpable. The opinion below makes no reference to the Koon

standard of per se error. Nor does it cite or mention, much less analyze, the district

court’s erroneous statements of law and its misunderstanding of Faretta’s

constitutional status.

We submit that neglecting an issue fairly presented is grounds for the grant of

certiorari and where, as here, the decision is erroneous, for correction. This Court

should grant review and conclude that the district court abused its discretion in

denying Petitioner’s request to represent himself.

b.

On the merits, the district court’s evaluation of Petitioner’s self-

representation request rested on a fundamentally mistaken legal premise and the

court of appeals refusal to address the issue compounded the error.

Far from

acknowledging Petitioner’s Sixth Amendment interests the district court repeatedly

denied their very existence.

The district court’s error was grounded on its misunderstanding of the time

line of the development of this Court’s self-representation jurisprudence. In its pre-

Faretta, Dougherty opinion, the D.C. Circuit court observed that “When the right [to

self-representation] is claimed after trial has begun, the court exercises its discretion.

It may weigh the inconvenience threatened by defendant’s belated request against

the possible prejudice from denial of defendant’s request. In exercising discretion, the

judge may take into account the circumstances at the time, whether there has been

prior disruptive behavior by defendant, whether the trial is in an advanced stage.”

10

Dougherty, 473 F.2d. at 1118. The district court relied on this passage in exercising

its discretion to deny Petitioner’s request for self-representation. See Pet. App. 61a62a.

Thus, the district court’s failure to recognize the constitutional nature of Fields’

right to self-representation stemmed, in large part, from the fact that Dougherty predated the recognition of a constitutional right in Faretta. As such, Dougherty was a

statutory case only. As a result, the district judge misperceived the constitutional

nature of the right.

The district court compounded its error when it turned to an analysis of

Washington, the D.C. Circuit’s later (post-Faretta) case on the issue of selfrepresentation. As the district court made clear, the D.C. Circuit’s decision confused

him: “I don’t understand why they [the D.C. Circuit] said it’s a constitutional right,

because Dougherty didn’t say that.” Pet. App. 63a (referring to United States v.

Washington, 353 F.3d 42 (D.C. Cir. 2003)).

The district court’s fundamental misunderstanding of the constitutional

nature of Petitioner’s self-representation right is also demonstrated in an exchange

that occurred earlier in the hearing.

Counsel for Petitioner’s co-defendant, Mr.

Tucker suggested that, if Petitioner’s request for self-representation were granted,

Tucker would renew his motion for severance. See CA App. 356. Thereafter, counsel

for co-defendant Calvin Wright asked to join in that motion. The following exchange

then occurred:

11

MS. HERNANDEZ: I want to join, but also want to say that I understand Mr.

Fields has a Sixth Amendment right to represent himself.

THE COURT: No, he doesn’t, but go ahead.

Id. at 358 (emphasis supplied).

In short, there was strong evidence that the district court failed to understand

the legal nature of Petitioner’s request to represent himself. By starting from a

legally unsupportable premise – that no Sixth Amendment right to selfrepresentation existed mid-trial – the district court’s equitable weighing of the matter

was, as a matter of law, error, and thus an abuse of discretion necessitating a new

trial. See Koon v. United States, 518 U.S. 81, 100 (1996) (“by definition” a court

“abuses its discretion when it makes an error of law”). The panel’s failure to assess

and review this claim was an omission that compounded the error and requires the

granting of this Petition and the Court’s review.

2.

a.

The court of appeals’ erroneous construction of the Fourth

Amendment is contrary to existing precedent of this Court and also warrants review.

In the court of appeals’ telling, the stop of Petitioner was nothing more than a traffic

stop objectively justified by speeding in a mall parking lot. But the reality is that this

was anything but a routine mall speeding stop. It was an illegal seizure lacking

probable cause.

As this Court has recognized, inaccurate or erroneous observations by an

officer are fatal to a determination of probable cause: “‘Th[e] demand for specificity

in the information upon which police action is predicated . . . is the central teaching

12

of this Court’s Fourth Amendment jurisprudence.’” United States v. Cortez, 449 U.S.

411, 418 (1981) (quoting Terry, 392 U.S. 1, 21 n.18 (1968)) (emphasis supplied).

In Petitioner’s case as in other seizures, “[t]he officer’s action must be ‘justified

at its inception.’” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S.

177, 185 (2004) (quoting United States v. Sharpe, 470 U.S. 675, 682 (1985)). “The

standard takes into account the totality of the circumstances—the whole picture.”

Navarette v. California, 572 U.S. 393, 397 (2014) (internal quotation marks omitted).

That required accuracy and specificity was missing in Petitioner’s case.

b.

Officer Haskett by his own admission decided to delay acting on

the traffic stop. If experience (if not commonsense) is any guide, that is not how a

typical traffic stop occurs. In a normal traffic stop, when observing speeding, an

officer acts immediately, stops the offender, issues a citation, and takes such other

action as might be appropriate.

Here, by his own testimony, Haskett did not act in the manner of a typical

traffic stop. Rather he waited, delaying the stop for a “couple of minutes” -- an action

that is inconsistent with the allegation that Petitioner was, in fact, speeding at the

time he was observed.

Asked to explain why he waited, Haskett said that he was waiting for the car

to “become mobile” so that he could conduct a traffic stop. But why would Haskett

want the car to become mobile if he already had probable cause to make a stop in the

first place? Common sense suggests, strongly, that a car in a mobile state is far more

unpredictable and possibly dangerous than a car that is stationary.

And so, if

13

Haskett in fact had observed a speeding offense before the car came to a rest, he

would have had every incentive to conduct the stop at that time, while the car was

not immobile.

This is especially the case because, of course, there is no guarantee that once a

car resumes motion a traffic offense will occur. It is plausible, and perhaps even

likely, that once a car restarts it will drive within the bounds of the traffic laws and

no longer be subject to a stop. Given this uncertainty, it was clearly erroneous to

credit Haskett’s suggestion that he was waiting however long it might take for an

uncertain future event to occur. If “a bird in the hand is worth two in the bush” then

an offense observed – if it truly were observed – would be worth two possible offenses

in the offing.

For this reason, Haskett’s delay in approaching Petitioner’s car gives rise to

the inference that while the care was in a non-mobile state (as it was when it was

eventually interdicted) Haskett did not initially believe that grounds existed for a

genuine traffic stop. Only when the car failed to resume its journey did Haskett

retroactively “realize” that speeding had occurred—or that it could be conjured and

advanced as a rationale for making the stop.

c.

One final point about Haskett’s delay emphasizes the need for

this Court’s review. Though couched as a factual dispute, for which certiorari is often

thought inappropriate, this dispute mask a more significant legal issue of recurring

importance.

14

Even though Haskett said that he waited only a few minutes between the time

of the traffic offense and conducting the traffic stop, nothing in the decision of the

court of appeals suggests any outer limit to the time frame they would view as an

acceptable delay in conducting a traffic stop. But, at some point, the probable cause

for a traffic stop dissipates when the offending traffic violation is no longer ongoing.

Were Petitioner’s car parked for an hour, would a stop still be justified? Surely not.

See, e.g., United States v. Lopez, 482 F.3d 1067 (9th Cir. 2007) (probable cause may

dissipate over time); United States v. Bervaldi, 226 F.3d 1256 (11th Cir. 2000)

(“staleness doctrine in the context of probable cause . . . requires that the information

. . . show that probable cause exists at the time”). Accepting the decision of the court

of appeals presents a slippery slope of factual indeterminacy. Rather, we submit, this

Court should recognize that the failure to act immediately, combined with the

possibility of unreasonable delay, is ample grounds to find the stop based on a noncredible assertion. More to the point, this case presents a vehicle for developing a

bright-line rule regulating permissible law enforcement delay.

Accordingly, this Court should grant review for the purpose of determining the

outer limits of a delay in executing a traffic stop, from when the probable cause

ripened and for the further purpose of correcting the clearly erroneous conclusion of

the district judge crediting the assertion that Petitioner was speeding. The stop of

Petitioner’s car was illegal and all the evidence from it, as well as the fruits of its

poisonous tree, ought to have been suppressed.

15

Conclusion

For the foregoing reasons, the petition for a writ of certiorari to the United

States Court of Appeals for the District of Columbia Circuit should be granted.

Respectfully submitted,

/s/ Paul Rosenzweig

Paul Rosenzweig

Counsel of Record

509 C St. NE

Washington, DC 20002

paulrosenzweigesq@gmail.com

(202) 547-0660

Counsel for Petitioner Fields

APPENDIX

ia

TABLE OF CONTENTS

Page

Judgment of the

United States Court of Appeals

For the District of Colombia Circuit

entered September 3, 2021 ............................................................................... 1a

Order of

United States Court of Appeals

For the District of Colombia Circuit

entered September 3, 2021 ............................................................................. 38a

Amended Judgment of the

United States District Court

For the District of Columbia

entered November 12, 2019 ............................................................................ 39a

Order of

United States Court of Appeals

For the District of Colombia Circuit

Re: Denying Petition for Panel Rehearing

entered January 13, 2022 ............................................................................... 47a

Excerpts of Transcript of Pretrial Conference Proceedings before

The Honorable Amit P. Mehta

Re: Ruling on Traffic Stop

on February 21, 2019 ...................................................................................... 48a

Excerpts of Jury Trial Proceedings before

The Honorable Amit P. Mehta

(Morning Session)

Re: Ruling on Self Representation

on March 4, 2019 ............................................................................................. 60a

- 1a USCA Case #19-3043

Document #1912719

Filed: 09/03/2021

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2021

Decided September 3, 2021

No. 19-3042

UNITED STATES OF AMERICA,

APPELLEE

v.

LONNELL TUCKER,

APPELLANT

Consolidated with 19-3043, 19-3078

Appeals from the United States District Court

for the District of Columbia

(No. 1:18-cr-00267-1)

(No. 1:18-cr-00267-2)

(No. 1:18-cr-00267-6)

Paul S. Rosenzweig, appointed by the court, argued the

cause for appellant Anthony Fields. Amelia Schmidt, appointed

by the court, argued the cause for appellant Abdul Samuels.

With her on the briefs was Matthew G. Kaiser, appointed by

the court. Stephen C. Leckar, appointed by the court, argued

the cause for appellant Lonnell Tucker.

Page 1 of 37

- 2a USCA Case #19-3043

Document #1912719

Filed: 09/03/2021

2

Daniel J. Lenerz, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Elizabeth

Trosman, Chrisellen R. Kolb, and Gregory P. Rosen, Assistant

U.S. Attorneys.

Before: KATSAS, RAO, and WALKER, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Appellants Anthony Fields, Abdul Samuels,

and Lonnell Tucker were convicted on several drug- and

firearm-related offenses. Each appellant challenges his

convictions, and Samuels also challenges his sentence. We

affirm.

I

In May 2018, a grand jury indicted Fields, Samuels,

Tucker, and three other individuals on several charges related

to an alleged drug-dealing conspiracy. The indictment

stemmed from an investigation by the Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF) of drug activity at

Next Level Cuts, a barbershop in the District of Columbia.

Much of the government’s evidence came from searches

in the months preceding the indictment. During a traffic stop

in November 2017, officers found what appeared to be a drug

ledger, approximately $9,000, and drug paraphernalia in

Fields’s vehicle. The ATF executed a search warrant on the

barbershop three months later. In a suite above the barbershop,

agents found cash, firearms, more drug paraphernalia, and

large quantities of narcotics — heroin mixed with fentanyl,

PCP, Suboxone, and synthetic marijuana. In the same room,

they also found a document listing a medical appointment for

Fields and a receipt for a purchase made with his credit card.

A search of Fields’s home led to more drug ledgers, two of

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which listed “Foots” (i.e., Samuels). During the ensuing

searches of Samuels’s home, ATF agents found a shotgun, drug

paraphernalia, crack cocaine, marijuana, and synthetic

marijuana. During the search, Samuels admitted that he kept

the gun under his bed for protection.

Also central to the government’s case was testimony from

Byran Clark, a drug dealer who purportedly worked for Fields.

Clark testified that Fields ran a drug operation out of the

barbershop’s upstairs suite and that Samuels often acted as a

gatekeeper to the suite. He also reported that Tucker sold drugs

out of the barbershop and frequented the suite.

Five defendants proceeded to trial. One pleaded guilty

during the trial. The jury returned a mixed verdict as to the

other four. It acquitted one defendant on the sole charge

against him. It also acquitted Fields and Samuels on several

firearms- and narcotics-related charges. But it found Fields,

Samuels, and Tucker guilty of conspiracy to distribute and

possess with intent to distribute various narcotics. See 21

U.S.C. §§ 841, 846.1 It also found Fields guilty of possessing

with intent to distribute each of the narcotics alleged in the

conspiracy. Id. § 841(a). And it found Samuels guilty of

possessing with intent to distribute cocaine base, id., of

possessing synthetic marijuana, id. § 844, and of felony

possession of a firearm, 18 U.S.C. § 922(g).

The district court sentenced Fields to 192 months of

imprisonment, Samuels to 84 months of imprisonment, and

1

The jury found Fields guilty of conspiring to distribute PCP,

heroin, fentanyl, buprenorphine, marijuana, and synthetic marijuana.

Samuels was found guilty of conspiring to distribute heroin and

fentanyl. And Tucker was found guilty of conspiring to distribute

heroin.

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Tucker to 60 months of imprisonment. All three appealed and

collectively raise eight claims. We address each claim in turn.

II

We start with Fields, who contends that the police officers

who searched him and his vehicle in November 2017 lacked a

sufficient basis to conduct their traffic stop, violating the

Fourth Amendment. Prior to the search, officers conducting

undercover surveillance on a store known to sell drug

paraphernalia witnessed Fields exit the store. The officers

followed him. Fields drove to a nearby parking lot where

another person entered Fields’s car and then left after less than

two minutes. Suspecting a drug sale and wanting to remain

undercover, the officers called for backup and followed Fields

to another nearby parking lot.

When backup officers arrived, they observed Fields

illegally speed through that parking lot and then park. They

momentarily observed Fields before they approached him and

asked for his driver’s license and registration. “Due to his

nervous behavior and furtive movements,” they then asked

Fields to step out of his car and keep his hands away from his

pockets. App. 145.

Contrary to the instruction, Fields made “constant furtive

movements towards his pockets.” Id. So the backup officers

conducted a pat down, during which Fields spontaneously

uttered “that white powder in my pocket is a supplement.” Id.

The “white powder” was Mannitol, a known cutting agent for

cocaine. Id. at 146.

The backup officers also found $2,000 in cash and a ledger

on Fields. Inside his car, a K-9 found another $7,001 in cash

and multiple bottles with concealed “false bottoms containing

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trace amounts of white powder.” Id. Fields was subsequently

arrested.

Months later, in February 2018, ATF agents applied for a

search warrant of Fields’s car and the barbershop, which was

suspected of being a stash house. The 18-page application

included a paragraph about the November 2017 stop. After a

court granted the search warrant, ATF agents found additional

evidence of Fields’s drug trafficking.

Before trial, Fields challenged the legality of the vehicular

stop and search warrant. The district court held an evidentiary

hearing on the stop. Sergeant Chaney (one of the two

undercover officers) and Officer Haskett (one of the backup

officers) both testified. The court found their testimony

credible, concluded that there was probable cause to stop

Fields, and denied Fields’s suppression motion. The court also

denied Fields’s motion to suppress evidence from the February

2018 search.

As to the November 2017 stop, Fields challenges the

court’s findings that (1) the officers were credible, and

(2) there was probable cause for the stop. In addition, he

disputes the district court’s rejection of his argument regarding

the 2018 search, and he now adds an argument not raised in the

district court — that the evidence from the February 2018

search warrant should be suppressed as poisonous fruit of the

allegedly unlawful November 2017 stop.

A

As for the officers’ credibility, we review the district

court’s findings for clear error. United States v. Delaney, 955

F.3d 1077, 1081–82 (D.C. Cir. 2020). And we reverse “when

a district court credits exceedingly improbable testimony.”

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United States v. Delaney, 651 F.3d 15, 18 (2001) (cleaned up)

(emphasis added).

Fields offers three reasons for reversal.

First, he argues that because Officer Haskett did not

immediately stop him or take the necessary steps to cite him

for speeding, no speeding actually occurred. But that

conclusion does not follow from those facts. Officer Haskett

was taking steps to cite Fields for speeding until he discovered

evidence of a more serious crime — Fields’s drug trafficking.

It is therefore understandable the stop did not end how it began.

Second, Fields makes much of Sergeant Chaney’s

statement that he could not recall “[i]f there were any obvious

reasons for the stop.” App. 118. What Chaney actually said,

when asked if he could recall “[i]f there were any obvious

reasons for stop,” was: “I believe there were, but off the top of

my head, I couldn’t tell you what it was. Id. But in any event,

Sergeant Chaney was not even the officer who conducted the

stop. Cause for the stop here depends on what was seen by

Officer Haskett. And he recalled that Fields was speeding.

Third, Fields argues that Officer Haskett’s testimony that

Fields “was going a little fast,” id. at 133, is inconsistent with

his written report that Fields was “traveling at a high rate of

speed through the parking lot” and that officers approached

Fields to confront him “about speeding through the parking

lot,” id. at 145.

That argument, however, distorts Officer Haskett’s

testimony, which included at least five statements about

Fields’s driving:

(1) “I saw a silver Range Rover speeding through the

parking lot”;

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(2) Fields “was going a little fast for people to — for [him]

to react to people walking across the road”;

(3) “I already had probable cause to stop the vehicle

because of speeding”;

(4) “I don’t know the exact speed limit, but I do know that

he was driving faster than he should if people are

walking with their children and families shopping”; and

(5) Fields’s “[s]peed [was] greater than reasonable.”

Hr’g Tr. 9, 11, 31, ECF No. 246 (emphases added).

Contrary to Fields’s argument, there is no genuine

inconsistency between the written report and the totality of

Officer Haskett’s testimony. One can imagine a case where it

might matter whether a defendant was barely speeding or

dangerously speeding. But this is not that case. All that matters

is that Fields committed a traffic violation.

The district court did not err in finding the officers’

testimony credible. And we, like the district court, rely on it

for the next part of our analysis.

B

We review the district court’s determination that there was

a legal basis for the stop de novo. See Delaney, 955 F.3d at

1081–82.

Because Officer Haskett observed Fields speeding, he had

probable cause for the stop. It is well settled that a traffic stop

“is reasonable where the police have probable cause to believe

that a traffic violation has occurred.” Whren v. United States,

517 U.S. 806, 810 (1996); see also United States v. Sheffield,

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832 F.3d 296, 302 (D.C. Cir. 2016) (quoting Whren, 517 U.S.

at 810).2

We will not consider Fields’s argument that the speeding

was merely a pretextual justification for the stop because the

Supreme Court’s precedents “foreclose any argument that the

constitutional reasonableness of traffic stops depends on the

actual motivations of the individual officers involved.” Whren,

517 U.S. at 813. So too do this court’s precedents. See

Sheffield, 832 F.3d at 302–03.

We affirm the district court’s denial of Fields’s motion to

suppress.

C

Because Officer Haskett lawfully stopped Fields, there is

no poisonous tree from which poisonous fruit could fall.

Moreover, Fields forfeited his argument that the evidence from

the February 2018 search warrant should be suppressed as fruit

of the poisonous tree by not raising that argument in district

court. “[S]uppression arguments that are not presented to the

trial court are deemed waived and cannot be argued on appeal.”

United States v. Castle, 825 F.3d 625, 632 (D.C. Cir. 2016)

(cleaned up).

III

Fields next argues that the district court erred when it

denied his request to represent himself at trial. Fields had a

difficult relationship with his attorneys throughout the

prosecution. He fired his first attorney in 2018. Three months

Even without probable cause, an officer’s reasonable suspicion is

alone enough to justify a traffic stop. See Heien v. North Carolina,

574 U.S. 54, 60 (2014).

2

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before trial, he fired that attorney’s successor. And then, seven

days into trial, he tried to fire his third attorney. At that point,

over his co-defendants’ objections, Fields moved to represent

himself. When the district court asked why, Fields said his

attorney had not had time to learn the details of the case. He

also believed his attorney was not “aggressive enough” during

the trial. App. 361. The district court denied Fields’s request,

noting they were far along in the trial and Fields’s selfrepresentation at that juncture might harm his co-defendants.

Fields asks us to review the district court’s decision de

novo. But when a defendant’s request to represent himself is

made after trial has begun, we review the district court’s

decision for abuse of the court’s “considerable discretion.”

United States v. Noah, 130 F.3d 490, 498 (1st Cir. 1997); see

also United States v. Washington, 353 F.3d 42, 46 (D.C. Cir.

2004) (applying abuse of discretion standard).

“A person accused of a crime has an absolute right, under

the Sixth Amendment, to represent himself only if he asserts

that right before trial.” Washington, 353 F.3d at 46 (emphases

added). But if asserted after a trial begins, the right of selfrepresentation is qualified. It must yield to other interests when

those interests, such as harm to co-defendants, outweigh it. See

United States v. Bankoff, 613 F.3d 358, 373–74 (3d Cir. 2010)

(“However, after trial has commenced — i.e., at least after the

jury has been empaneled — the right of self-representation is

curtailed. In that context, district courts have discretion to deny

an untimely request to proceed pro se after weighing the

prejudice to the legitimate interests of the defendant against the

potential disruption of proceedings already in progress. How

this balance should be struck is ultimately within the sound

discretion of the district court, and we will review its decision

under a highly deferential abuse-of-discretion standard.”)

(cleaned up); United States v. Walker, 142 F.3d 103, 108 (2d

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Cir. 1998) (“Once a trial has begun, the defendant’s right to

self-representation is sharply curtailed. In cases in which the

request is made following the commencement of the trial, the

district judge must balance the prejudice to the legitimate

interests of the defendant against the potential disruption of

proceedings already in progress. On appeal, considerable

weight will be given to the district court’s assessment of this

balance.”) (cleaned up); see also United States v. Dougherty,

473 F.2d 1113, 1124 (D.C. Cir. 1972).

Citing this court’s concern in United States v. Washington

that a defendant’s request to make his own closing argument

may be an attempt to tell his story while evading crossexamination, see 353 F.3d at 46, Fields says, “At most,

Washington stands for the proposition that a defendant may be

denied self-representation when the request is an effort to game

the system.” Appellants’ Br. 42. We disagree. Although a

defendant’s attempt to manipulate the process is a sufficient

reason to deny a mid-trial request for self-representation, it is

not a necessary reason. Prejudice to co-defendants is also a

sufficient reason. So too is disruption of the proceedings.

Bankoff, 613 F.3d at 373.

Here, the district court stated it could not “ignore the

interests and the rights of the other defendants in this case.”

App. 367. It thoroughly explained to Fields his request would

“risk harming” his co-defendants, “whether it’s by a question

you ask; whether it’s by some objection you make or by an

objection you don’t make.” Id. The court then again noted its

duty to “not only consider your rights but the rights of these

four other men” and concluded “the rights of these four other

men will be jeopardized.” Id. Therefore, the court denied

Fields’s mid-trial request, “given the late juncture and the

amount of time that has passed in this case and where we find

ourselves in this case.” Id.

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“A trial involving a pro se defendant and co-defendants

who are assisted by counsel is pregnant with the possibility of

prejudice.” United States v. Veteto, 701 F.2d 136, 139 (11th

Cir. 1983) (cleaned up). In this case, the reasons to fear that

possibility — listed above by the district court — were

compelling. And the district court could have added to those

reasons Fields’s erratic trial attendance and unwarranted

hostility to fair proceedings. See, e.g., Appellee’s Supp. App.

422 (Fields: “I’m being railroaded here, man. I’m being

railroaded here. I said this from the beginning that we wasn’t

going to get no justice in this court.”); id. at 424 (Fields refused

to attend afternoon trial proceedings); App. 372 (Fields: “I’m

fighting the prosecution and I’m fighting you.” Court: “You’re

not fighting me.” Fields: “I’m definitely fighting you.”).

The district court did not abuse its considerable discretion

when it denied Fields’s request to represent himself.

IV

Fields raises two ineffective-assistance-of-counsel claims

under Strickland v. Washington, 466 U.S. 668 (1984). To

prevail, he must show (1) “that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment” and (2) that the error

prejudiced his defense. Harrington v. Richter, 562 U.S. 86,

104 (2011) (cleaned up). “Even under de novo review, the

standard for judging counsel’s representation is a most

deferential one.” Id. at 105. We “must apply a strong

presumption that counsel’s representation was within the wide

range of reasonable professional assistance.” Id. at 104.

Because Fields’s claims are raised for the first time before

this Court, we have two options — remand for an evidentiary

hearing or reject them outright. The latter is permitted when

defendants present their claims in a vague or conclusory

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manner, when the trial record shows no deficient performance,

or when that record shows no prejudice. United States v.

Sitzmann, 893 F.3d 811, 831–32 (D.C. Cir. 2018) (per curiam);

United States v. Rashad, 331 F.3d 908, 909–10 (D.C. Cir.

2003).

Here, every paragraph of Fields’s brief — with the

possible exception of his third of five paragraphs, noted below

— is conclusory. And even when his arguments are at their

least conclusory, the trial record shows no deficient

performance or prejudice.

A

His first claim is laid out in four paragraphs. He begins in

paragraph one by alleging that the relationship with his

attorneys — recall that he fired the first two, and tried to fire

the third — was “broken” and that their investigations were not

“adequate”:

As we set forth above, Mr. Fields had a broken

relationship with each of his attorneys. With

respect to the first two, Mr. McCants and Mr.

Retureta, one aspect of their ineffectiveness is

already identified in the record but requires

further exploration on remand — namely, their

lack of adequate investigation.

Appellants’ Br. 48.

Then in paragraph two, Fields describes his version of the

evidence against him:

As the Court is aware from the recitation

elsewhere in this brief there was limited direct

evidence against Mr. Fields. No surveillance

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photos showed him engaging in drug

transactions. The only testimonial evidence

against him came from a cooperating witness

who, like all such witnesses, had mixed

motivation. Thus, the main ground for Mr.

Fields’ conviction lay in the Government’s

attempt to tie him to drugs found in a room on

the second floor above the barbershop. His

alleged constructive possession of the goods

found in that room was a critical piece of the

government’s case in chief.

Id.

Next, in paragraph three, Fields comes as close as he gets

to a non-conclusory argument. He alleges other people had

access to a room above the barbershop where he kept personal

items and instrumentalities of drug trafficking. And he faults

his initial attorneys for not finding them. But he never says

how many people had access, who they were, or why we should

believe that these unidentified people actually exist — aside

from Fields’s entirely self-serving “insiste[nce]” that they do:

And thus, negating that inference of

constructive possession was a vital component

of Mr. Fields’ defense. Throughout the time

prior to trial, Mr. Fields insisted that other

individuals also had keys to the room above the

barbershop — a fact which, if established,

would have afforded him the opportunity to

argue the insufficiency of the government’s

evidence attempting to attribute those drugs to

him. Yet, Mr. Fields’ initial attorney, Mr.

McCants, does not appear to have conducted the

investigation necessary to evaluate Fields’s

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requests. And Mr. Fields maintains that there is

no evidence that Mr. Retureta pursued that

investigation, either.

Id. at 48–49 (cleaned up).

Even assuming this, Fields’s least conclusory paragraph,

is sufficiently non-conclusory — which is doubtful — it was

neither deficient performance nor prejudicial for his counsel

not to investigate “other individuals” with “keys to the room

above the barbershop” where Fields kept cash, drugs, drug

paraphernalia, and personal items. Connecting others to the

room would not have eliminated the evidence connecting

Fields to the room. So even if his attorney had investigated the

unnamed “other individuals,” and even if they too were drug

dealers, the jury would have learned nothing more than the

unremarkable fact that Fields, a drug dealer, hung out and

shared space with other drug dealers. Cf. Trial Tr. 69, ECF No.

312 (“[D]espite the fact that you heard Mr. Fields in person and

on the phone again and again and again talk about how

everybody has got keys, everybody has access . . . , [m]ultiple

people can jointly have property in their constructive

possession. That’s the concept of both constructive possession

and a conspiracy. It’s teamwork.”).

Finally, in paragraph four, Fields ends his first claim where

he began — by repeating his conclusory claim that his

attorneys should have “conduct[ed] an investigation”:

As the Supreme Court recently put it:

“Counsel . . . has a duty to make reasonable

investigations or to make a reasonable decision

that

makes

particular

investigations

unnecessary. . . . In any ineffectiveness case, a

particular decision not to investigate must be

directly assessed for reasonableness in all the

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circumstances, applying a heavy measure of

deference to counsel’s judgments.” Here, no

assessment has been made as to the judgment of

counsel

in

failing

to

conduct

an

investigation — manifestly necessitating an

evidentiary inquiry.

Id. at 49 (cleaned up).

B

Fields’s other (conclusory) claim is laid out in one

paragraph — paragraph five. There he alleges his attorney did

not adequately cross-examine Clark, the government’s witness

who identified him as the leader of the conspiracy. But Fields

identifies no question his attorney should have asked that

would have impeached Clark or exculpated Fields. Instead,

Fields faults his attorney for not mentioning the absence of call

records reflecting Clark’s conversations with Fields. The

absence of evidence, however, is not evidence of absence. So

the absence of call records would not, in Fields’s words, have

“exploit[ed] inconsistencies” in Clarks’s testimony. Id. And

Fields fails to specify any other purported inconsistencies:

In addition, at an evidentiary hearing Mr. Fields

would also establish the reasons for his

dissatisfaction with the representation provided

by Ms. West, whose cross-examination of the

cooperating witness, Byran Clark, was in Mr.

Fields’ view inadequate. She failed to exploit

inconsistencies between the proffers that Mr.

Clark earlier had made to the government and

his sworn testimony. By way of example,

although Clark contended that he was in

frequent contact with Mr. Fields there were no

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call records — none — reflecting conversations

between them.

Id.

In short, Fields does little more than state his

“dissatisfaction” with his attorneys based on an investigation

and cross-examination he deems inadequate for the vaguest of

reasons and then conclude that this alone entitles him to relief.

But we reject conclusory claims that leave out specific reasons

for counsel’s deficient performance and prejudice under

Strickland. It is not nearly enough for Fields to simply state his

dissatisfaction and then conclude that his dissatisfaction

satisfied Strickland. We will therefore not remand Fields’s

ineffective-assistance-of-counsel claims for an evidentiary

hearing and instead reject those claims.3

V

We now turn to Samuels’s claims. He first contends that

his trial counsel, Joseph Conte, provided ineffective assistance.

Samuels primarily argues that Conte was ineffective under

Cuyler v. Sullivan, 446 U.S. 335 (1980), which requires the

defendant to show “(1) that his lawyer acted under an actual

conflict of interest” and (2) that the conflict caused “an actual

lapse in representation.” United States v. McGill, 815 F.3d

846, 943 (D.C. Cir. 2016) (cleaned up); see Cuyler, 446 U.S. at

349.

Because Cuyler relaxes Strickland’s prejudice

3

We also hold a non-conclusory argument would have fared no

better. With regard to Clark’s testimony, the performance of Fields’s

trial attorney was not deficient or prejudicial. She repeatedly elicited

purported inconsistencies between his pre-trial statements and trial

testimony, as did three attorneys for Fields’s co-defendants. Fields’s

attorney even made the point about the absence of text messages in

her closing argument.

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requirement, we are “reluctant to allow defendants to force

their ineffective assistance claims into the ‘actual conflict of

interest’ framework and thereby supplant the strict Strickland

standard.” United States v. Taylor, 139 F.3d 924, 930 (D.C.

Cir. 1998) (cleaned up). We thus closely scrutinize claims

under Cuyler.

Samuels argues that Conte was conflicted because his

daughter worked for the U.S. Attorney’s Office for the District

of Columbia, which prosecuted Samuels. Although Conte

mentioned his daughter’s job to the prosecutor, he informed

neither Samuels nor the district court. Shortly before

Samuels’s sentencing, the district court learned about the issue,

appointed new counsel, and ordered briefing. The court

concluded that Conte’s failure to disclose his daughter’s job

raised a potential conflict of interest, and it set an evidentiary

hearing on that issue. Later, the court granted the parties’ joint

motion to vacate the hearing without resolving the conflict

issue. Now on appeal, Samuels again contends that Conte had

a conflict of interest.

As discussed, we ordinarily remand “colorable and

previously unexplored claims of ineffective assistance” for

evidentiary hearings. United States v. Marshall, 946 F.3d 591,

596 (D.C. Cir. 2020) (cleaned up); see McGill, 815 F.3d at 942.

But remand is unwarranted where the record establishes that

counsel was not ineffective, where the appellant’s allegations

are vague and conclusory, or where the appellant fails to

identify an issue that “requires a determination of facts.”

Sitzmann, 893 F.3d at 832 (cleaned up). Moreover, our

standard for remand is blunted by “the strong presumption that

counsel made all significant decisions in the exercise of

reasonable professional judgment,” which extends to claims

under Cuyler. Taylor, 139 F.3d at 934 (cleaned up); see also

Burger v. Kemp, 483 U.S. 776, 784 (1987) (“[W]e generally

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presume that the lawyer is fully conscious of the overarching

duty of complete loyalty to his or her client.”).4

We assume that Conte was conflicted and resolve this

appeal under Cuyler’s second prong, which considers whether

the conflict led to an “actual lapse in representation.” McGill,

815 F.3d at 943 (cleaned up). To satisfy this standard, Samuels

must articulate a strategy that a reasonable, nonconflicted

defense counsel would have pursued. See United States v.

Gantt, 140 F.3d 249, 254 (D.C. Cir. 1998). The conflict must

have caused the failure to pursue this strategy, United States v.

Bruce, 89 F.3d 886, 896 (D.C. Cir. 1996), and must have

“significantly affected counsel’s performance . . . rendering the

4

We are skeptical that Samuels preserved his ineffective-assistance

claim. “The law in this circuit is that a claim of ineffective assistance

must be made in a motion for a new trial ‘when counsel changes prior

to appeal and when there is still a reasonable opportunity to challenge

a conviction in the District Court.’” United States v. Wood, 879 F.2d

927, 933 (D.C. Cir. 1989) (quoting United States v. Debango, 780

F.2d 81, 86 (D.C. Cir. 1986)). Before he appealed, Samuels received

new counsel and pressed a claim that his former counsel was

ineffective because of a conflict of interest. Moreover, after the

district court set an evidentiary hearing to explore the conflict issue,

Samuels — acting through his new counsel — affirmatively moved

to proceed without a hearing. Nevertheless, the government waived

any forfeiture (or waiver) argument by stipulating that it would not

raise that issue in the joint motion to vacate the evidentiary hearing.

See United States v. Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996). The

government’s stipulation is not binding on us, see Weston v.

WMATA, 78 F.3d 682, 685 (D.C. Cir. 1996), and we have significant

concern with remanding now for a hearing that Samuels

affirmatively eschewed. But because we may reject Samuels’s

Cuyler claim on the present record, we accept the stipulation and

proceed to the merits.

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verdict unreliable, even though Strickland prejudice cannot be

shown,” Mickens v. Taylor, 535 U.S. 162, 173 (2002).

Under this standard, Conte’s failure to tell anyone other

than the prosecutor about his daughter’s job is not itself enough

to establish ineffective assistance. Cuyler “requires proof of

effect upon representation.” Id. Without more, the “inadequate

disclosure” of a conflict is “not an adverse effect on counsel’s

performance.” United States v. Mett, 65 F.3d 1531, 1536 (9th

Cir. 1995); see Blake v. United States, 723 F.3d 870, 878, 881–

82 (7th Cir. 2013). And Samuels does not explain how Conte’s

limited disclosure so significantly affected his performance as

to make the verdict unreliable.

To show an adverse effect, Samuels identifies three points

that he claims Conte failed to raise. According to Samuels,

Conte (1) missed an argument supporting a motion to suppress

his statement about the shotgun found under his bed, (2) failed

to timely oppose expert testimony on drug distribution, and (3)

did not cite evidence to support a multiple-conspiracy

instruction. Samuels posits that Conte avoided these points to

advance his daughter’s interests as an employee in the U.S.

Attorney’s office — i.e., he “pulled punches that a reasonable,

conflict-free counsel would have thrown.” Appellants’ Br. 51.

Samuels concludes that these failures make his verdict

unreliable. We disagree.

To begin, Samuels failed to identify any plausible link

between the alleged conflict and the points that Conte

purportedly missed. See Bruce, 89 F.3d at 896. His theory of

causation — that Conte “pulled punches” to help his daughter

— is belied by the trial record, which shows that the punches

Conte threw were no less forceful than the ones he ostensibly

pulled. For example, as explained below, Conte sought to

sever Samuels’s trial from Fields’s, which would have

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considerably increased the government’s workload, see

Richardson v. Marsh, 481 U.S. 200, 210 (1987). He also

forcefully challenged the credibility of the government’s

central witness and offered alternative explanations for why

Samuels appeared on Fields’s ledger (to pay for car insurance)

and for why Samuels identified the shotgun (to cover for his

girlfriend). With no distinction between these arguments and

the ones that Conte ostensibly missed, Samuels’s theory of

causation is not plausible.

Separate from causation, none of the purportedly missed

arguments identifies a plausible lapse in representation. The

first concerns Conte’s unsuccessful motion to suppress

Samuels’s admission that he owned the shotgun agents found

in his house. Conte had argued that the admission was

involuntary because Samuels was suffering from heroin

withdrawal at the time. The district court disagreed. On

appeal, Samuels faults Conte for not also arguing that the

statement was involuntary because he was under the influence

of cocaine.

Conte’s failure to make this argument was not a colorable

lapse in representation. The “mere fact that one has taken

drugs, or is intoxicated, or mentally agitated, does not render

consent involuntary.” United States v. Castellanos, 518 F.3d

965, 969 (8th Cir. 2008) (cleaned up). Instead, “coercive police

activity” is necessary to find a confession involuntary.

Colorado v. Connelly, 479 U.S. 157, 167 (1986). And the

district court, in rejecting the heroin-withdrawal argument,

found that the audio recording of Samuels’s confession showed

“no coercive police activity.” App. 89. It would thus have

been futile to argue that Samuels’s consent was involuntary due

to cocaine use. And the failure to raise a meritless objection is

not colorably deficient. See Sitzmann, 893 F.3d at 833.

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Second, Samuels argues that Conte failed to investigate or

timely challenge testimony from a government expert that the

amount of cocaine seized from Samuels’s home —

approximately 3.5 grams — was consistent with distribution

rather than personal use. Conte moved to exclude the

testimony on the day of the expert’s testimony, but the district

court denied the motion as untimely.

Samuels again identifies no colorable deficiency. For one

thing, he does not explain why the motion to exclude the expert

testimony might have been successful if timely, so this

argument is too vague and conclusory to support remand. See

id. at 832–33. He instead contends that Conte failed to develop

evidence to counter the government’s expert. But Conte forced

the expert to concede that the amount of cocaine in Samuels’s

possession could have been for personal use. And he relied

heavily on the possibility of personal use in his closing

arguments, contending, for example, that Samuels owned a

scale because he bought in bulk and did not want to be cheated.

In other words, Samuels faults Conte for not offering

cumulative evidence to support personal use, which is not

enough for remand. See id. at 833.

Finally, Samuels contends that Conte botched his request

for a multiple-conspiracy instruction, which would have

clarified that the jury needed to find that Samuels was a

member of the same conspiracy charged in the indictment to

support a guilty verdict. In denying Conte’s request, the district

court reasoned that there was no evidence of Samuels

“interacting with anyone else . . . who’s not identified as a

conspirator in this case.” App. 609. Samuels contends that

there was such evidence, which Conte missed, namely Clark’s

testimony that Samuels obtained crack cocaine to distribute in

Virginia from “a guy named Miguel Harris.” Id. at 391. The

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indictment mentioned neither Harris nor a conspiracy to

distribute crack cocaine.

It is at least plausible that Samuels would have received

the multiple-conspiracy instruction had Conte flagged this

evidence. If requested, a district court must give the instruction

where the “record evidence supports the existence of multiple

conspiracies.” United States v. Sanders, 778 F.3d 1042, 1047

(D.C. Cir. 2015) (cleaned up). And Clark testified that Samuels

“started purchasing” crack from Harris for distribution.

App. 391. This testimony could perhaps support the inference

that Harris was a “regular source,” which would be enough to

create a separate conspiracy. United States v. Morris, 836 F.2d

1371, 1374 (D.C. Cir. 1988).

But Conte’s failure to secure the instruction is not enough

to show that a conflict “significantly affected” his performance

and made the verdict “unreliable.” Mickens, 535 U.S. at 173.

Whatever the contours of this standard, the failure to recall a

single line of testimony in a three-week trial that might support

a peripheral jury instruction cannot fairly be described as

significant. Moreover, it casts no doubt on the verdict, which

found that Samuels was guilty of conspiring to distribute heroin

and fentanyl, not crack cocaine. Samuel’s case thus falls well

outside Cuyler, which “is designed to protect a defendant when

it is impossible to reconstruct what might have occurred

without counsel’s conflict of interest.” Plunk v. Hobbs, 766

F.3d 760, 766 (8th Cir. 2014).

Samuels alternatively contends that Conte was ineffective

under Strickland, which requires him to show that his counsel’s

performance was deficient and prejudicial, see 466 U.S. at 687.

For the reasons given above, Samuels has not proven deficient

performance. And because he does not satisfy Cuyler’s lower

standard to prove a “significant[]” effect on representation, he

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also fails to satisfy Strickland’s more demanding requirement

of prejudice. Mickens, 535 U.S. at 173.

In sum, Samuels has established no colorable claim of

ineffective assistance under Cuyler or Strickland. His Cuyler

claim fails because he has not plausibly proven that Conte’s

alleged conflict of interest caused an adverse effect that rises to

the level of an actual lapse in representation. And his

Strickland claim fails for lack of any colorable case for

deficient performance or prejudice.

VI

Samuels next argues that the district court impermissibly

limited his ability to cross-examine Clark, the government’s

central witness, about his prior bad acts. When Clark testified,

he had previously pleaded guilty to kidnapping and obstruction

of justice as part of a plea agreement that depended on his

cooperation against Samuels in this case. Samuels claims that

Clark earned the kidnapping charge by taking a person hostage

at gunpoint, robbing him, and pointing a gun at the victim’s

head. For obstruction of justice, Samuels contends that Clark

directed a third party to threaten a witness to not testify. Clark

also had other prior convictions, including one for murder.

Samuels sought to cross-examine Clark about his convictions

and the facts underlying them to impeach Clark’s credibility

and to establish that the plea agreement gave Clark a bias.

The district court adopted a halfway approach, explaining

that it had to balance the probative value of Clark’s prior bad

acts against the risk that the facts would “just dirty [him] up

because he’s a bad dude.” App. 428. The court allowed

Samuels to cross-examine Clark about the existence of his prior

convictions; about the facts underlying charges the government

reduced, dropped, or never brought due to Clark’s cooperation;

and about other possible sources of bias. But it excluded

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questions about the facts underlying his convictions, reasoning

that they would be “more prejudicial than probative.”

Appellee’s Supp. App. 490. It also agreed with the government

that those questions risked a “circus within a circus, a trial

within a trial” about Clark. App. 433–34. Finally, it refused to

let Samuels question Clark about the alleged witness

intimidation after concluding that Samuels had no factual basis

in the record to assume a threat occurred.

Samuels contends that the district court’s ruling violated

both the Confrontation Clause and Federal Rule of Evidence

403. Under the Confrontation Clause, a trial court “may limit

cross-examination only after there has been permitted, as a

matter of right, a certain threshold level of cross-examination.”

United States v. Hall, 945 F.3d 507, 513 (D.C. Cir. 2019)

(cleaned up). That threshold is satisfied “so long as defense

counsel is able to elicit enough information to allow a

discriminating appraisal of a witness’s motives and bias.” Id.

(cleaned up). Otherwise, district courts “retain wide latitude”

to “impose reasonable limits on . . . cross-examination” under

the Federal Rules of Evidence. Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986). Relevant here, Rule 403 allows courts

to exclude evidence “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice” or “confusing

the issues.” We review limits on cross-examination for an

abuse of discretion. United States v. Lin, 101 F.3d 760, 768

(D.C. Cir. 1996); Henderson v. Geo. Wash. Univ., 449 F.3d

127, 133 (D.C. Cir. 2006).

The district court did not violate the Confrontation Clause.

Such a violation occurs “only when the court bars a legitimate

line of inquiry that might have given the jury a significantly

different impression of the witness’s credibility.” United

States v. Miller, 738 F.3d 361, 375 (D.C. Cir. 2013) (cleaned

up). Samuels elicited ample testimony to give the jury the

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impression that Clark was lawless and had a substantial reason

to testify in favor of the government. Among other impeaching

facts, the jury learned about Clark’s cooperation agreement; his

prior convictions; and that he robbed and kidnapped a man,

stole a car, and used a firearm during various crimes. This

cross-examination easily clears the threshold required by the

Confrontation Clause. See, e.g., Hall, 945 F.3d at 513 (no

violation where defendant cross-examined government witness

on guilty plea in cooperation deal).

Nor did the district court abuse its discretion under Rule

403. Without acknowledging the court’s concerns about unfair

prejudice, Samuels argues that the salacious facts underlying

Clark’s prior convictions are “information the jury should have

heard to evaluate whether someone with that little regard for

human life and the law would have any compunction about

lying under oath to reduce his time in prison.” Appellants’ Br.

75. But while “evidence of lawlessness can undermine the

perpetrator’s probable truthfulness . . . admission of such

evidence is subject to the sound discretion of the trial court.”

United States v. Garcia Sota, 948 F.3d 356, 363 (D.C. Cir.

2020); see also FED. R. EVID. 609(a)(1)(A). And the court here

acted well within its discretion in concluding that the risk of

unfair prejudice stemming from the facts it excluded

substantially outweighed any cumulative probative value. This

Court has long acknowledged the risk that evidence of prior

criminal activity would impermissibly lead juries to discredit

witnesses because they are “bad men,” rather than because they

are biased or not credible. United States v. Fox, 473 F.2d 131,

135 (D.C. Cir. 1972). Thus, “when evidence of a prior

conviction is admitted for purposes of impeachment, crossexamination is usually limited to the essential facts rather than

the surrounding details of the conviction.” United States v.

Baylor, 97 F.3d 542, 544 (D.C. Cir. 1996). Not only did the

district court allow cross-examination on the essential facts of

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Clark’s convictions, it let the jury hear about a wide range of

Clark’s other criminal activity. We find no error in the district

court’s limited restrictions on Clark’s cross-examination.

Samuels also contends that the details underlying the

obstruction charge are particularly probative because they

involved a threat to intimidate a witness. But the district court

did not limit questions about witness intimidation based on

Rule 403. As noted, it restricted those questions because

Samuels lacked a factual basis to ask them. See Lin, 101 F.3d

at 768 (“counsel must have a reasonable basis for asking

questions on cross-examination which tend to incriminate or

degrade the witness”) (cleaned up). In his reply brief, Samuels

objects that the district court erroneously discounted evidence

that provided a factual basis for the questions. This objection

is forfeited, see M.M.V. v. Garland, 1 F.4th 1100, 1111 (D.C.

Cir. 2021), and also meritless. Samuels points to no record

evidence suggesting that Clark threatened a witness. Instead,

he gestures at unspecified grand-jury testimony that he admits

is not in the record, which is not good enough. See United

States v. Boyd, 54 F.3d 868, 871–72 (D.C. Cir. 1995) (basis for

cross-examination must be in the record). Samuels also faults

the government for not providing further evidence to support

its representation that Clark’s obstruction charge did not

involve threats. But an objection to limits on crossexamination is not the appropriate vehicle to challenge the

government’s compliance with discovery obligations. Samuels

held the burden of proffering a sufficient factual basis to

question Clark about threats. See Lin, 101 F.3d at 768. And

the district court did not abuse its discretion when it ruled that

he failed to satisfy that burden.

Moreover, any error by the district court would have been

“rendered fully harmless by the broad range of other heinous

conduct that the court allowed defense counsel to bring out in

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cross-examination.” Garcia Sota, 948 F.3d at 363; see Van

Arsdall, 475 U.S. at 684; United States v. Whitmore, 359 F.3d

609, 622 (D.C. Cir. 2004). As explained, Samuels extracted

testimony from Clark about his convictions and the facts

underlying several violent crimes for which the government

declined to prosecute him. Samuels’s inability to elicit similar

impeaching evidence was harmless because the crossexamination “was enough to enable the jury to assess the

relation between [Clark’s] lawlessness and his propensity for

truthfulness.” Garcia Sota, 948 F.3d at 363.

In sum, the district court acted well within its discretion

under the Confrontation Clause and Rule 403 in limiting

Clark’s cross-examination, and any improper limits would

have amounted to harmless error.

VII

We next consider the arguments made by Samuels and

Tucker that the district court abused its discretion in denying

their motions to sever their trials from Fields’s trial. Samuels

and Tucker argue that severance was warranted due to

“spillover” prejudice resulting from the disparity in evidence

between them and Fields as well as Fields’s obstreperous

behavior during trial. Fields, the undisputed ringleader of the

drug distribution conspiracy, frequently displayed less than

exemplary behavior in court. At one point, he absented himself

from the trial for part of a day. Towards the end of trial, Fields

testified on his behalf. He was the only defendant to do so, and

the testimony did not go well. Fields gave conflicting and

unbelievable explanations for the evidence against him,

accused the government of planting evidence, speculated about

the government’s motives for prosecuting him and his codefendants, and became combative with the prosecutor and the

district court. Both before and after Fields’s testimony,

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Samuels and Tucker moved to sever their trials on the ground

that Fields’s lies and misbehavior would be held against them

by the jury. The district court denied this motion, explaining

that Fields’s credibility was a matter for the jury to decide and

that Fields did not say anything “about the other defendants that

already didn’t come in the government’s case-in-chief.” App.

725.

“We review the denial of a motion to sever for abuse of

discretion.” United States v. Wilson, 605 F.3d 985, 1015 (D.C.

Cir. 2010). The Federal Rules of Criminal Procedure permit

joinder of defendants “alleged to have participated in the same

act or transaction, or in the same series of acts or transactions,

constituting an offense or offenses.” FED. R. CRIM. P. 8(b).

Joint trials are preferred in federal criminal cases because they

“promote efficiency and serve the interests of justice by

avoiding the scandal and inequity of inconsistent verdicts.”

Zafiro v. United States, 506 U.S. 534, 537 (1993) (cleaned up).

The preference for joint trials is “‘especially strong’ when ‘the

respective charges require presentation of much the same

evidence, testimony of the same witnesses, and

involve . . . defendants who are charged, inter alia, with

participating in the same illegal acts.’” Wilson, 605 F.3d at

1016 (cleaned up). We find that neither the disparity in

evidence between co-defendants, nor Fields’s behavior during

trial, warranted severance because any risk of prejudice was

curable with appropriate instructions.

A joined defendant may seek to sever his trial from that of

his

co-defendants.

“If

the

joinder

of . . . defendants . . . appears to prejudice a defendant . . . ,

the court may . . . sever the defendants’ trials, or provide any

other relief that justice requires.” FED. R. CRIM. P. 14(a)

(emphasis added). The permissive language of this rule makes

clear that severance is not required “even if prejudice is

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shown.” Zafiro, 506 U.S. at 538–39. Instead, Rule 14 grants a

district court “significant flexibility to determine how to

remedy any potential risk of prejudice posed by the joinder of

multiple defendants in a single trial.” United States v. Moore,

651 F.3d 30, 95 (D.C. Cir. 2011) (per curiam). Severance is

the exception rather than the rule and is required only when

there is “a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the jury

from making a reliable judgment about guilt or innocence.”

Zafiro, 506 U.S. at 539. Although a serious risk may arise

when “defendants are tried together in a complex case and they

have markedly different degrees of culpability,” even in cases

where the risk of prejudice is high, “less drastic measures, such

as limiting instructions, often will suffice to cure any risk of

prejudice.” Id. In light of these principles, motions to sever

should be granted “sparingly.” United States v. Celis, 608 F.3d

818, 844 (D.C. Cir. 2010).

Appellants “carr[y] the burden of demonstrating prejudice

resulting from a failure to sever.” United States v. Gooch, 665

F.3d 1318, 1336 (D.C. Cir. 2012). Samuels and Tucker here

assert spillover prejudice, namely the risk “the jury would use

evidence of one defendant’s guilt against another.” United

States v. Spriggs, 102 F.3d 1245, 1256 (D.C. Cir. 1996). They

maintain this prejudice arose from trying them, peripheral

players in the conspiracy, together with Fields, “a perjurious

and obstructionist lead defendant.” Appellants’ Br. 97.

Samuels and Tucker fail to demonstrate prejudice.

First, Samuels and Tucker have not demonstrated

prejudice from evidentiary spillover. Disparity in evidence

requires severance “when the evidence against one defendant

is ‘far more damaging’ than the evidence against the moving

party,” but will not require severance in a conspiracy trial when

there is “substantial and independent evidence of each

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defendant’s significant involvement in the conspiracy.”

Moore, 651 F.3d at 95–96 (cleaned up). “[A]bsent a dramatic

disparity of evidence, any prejudice caused by joinder is best

dealt with by instructions to the jury to give individual

consideration to each defendant.” Id. at 95 (cleaned up). The

varying roles played by members of a conspiracy will “not

render joint trial inappropriate as long as the jury can

reasonably compartmentalize the substantial and independent

evidence against each defendant.” United States v. Straker,

800 F.3d 570, 628 (D.C. Cir. 2015) (per curiam). As we will

explain in Part VIII, the government introduced substantial and

independent evidence of Samuels’s and Tucker’s involvement

in the conspiracy. Although Samuels and Tucker played a

subordinate role in the conspiracy led by Fields, we hold “the

disparity of evidence did not rise to a level necessary to

mandate severance.” Moore, 651 F.3d at 96.

Second, Samuels and Tucker have not established

prejudice from Fields’s misbehavior during trial. Courtroom

misconduct by a co-defendant must be especially egregious to

mandate severance. See, e.g., United States v. Rocha, 916 F.2d

219, 229 (5th Cir. 1990) (no severance required when codefendant “mouthed the words, ‘You are dead,’ and moved a

finger across his throat” during a witness’s direct examination);

United States v. Marshall, 458 F.2d 446, 448, 452 (2d Cir.

1972) (no severance required when a co-defendant directed

obscenities at the court and witnesses, absented himself, threw

a chair towards the jury box, and cut his wrists during

summation). “Cautionary instructions . . . should remain the

primary weapons against improper jury bias.” United States v.

Mannie, 509 F.3d 851, 857 (7th Cir. 2007). Fields’s behavior

was mildly disruptive: he was combative on the stand, refused

to attend part of the trial, and made demonstrably false

statements during his testimony. This misbehavior is simply

not so beyond the pale as to mandate severance.

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At bottom, this is not a case in which curative instructions

were ineffective against potential prejudice. The district court

gave several careful and tailored instructions throughout the

trial. When Fields failed to show up one day, the district court

instructed the jury that his “absence should not . . . be viewed

as evidence or held against any other defendant in this matter

in any way whatsoever.” App. 347. The district court also

instructed the jury that “each defendant is entitled to have the

issue of his guilt as to each of the crimes for which he’s on trial

determined from his own conduct and from the evidence that

applies to him as if he were being tried alone.” Appellee’s

Supp. App. 784–85. The instructions explicitly stated that the

jury’s verdict as to one defendant should not “influence [its]

verdict with respect to any other defendant as to that count or

any other count in the Indictment.” Id. at 785. The

effectiveness of the district court’s instructions is indicated by

the jury returning mixed verdicts as to each of the defendants,

including Fields. See United States v. Gilliam, 167 F.3d 628,

636 (D.C. Cir. 1999) (explaining that mixed “verdicts indicate

that the jury was able to distinguish between the defendants”).

We presume that juries follow the court’s instructions when, as

here, there is no evidence to the contrary. Id.

The district court cured any potential prejudice to Samuels

and Tucker with limiting instructions and did not abuse its

discretion in denying their motions to sever.

VIII

We turn next to Samuels’s and Tucker’s challenge to the

sufficiency of the evidence to sustain their convictions for

conspiracy to distribute heroin under 21 U.S.C. § 846.

To overturn a jury verdict for insufficient evidence, “a

defendant faces a high threshold.” United States v. Washington,

12 F.3d 1128, 1135 (D.C. Cir. 1994). In reviewing for

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sufficiency of the evidence, we consider “‘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 the crime beyond a reasonable doubt.’”

United States v. Gaskins, 690 F.3d 569, 576–77 (D.C. Cir.

2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

In applying this standard, we “draw[] no distinction between

direct and circumstantial evidence, and ‘giv[e] full play to the

right of the jury to determine credibility, weigh the evidence

and draw justifiable inferences of fact.’” United States v.

Williams, 836 F.3d 1, 6 (D.C. Cir. 2016) (quoting United States

v. Battle, 613 F.3d 258, 264 (D.C. Cir. 2010)).

To convict Samuels and Tucker of conspiracy to distribute

heroin, the government had to prove they acted knowingly and

with the “specific intent to further the conspiracy’s objective.”

United States v. Childress, 58 F.3d 693, 708 (D.C. Cir. 1995).

The evidence here easily passes muster under our deferential

standard of review.

With respect to Samuels, sufficient evidence supports that

he knowingly furthered the conspiracy to distribute heroin.

Fields controlled operations in the drug distribution conspiracy

from the suite above the barbershop, where agents found

approximately $60,000 worth of heroin as well as other drug

paraphernalia. The evidence established that Samuels assisted

Fields in this endeavor. Clark, the cooperating witness who

testified that he frequently went to the barbershop to obtain

heroin from Fields, placed Samuels regularly with Fields while

Fields packaged drugs for distribution. GPS data from

Samuels’s cellphone also put him in the vicinity of the

barbershop hundreds of times during the life of the conspiracy.

As Clark testified, Samuels assisted Fields by opening the door

and controlling access to the upstairs suite where the drugs

were, which was corroborated by text messages to Samuels that

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included “let me in” and “open the door.” Appellee’s Supp.

App. 191–92. Text messages also demonstrated that Samuels

was in frequent contact with other members of the conspiracy

and used coded references to drug transactions. Moreover,

Clark testified that Samuels had delivered five grams of heroin

on one occasion when Clark was in a car with two other

members of the conspiracy. Viewed in the light most favorable

to the government, this evidence, combined with Samuels’s

frequent presence in the barbershop while Fields, the leader of

the conspiracy, engaged in drug transactions, is sufficient to

sustain Samuels’s conviction for conspiracy to distribute

heroin. See, e.g., Childress, 58 F.3d at 712 (finding the

evidence sufficient when defendants personally handled drugs,

prepared them for sale, and did so at the direction of the

conspiracy’s leader).

Sufficient evidence also supported Tucker’s conviction

and established his role as a street-level dealer in the

conspiracy. Clark’s testimony put Tucker at the barbershop

frequently, “[a]cting like [Tucker had] a license to sell

drugs . . . [h]aving . . . no discretion, . . . no trying to hide it or

anything, just out in the open.” Appellee’s Supp. App. 457.

Tucker’s frequent presence at the barbershop was corroborated

by GPS data and law enforcement surveillance. Notably,

agents observed Tucker engaged in “what appeared to be a

hand-to-hand narcotics transaction” on the street in front of the

barbershop. Id. at 363. Clark testified that he saw Tucker

coming from the upstairs suite of the barbershop adjusting his

“lower crotch area,” and explained that when he used to sell

drugs, he hid his stash in his “crotch area” to avoid detection

by the police. Id. at 458. Clark also explained that heroin could

be pink or tan depending on the substance it was cut with and

that dealers often used slang to talk about narcotics. Tucker’s

text messages mentioned selling pink shirts and tan shoes,

statements the jury could reasonably infer were references to

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narcotics. Given Tucker’s close relationship with Fields and

frequent presence at the barbershop, the jury also could

reasonably infer that Tucker obtained the heroin he sold from

Fields. Viewing the evidence in the light most favorable to the

government, sufficient evidence supported Tucker’s

conviction for conspiracy to distribute heroin.

Samuels and Tucker also seek to rely on Gaskins, in which

this court found the evidence insufficient to sustain a drugtrafficking conspiracy conviction. In that case, despite

extensive police surveillance and searches, no evidence put

Gaskins in the presence of drugs, nor did any witness connect

him to the conspiracy. See 690 F.3d at 572. Tucker argues that

the evidence against him is similarly flimsy because he did not

directly text members of the conspiracy, and Clark’s testimony

and the street-level buys at most established his role as an

independent street-level dealer. Samuels also points to the lack

of controlled buys, wiretaps, or surveillance as reasons why the

evidence against him was insufficient. These arguments

founder on the fact that the evidence against both Samuels and

Tucker was far more robust than the evidence in Gaskins.

Unlike Gaskins, both Samuels and Tucker “discussed drugs,

distributed drugs, [and were] in the presence of drugs

connected to the conspiracy.” Gaskins, 690 F.3d at 577; see

also United States v. Shi, 991 F.3d 198, 207 (D.C. Cir. 2021)

(distinguishing Gaskins as a case in which there was an

“overwhelming lack of evidence”).

For these reasons, the evidence is sufficient to sustain the

convictions of Samuels and Tucker.

IX

Tucker also challenges his sentence, arguing that the

district court erred in calculating the quantity of heroin

attributable to him for purposes of setting his Sentencing

Page 34 of 37

- 35a USCA Case #19-3043

Document #1912719

Filed: 09/03/2021

35

Guidelines range. Although the district court’s calculation was

based on inferences, those inferences were reasonable in light

of the record.

We “review[] a sentence imposed under the Guidelines to

determine whether it is ‘reasonable.’” United States v. Flores,

995 F.3d 214, 219 (D.C. Cir. 2021) (quoting United States v.

Blalock, 571 F.3d 1282, 1285 (D.C. Cir. 2009)). This

determination involves two steps: First, we ensure the district

court did not commit a “significant procedural error,” and

second, we review whether the sentence is objectively

reasonable. United States v. Settles, 530 F.3d 920, 923 (D.C.

Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).

Tucker challenges only the district court’s

methodology for calculating the drug quantity attributable to

him — a procedural error. Significant procedural errors

include “failing to calculate (or improperly calculating) the

[Sentencing] Guidelines range, . . . selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Gall, 552 U.S. at 51.

A defendant’s sentence for a drug conspiracy is based on

the amount of drugs attributed to him. Under the Sentencing

Guidelines, a defendant’s base offense level is derived from his

“relevant conduct,” which includes the drug quantity involved

for an offense. U.S.S.G. § 1B1.3 (2018) (cleaned up); United

States v. Burnett, 827 F.3d 1108, 1120 (D.C. Cir. 2016). When

necessary, such as when there has been “no drug seizure or the

amount seized does not reflect the scale of the offense,” the

district court must approximate the drug quantity. U.S.S.G.

§ 2D1.1 cmt. n.5. Further, when a defendant is part of a drug

conspiracy, his relevant conduct includes “all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” United States v. Bostick,

791 F.3d 127, 158 (D.C. Cir. 2015) (quoting U.S.S.G.

Page 35 of 37

- 36a USCA Case #19-3043

Document #1912719

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36

§ 1B1.3(a)(1)(B)).

“We review the District Court’s

determination of drug quantity relevant for sentencing under a

clear error standard.” United States v. Mack, 841 F.3d 514, 527

(D.C. Cir. 2016).

The district court attributed 75 grams of heroin to Tucker.

Although the presentence report found Tucker’s relevant

conduct included 546.7 grams due to his involvement in the

conspiracy, the district court declined to hold Tucker

responsible for all the sales made from the barbershop or to

Clark. Instead, it estimated the amount of heroin for which

Tucker was personally responsible. Based on the amount of

heroin sold by Tucker to the confidential informant (0.58

grams), the GPS data, Clark’s testimony, and surveillance, the

district court estimated that Tucker sold 0.5 grams of heroin

five times weekly for thirty weeks, totaling 75 grams. That

quantity resulted in a Guidelines range of 51 to 63 months, and

with Tucker’s career offender enhancement, the range

increased to 210 to 262 months. The district court found this

range overstated Tucker’s criminal history, so it used the

sentences received by other members of the conspiracy as

benchmarks and ultimately sentenced Tucker to sixty months’

imprisonment. The district court’s calculation of the drug

quantity attributable to Tucker, which was based on reliable

evidence in the record, was not clearly erroneous.

Tucker argues the district court erred by using a method

for calculating the drug quantity for his base offense level that

was “unduly speculative.” Appellants’ Br. 105. We find,

however, that the district court employed a reasonable method,

which resulted in a conservative estimate. While it found

“Tucker was part of a core group of individuals that operated

out of that barbershop,” Appellee’s Supp. App. 794, it chose

not to attribute the 546.7 grams of heroin recommended by the

presentence report. The court instead used the amount of

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37

heroin Tucker distributed in a single controlled buy to

extrapolate five similarly sized sales per week for thirty weeks.

Although one sale is a small sample size, that does not render

the court’s extrapolation unduly speculative, particularly when

it results in a conservative estimate. Cf. United States v.

Correa-Alicea, 585 F.3d 484, 491 (1st Cir. 2009) (affirming a

district court’s use of two controlled purchases multiplied by a

“highly conservative” “estimate of one transaction per day”).

In addition, the district court’s estimation that five sales per

week were of heroin is reasonable based on Tucker’s frequent

presence at the barbershop and the quantity of heroin seized

there. “[D]rug quantity calculations are an art, not a science,”

and the district court chose a reasonable method. United States

v. Block, 705 F.3d 755, 760–61 (7th Cir. 2013) (explaining “we

afford trial courts some room for speculation and reasonable

estimation so long as percentages and quantities were not

pulled out of thin air”) (cleaned up).

In sum, the district court did not clearly err in calculating

the drug quantity attributable to Tucker.

X

For the foregoing reasons, we affirm.

So ordered.

Page 37 of 37

- 38a -

USCA Case #19-3043

Document #1912721

Filed: 09/03/2021

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 19-3042

September Term, 2021

1:18-cr-00267-APM-6

1:18-cr-00267-APM-2

1:18-cr-00267-APM-1

Filed On: September 3, 2021 [1912721]

United States of America,

Appellee

v.

Lonnell Tucker,

Appellant

-----------------------------Consolidated with 19-3043, 19-3078

ORDER

It is ORDERED, on the court's own motion, that the Clerk withhold issuance of

the mandate herein until seven days after disposition of any timely petition for rehearing

or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. This

instruction to the Clerk is without prejudice to the right of any party to move for

expedited issuance of the mandate for good cause shown.

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

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- 47a -

USCA Case #19-3043

Document #1930406

Filed: 01/13/2022

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 19-3042

September Term, 2021

1:18-cr-00267-APM-6

Filed On: January 13, 2022

United States of America,

Appellee

v.

Lonnell Tucker,

Appellant

-----------------------------Consolidated with 19-3043, 19-3078

BEFORE:

Katsas, Rao, and Walker, Circuit Judges

ORDER

Upon consideration of appellant Tucker’s petition for panel rehearing filed in No.

19-3042 on September 20, 2021, and appellant Fields’ petition for panel rehearing filed

in No. 19-3043 on September 24, 2021, it is

ORDERED that the petitions be denied.

Per Curiam

BY:

FOR THE COURT:

Mark J. Langer, Clerk

/s/

Daniel J. Reidy

Deputy Clerk

- 48a 116

i

I told you I didn’t write this over lunch.

2

All right.

3

This is the motion to suppress evidence from

4

5

6

7

Let me just rule on the other motions.

November 28th of 2017, the traffic stop.

Let me just say:

I’m, then, also granting the

government’s motion for reconsideration.

On November 28th, 2017, officers from the Prince

8

George’s County Police Department stopped Defendant

9

Anthony Fields while parked in a silver Range Rover in a

i0

shopping center parking lot.

ii

A search of Fields and the Range Rover uncovered a

12

white powdery substance that was suspected to be cocaine but

13

later determined actually to be the supplement, mannitol,

14

over $9,000 in cash, a small white sheet of paper that the

15

government contends is a drug debt ledger, and false-bottom

16

plastic containers used to conceal narcotics.

17

was arrested and charged with possession with intent to

18

distribute cocaine.

Mr. Fields

19

Thereafter, on January 30th, 2018, Special Agent

20

Rebekah Moss applied for warrants to search various places

21

that relied, in part, on Mr. Fields’ stop and arrest on

22

November 28th, 2017.

23

24

25

Mr. Fields moves to suppress the evidence seized

during the Maryland traffic stop and arrest.

The Court held an evidentiary hearing on

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1

Mr. Fields’ motion on February 12th, 2019, and February

2

15th, 2019.

3

The government presented two witnesses:

Special

4

Agent Sean Chaney, who, at the time, was a sergeant

5

supervisor with the Prince George’s County Police

6

Department, and is now employed with the Maryland State

7

Attorney General’s office; and, two, Officer

8

Jonathan Haskett, who presently is employed by the Prince

9

George’s County Police Department.

i0

The defense called no witnesses.

ii

The Court also admitted into evidence various

12

photographs of the items seized during the search, as well

13

as Officer Haskett’s written report of the arrest.

14

The Court found Special Agent Chaney and Officer

15

Haskett to be credible and makes the following factual

16

findings based on their testimony:

17

On the day in question, Special Agent Chaney and

18

the detective under his command, Detective Brandon Taylor,

19

were conducting surveillance of Babs Records, a store

2O

located on Marlboro Pike, and known to law enforcement for

21

selling drug paraphernalia.

22

The surveillance was not for a specific

23

investigative purpose but instead was used by Special Agent

24

Chaney to train Detective Taylor in surveillance techniques.

25

During their surveillance of Babs Records, they

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1

witnessed a man, later identified as Mr. Fields, enter

2

Babs Records without a bag and then exit a short time later

3

with a bag.

4

Based on this observation and his years of

5

experience, knowledge of the sale of drug paraphernalia at

6

Babs Records, Special Agent Chaney grew suspicious of the

7

man, and so decided to follow him.

8

Mr. Fields got into a silver Range Rover and drove

9

first to a restaurant where Mr. Fields remained for an

i0

unspecified period of time.

ii

12

13

He then drove to a parking lot of a shopping

center on Marlboro Pike.

After Mr. Fields arrived there, Special Agent

14

Chaney observed another man approach the Range Rover, though

15

he could not say from where.

16

remain inside for less than two minutes, and then depart,

17

though he could not say to where the man departed.

He then saw the man enter it,

18

Mr. Fields never left the vehicle.

19

Special Agent Chaney could not see what transpired

20

21

22

23

between the two men inside the Range Rover.

Nevertheless, he suspected the two men in the

Range Rover had engaged in a drug transaction.

He so deduced based on knowledge and experience of

24

Babs Records as a place to purchase drug paraphernalia,

25

combined with seeing a man quickly enter and exit the

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1

Range Rover in the parking lot.

2

He said that this was also consistent with the

3

drug sale because in his experience, a dealer usually

4

remains in the car, while the buyer approaches the car and

5

enters it.

6

Thus having suspected a drug deal, Special Agent

7

Chaney called for uniformed officers to conduct a stop of

8

the Range Rover.

9

Approximately 3:00 p.m., Officer Haskett, in a

i0

marked police car, responded to this call for a suspected

ii

drug transaction, along with other officers in his unit.

12

At some point, though the testimony was not clear

13

on this, Officer Haskett spotted the Range Rover and he

14

observed it speeding in a parking lot located at 58548 --

15

excuse me, he observed it speeding in a parking lot located

16

at 5848 Silver Hill Road.

17

Though Officer Haskett did not know the speed

18

limit in the parking lot, he believed that his high speed or

19

the high speed violated a Maryland law prohibiting driving

2O

at a speed greater than reasonable.

21

Officer Haskett further testified that in his

22

judgment, the speed of the Range Rover presented a safety

23

issue, because there were pedestrians in the parking lot at

24

the time, and he agreed that the parking lot was crowded.

25

On cross-examination, defense tried to discredit

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1

this observation by suggesting that Officer Haskett had not

2

included it in his report, namely that the Range Rover was

3

"speeding."

4

The Court does not find his line of examination to

5

undermine Officer Haskett’s testimony.

6

that he observed the Range Rover "traveling at a high rate

7

of speed through the parking lot," and there’s no material

8

difference between that description and the term "speeding."

9

The Range Rover then parked in the lot.

His report states

Officer

i0

Haskett did not immediately approach the car.

ii

observed it for a period of minutes to see if the driver of

12

the car was there to meet anyone with whom he might exchange

13

drugs.

14

anyone approach it.

15

Instead, he

He neither observed the driver leave the car nor

Eventually, Officer Haskett and two other marked

16

cars performed what is termed a "pinch" to prevent the

17

Range Rover from driving away.

18

Officer Haskett approached from the rear of the

19

car.

20

he observed the driver, Mr. Fields, surreptitiously place a

21

white object into his pants pocket.

22

23

24

25

And upon arriving at the driver’s side of the vehicle,

He asked Mr. Fields for his license and

registration.

He observed Mr. Fields breathing heavily, darting

his eyes and acting nervously.

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I

He then asked Mr. Fields to step out of the car.

2

After doing so, Officer Haskett observed

3

Mr. Fields patting and manipulating his jacket and pants

4

pocket.

5

Officer Haskett advised Mr. Fields to keep his

6

hands away from his pockets because he was concerned that

7

Mr. Fields may have possessed a weapon.

8

He then conducted a pat-down of Mr. Fields.

9

During the pat-down, Mr. Fields stated, without

i0

prompting, that "the white powder is in his pocket" --

ii

excuse me, "the white powder in his pocket is a supplement."

12

13

14

Mr. Fields then said that the "white powder" was

in his right jacket pocket.

Officer Haskett then removed from the right jacket

15

pocket a brown paper bag containing a white powdery

16

substance in a plastic bag.

17

18

Officer Haskett field tested the substance, which

resulted in a positive indication for cocaine.

19

Mr. Fields was then placed under arrest, at which

20

point Mr. Fields said that the white substance was mannitol.

21

A search of his person incident to arrest revealed

22

approximately $2,000 in cash in his pocket and a piece of

23

paper from his right pants pocket that Officer Haskett

24

identified as a drug ledger.

25

Because of the suspected narcotics and the large

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1

amount of cash found on Mr. Fields, a K-9 unit was called in

2

to perform a dog sniff.

3

4

The K-9 alerted to the presence of drugs in the

central console in the trunk area.

Based on this alert, officers performed a thorough

5

6

search of the car.

7

$7,000 in cash, diversion bottles commonly used to hide

8

drugs that contained a trace amount of white powder, and two

9

white bottles containing a white powder.

i0

This search uncovered approximately

Officer Haskett testified that this additional

ii

powder also field tested positive for cocaine, though he did

12

not take a photograph of the second field test.

Mr. Fields first objects to the legality of the

13

14

stop.

15

an objective one.

16

United States, 517 U.S. 806 from 1996.

17

In assessing the validity of the stop, the inquiry is

See United States versus -- Whren v.

As the D.C. Circuit stated in United States versus

18

Washington, Whren exemplifies -- this is a quote -- "Whren

19

exemplifies the broader principle that courts analyze

20

searches and seizures based on what an objectively

21

reasonable officer could have believed and done, not what

22

the officer subjectively thought."

23

at 578 from 2009.

24

25

And that’s 559 F.3d 573

Whereas here, one of the bases offered for the

stop is a traffic violation.

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- 55a 123

i

The Circuit has recognized that "A stop is

2

reasonable under the Fourth Amendment so long as the police

3

have probable cause to believe that a traffic violation has

4

occurred, regardless of the officer’s actual motivations for

5

the stop."

6

Fed. Appx. 153 at 154 from 2009.

That’s from United States versus Walters, 361

The Circuit also said, in Washington, that, "The

7

8

officer’s actual subjective motives, detecting guns" --

9

excuse me, "detecting drug and gun crimes are irrelevant to

i0

the Fourth Amendment analysis of the traffic stop and

ii

protective search of the car."

12

F.3d at 575.

That’s Washington at 559

As applied here, what these principles mean is

13

14

that if law enforcement had an objectively reasonable basis

15

to stop Mr. Fields for a traffic violation, it is

16

irrelevant, one, that the real reason was to investigate a

17

suspected drug transaction, and, two, that law enforcement

18

might have been wrong about having a reasonable, articulable

19

suspicion of a drug offense.

20

In this case, the Court finds that law enforcement

21

had probable cause to stop Mr. Fields for a traffic

22

violation.

23

As discussed, the Court credits Officer Haskett’s

24

testimony, that he observed Mr. Fields driving at a high

25

rate of speed in a shopping center parking lot.

WilliamPZaremba@gmail.com

- 56a 124

l

That observation gave Officer Haskett probable

2

cause to believe that Mr. Fields had committed a traffic

3

infraction.

Specifically, Title 21 Section 801 of the Maryland

4

5

state transportation code provides that "A person may not

6

drive a vehicle on a highway at a speed that, with regard to

7

the actual and potential dangers existing, is more than that

8

which is reasonable and prudent under the conditions."

9

I0

ii

That’s Maryland Code, annotated transportation

22-801.

That statute and the interpretation given to it by

12

the Maryland Court of Appeals defines the term "highway"

13

broadly enough such that it includes a shopping center

14

parking lot.

15

The statute defines "highway" as including "the

16

entire width between the boundary lines of any way or

17

thoroughfare of which any part is used by the public for

18

vehicular travel, whether or not the way or thoroughfare has

19

been dedicated to the public and accepted by any proper

20

authority."

21

22

23

That’s Maryland Code, annotated transportation

code, 11-127.

And in United States versus Ambrose, the

24

Court of Appeals of Maryland affirmed the breadth of the

25

definition of "highway," stating that, "Requiring a private

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i

roadway, driveway or parking lot to have an unrestricted

2

right of use by the public would, in total, render any

3

private roadway, driveway or parking lot immune to the motor

4

vehicle laws contained in Title 21.

5

illogical and violate the canons of statutory construction."

6

That’s 403 Md. Reporter 525 at 439 through 40.

Such a result would be

7

Thus, Title 2 Section 124 of the Maryland code

8

applies to the shopping center parking lot where Officer

9

Haskett observed Mr. Fields.

i0

It matters not that Officer Haskett was not able

ii

to cite chapter and verse of the Maryland code.

It is

12

sufficient that he observed Mr. Fields traveling at a

13

sufficiently high rate of speed for a parking lot that he

14

put at risk the safety of pedestrians.

15

stop was legal.

Accordingly, the

16

Mr. Fields also contends that there was no

17

justification for the pat-down search of his person.

18

that question is not a material one in this case because

19

Officer Haskett testified that during the pat-down,

20

Mr. Fields spontaneously said that the white powder in his

21

pocket was a supplement and indicated that the substance

22

could be found in his right jacket pocket.

23

But

That statement either standing alone or in

24

combination with other facts known to law enforcement about

25

Fields’ suspected drug activities that day justified Officer

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1

Haskett removing the brown bag containing the white powder

2

substance from Mr. Fields’ pocket.

3

Once the substance field tested positive for

4

cocaine, Officer Haskett was permitted to search Mr. Fields.

5

In following the positive dog sniff, law

6

enforcement was permitted to search the car.

7

Even if the frisk were relevant, for example, if

8

Fields contends that the illegal frisk somehow negated the

9

spontaneous statements that he made, Officer Haskett’s

i0

conduct would still pose no Fourth Amendment concern.

ii

"When police have an objectively reasonable basis

12

to conduct a traffic stop for a suspected moving violation

13

and possess or develop an objectively reasonable fear the

14

driver may be armed, the officers may frisk the driver and

15

search the car."

16

17

18

That’s Washington, 559 F.3d at 575.

In this case, Officer Haskett possessed a

reasonable fear that Mr. Fields might be armed.

Haskett had been told that Fields might have been

19

engaged in a drug transaction, and it is not uncommon for

2O

traffickers to have access to firearms and weapons.

21

Furthermore, Officer Haskett observed Mr. Fields

22

put a white object in his pants pocket; and after he got out

23

of the car, Mr. Fields patted down both his jacket and pants

24

pockets, behavior that caused Officer Haskett to become

25

concerned that Mr. Fields might have a weapon.

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1

Giving due regard for officer safety, the Court

2

finds that Officer Haskett had "a reasonable belief based on

3

specific and articulable facts, which taken together with

4

the rational inference from those facts, reasonably warrant,

5

in his belief, that Mr. Fields was dangerous and that he may

6

gain immediate control of weapons."

7

modified, Michigan versus Long, 563 U.S. 1032 at 1049

8

through 50, 1968.

9

And that’s quoting, as

And so for these reasons, Mr. Fields’ motion to

i0

suppress the evidence from the November 28th, 2017, traffic

ii

stop, which is ECF 66, is denied.

12

All right.

Finally, I’ll get to the search --

13

excuse me, the seizure of the keys and the Suboxone strips

14

on February ist.

15

On February ist, 2018, law enforcement executed a

16

search warrant for a silver 2018 Land Rover driven by

17

Mr. Fields as relevant to Mr. Fields’ motion.

18

seized keys attached to a Redskins’ lanyard and 23 Suboxone

19

Strips in his pants pockets.

20

Officers

Mr. Fields moves to suppress those items on the

21

ground, that the search and seizure violated his Fourth

22

Amendment rights.

23

The Court held a hearing on February 15th, 2019.

24

Special Agent Wayne Gerrish and Special Agent Rebekah Moss

25

testified for the government.

Mr. Fields testified on his

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i

understand that?

2

THE DEFENDANT:

3

But it was -- I was at least --

4

THE COURT:

5

And you still wish to proceed without a lawyer?

6

THE DEFENDANT:

7

THE COURT:

8

Why don’t you have a seat.

9

I’ll say, I’ve never been in a trial in which

I understand that.

Hang on.

Yes, sir, yeah.

Okay.

i0

every day presents new, interesting challenges quite like

ii

this one.

I have to reach all the way back to 1972, the case

12

13

is United States versus Dougherty, 473 F.2d 1113, from the

14

D.C. Circuit.

15

D.C. Circuit writes as follows:

"In sum, whether

16

or not the right of pro se representation has a

17

constitutional foundation, it is patently a statutory right.

18

See U.S. -- 28 U.S.C. 1654.

19

"This right was not only conferred by Congress in

20

1789 but has wide reverberation in organic state law and was

21

recognized by Congress as a fundamental right.

22

"We conclude that this right must be recognized if

23

it is timely asserted and accompanied by a valid waiver of

24

counsel.

25

"And if it is not itself waived, either expressly

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1

or constructively, as by disruptive behavior during trial.

"The precedents relied on by the government or

2

3

subjecting the pro se right to extensive qualifications do

4

no more than establish these basic -- three of these basic

5

elements:

6

counsel, and the possibility of a waiver of the pro se

7

right.

8

Timely assertion, need for intelligent waiver of

"A number of cases involve the special

9

circumstances of defendants whose mental capacity was

i0

impaired.

ii

"The bulk of the cases cited to us involve

12

requests made after the commencement of trial and do no more

13

than apply the recognized principle that the fundamental

14

right to conduct the case pro se is one that must be claimed

15

timely before trial begins.

16

"Just as a defendant, who has an unrestricted

17

right to retain counsel of his own choosing must seek

18

permission of the Court once his choice has been made to

19

select a different retained counsel and is subject to the

20

sound discretion of the Court when he seeks to make a change

21

after trial has commenced, so a defendant must obtain the

22

Court’s permission when he seeks to make a change in order

23

to select himself as counsel.

24

25

"When the pro se right is claimed after trial has

begun, the Court exercises its discretion.

WilliamPZaremba@gmail.com

It may weigh the

- 62a 19

i

inconvenience threatened by defendant’s belated request

2

against the possible prejudice from denial of defendant’s

3

request.

"In exercising discretion, the judge may take into

4

5

account the circumstances at the time, whether there has

6

been a prior disruptive behavior by defendant, whether the

7

trial is in an advanced stage.

8

"The right to self-representation, though assert÷d

9

before trial, can be lost by disruptive behavior during

i0

trial, constituting constructive waiver.

ii

"But that is a far different situation from that

12

presented by the instant case where appellants unequivocally

13

claim the right to represent themselves well in advance of

14

the beginning of trial and selection of the jury."

15

16

That case, as I said, United States versus

Dougherty.

United States versus Washington, D.C. Circuit case

17

18

decided October 20, 2003, 353 F.3d 42, case in which a

19

person demanded the right to represent himself at a closing.

20

The Circuit wrote and held that the District Court

21

did not abuse its discretion by refusing that request.

22

The Court wrote,

"A person accused of a crime has

23

in absolute right under the Sixth Amendment to represent

24

himself only if he asserts that right before trial," citing

25

Dougherty.

WilliamPZaremba@gmail.com

- 63a 2O

1

Although I don’t understand why they said it’s a

2

constitutional right, because Dougherty didn’t say that, but

3

in any event, "We, therefore, only review for abuse of

4

discretion the District Court’s denial of Mr. Washington’s

5

motion to deliver his own closing argument.

6

"The District Court clearly did not abuse its

7

discretion by denying Washington’s request which came at the

8

close of trial after the government had rested its case and

9

the defense had announced Washington would not testify on

i0

his own behalf.

ii

"In view of the timing and the specific nature of

12

the request not to take over from counsel for the reminder

13

of the case but, rather, to do his own closing argument, the

14

District Court was reasonably concerned with presenting

15

Washington from basically testifying without having to be

16

cross-examined."

17

We find ourselves somewhere not quite as far as

18

along, obviously, as Washington but, nevertheless, we find

19

ourselves way well along in this case.

20

We are now more than a week -- or we’re about to

21

start the second week of evidence in this case.

A lot of

22

evidence has been presented by the government.

There is

23

still yet more evidence to be presented, including that of a

24

cooperating witness.

25

Mr. Fields does not have legal training.

WilliamPZaremba@gmail.com

He does

- 64a 21

1

not have knowledge of the legal procedures and the Rules of

2

Evidence that are going to be critical going forward in this

3

case.

4

5

6

And I cannot ignore the interests and the rights

of the other defendants in this case.

The other lawyers are right, Mr. Fields.

If you

7

get up and represent yourself at this juncture, you risk

8

harming their cases; whether it’s by a question you ask;

9

whether it’s by some objection you make or by an objection

i0

you don’t make; whether it’s by calling a witness who might

ii

hurt one of these other defendants; and I have to, in this

12

case, not only consider your rights but the rights of these

13

four other men.

14

15

16

And my fear is that if you represent yourself, the

rights of these four other men will be jeopardized.

And so I’m not prepared, given the late juncture

17

and the amount of time that has passed in this case and

18

where we find ourselves in this case, to grant your request

19

to represent yourself.

20

21

22

Ms. West will continue to represent you in this

trial and you will receive her assistance.

You are warned that, to the extent you are

23

unsatisfied with this and it causes you to become angry or

24

unhappy, let alone disruptive, you know, I will have -- you

25

may be removed from the courtroom, if you become disruptive.

WilliamPZaremba@gmail.com

- 65a 22

1

I’m not saying you have been, but I’m saying --

2

THE DEFENDANT:

3

attend no more of these proceedings.

4

I want to exercise my right not to

I want to exercise my right not to attend no more

5

of these proceedings.

6

without me.

So you can have the whole trial

Okay.

7

THE COURT:

8

Why don’t you stand up, Mr. Fields.

9

Let me just make sure you understand what you’re

i0

asking me, okay?

MS. WEST:

ii

12

May I have a moment to confer with

Mr. Fields, Your Honor?

THE COURT:

14

(Defense counsel conferred with Defendant Fields

15

Sure.

Why don’t you speak with him.

13

off the record.)

16

MS. WEST:

Your Honor, I’m sitting at the table

17

and everybody can hear my conversation with Mr. Fields.

18

ask permission to speak with him for five minutes in the

19

lockup.

20

THE COURT:

You’ve got two minutes.

21

MS. WEST:

Yes, sir.

22

THE COURT:

I’ve got to start this trial.

23

(Counsel and Defendant Fields exited the

24

25

courtroom.)

MS. HERNANDEZ:

Your Honor, I know you have to

WilliamPZaremba@gmail.com

I’d

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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