U.S. v. Walker

• Decision Date: 15 April 1998
• Docket Number: Docket Nos. 96-1544,96-1545,96-1546
• Citation: 142 F.3d 103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyrone WALKER, Walter Diaz, a/k/a Eric Rogers, and Anthony Walker, a/k/a Tony Walker, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 103

142 F.3d 103

UNITED STATES of America, Plaintiff-Appellee, v. Tyrone WALKER, Walter Diaz, a/k/a Eric Rogers, and Anthony Walker, a/k/a Tony Walker, Defendants-Appellants.

Docket Nos. 96-1544, 96-1545, 96-1546.

United States Court of Appeals Second Circuit.

Argued Dec. 8, 1997.

Decided April 15, 1998.

Barry M. Fallick, Rochman, Platzer, Fallick, & Sternheim, New York City (Bobbi Sternheim, Rochman, Platzer, Fallick, & Sternheim) for Defendant-Appellant Tyrone Walker.

Carl J. Herman, Livingston, NJ, for Defendant-Appellant Walter Diaz.

Jeremy Gutman, New York City for Defendant-Appellant Anthony Walker.

Miroslav Lovric, Assistant United States Attorney for the Northern District of New York, Binghamton, NY (Thomas J. Maroney, United States Attorney for the Northern District of New York, Bernard Malone, Jr., Assistant United States Attorney) for Plaintiff-Appellee.

Before: MINER, PARKER, and WOOD, Jr. ^* , Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge:

Defendants Tyrone Walker, Walter Diaz, and Anthony Walker appeal from judgments entered against them in the United States District Court for the Northern District of New York, (McAvoy, C.J.), following a jury trial, convicting them of multiple crimes arising from their participation in narcotics trafficking. Due to an error in calculation, Anthony Walker's sentence is vacated and remanded to the district court for further proceedings. Because we find the remainder of the appellants' contentions to be meritless, we affirm the decision of the district court in all other respects.

Background

Tyrone Walker, Walter Diaz, and Anthony Walker were each indicted on all nine counts of an indictment. The indictment charged the appellants with: Count 1--conducting a criminal enterprise (21 U.S.C. §§ 848(a) and (c)); Count 2--commission of murder while engaged in a continuing criminal enterprise (21 U.S.C. § 848(e)(1)(A)); Count 3--commission of murder while engaged in a large narcotics conspiracy (21 U.S.C. § 841(b)(1)(A)); Count 4--conspiracy to distribute narcotics (21 U.S.C. § 841(a)(1)); Count 5--possession with intent to distribute cocaine (21 U.S.C. § 841(a)(1)); Counts 6 and 7--using and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)(1)); and Counts 8 and 9--possession of a firearm by a convicted felon (18 U.S.C § 922(g)). After a lengthy jury trial, Tyrone Walker was found guilty on all counts. Walter Diaz was convicted on Counts 3, 4, 5, 7, and 9. ¹ Anthony Walker was convicted on Counts 1, 3, 4, and 5. On appeal, the appellants raise numerous challenges to these convictions.

The evidence at trial concerned an alleged cocaine and crack distribution ring led by Tyrone Walker, Anthony Walker, and Diaz operating in upstate New York between 1989 and 1993. The government produced witnesses linking the three appellants to the murder of rival drug dealer Michael Monsour. The evidence was voluminous; in all, the government called more than ninety witnesses and presented more than two hundred exhibits. The trial record is copious and complex. Therefore, instead of addressing all of the evidence presented, we will address specific facts when they are relevant to our analysis.

Analysis

A. Tyrone Walker's Motion to Proceed Pro Se

Under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), a criminal defendant has a Sixth Amendment right to self-representation. If the defendant asks to proceed pro se before the trial commences this right is absolute, and his request must be granted. See United States v. Stevens, 83 F.3d 60, 66 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 255, 136 L.Ed.2d 181 (1996). Once a trial has begun, the defendant's right to self-representation is "sharply curtailed." Id. at 67 (quotation marks and citation omitted). 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." Id. (quotation marks and citation omitted). On appeal, considerable weight will be given to the district court's assessment of this balance. See United States v. Brown, 744 F.2d 905, 908 (2d Cir.1984).

On November 7, 1995, Tyrone Walker petitioned the court to allow him to proceed as co-counsel and informed the court that should his motion to act as co-counsel be denied he would then petition to proceed pro se. On November 8, 1995, when the court denied his motion to proceed as co-counsel, Walker moved to proceed pro se. On November 10, 1995, by written opinion, the court applied the standard applicable to requests made following the commencement of trial and denied Walker's request. The court also found that Walker's motion was motivated by an improper purpose to delay the proceedings.

Tyrone Walker contends that the district court erred in denying his application to proceed pro se. He asserts that his request was timely in that it was made before the jury was empaneled and sworn and before jeopardy had attached. Alternatively, Walker contends that any delay in alerting the court to his request was the fault of his attorneys and should not be attributed to him.

Tyrone Walker asserts that his application to proceed pro se was timely made. Walker concedes that the voir dire of jurors was virtually completed at the time he first indicated to the court any intention to proceed pro se. However, he contends that his request was not "made too late," since it was made before the jury was empaneled. It is unclear whether this assertion means that Walker believed his motion was made before the start of trial, or merely that it was made in time to avert any disruption of the proceedings.

If Walker believes that his motion was made before the start of trial, he is mistaken. In Stevens, this court clearly held that a motion made "just after the start of jury selection," Stevens, 83 F.3d at 66, was a motion "made after the start of trial." Id. at 67. In the present case, Walker made his motion after nineteen days of voir dire and just one day before opening arguments were scheduled to begin. Therefore, the district court was correct in treating Walker's motion as one made after the commencement of proceedings and applied the correct standard in its analysis.

Walker's assertion could also be viewed as a claim that his motion was made in time to avert any disruption of the proceedings. This claim also fails. The district court found that if Walker's request to proceed pro se were granted, disruption of the proceedings would be "overwhelming and inevitable." First, the court noted that if it were to grant Walker's motion and allow him to proceed pro se, it would inevitably be forced to sever Walker's case from that of the two other defendants in order to ensure that they would not be prejudiced by Walker's lack of legal skills. Once a severance was granted, the court would then be forced to delay one of the proceedings for several months until the conclusion of the first trial. We agree with this analysis.

Possible disruption must be weighed against the potential for prejudice to Walker if his motion were denied. Walker admits that he was satisfied with his attorneys. His only sound reason for wanting to represent himself was that he wanted the chance to show the jury that he was a human being and not a savage. This is not sufficient to outweigh the disruption that would result if Walker were allowed to represent himself. Further, based on Walker's response to questioning on his motion, the district court concluded that his motive was securing delay and obstructing the orderly course of the administration of justice. Therefore, Walker's reasons for self-representation were not only insufficient, they were improper. The district court judge acted within his discretion in denying Walker's motion.

Finally, Walker argues that if his motion for self-representation was untimely, it was because his attorneys failed to alert the court as to his desire to proceed pro se. However, on November 7, 1995, when Tyrone Walker addressed the court regarding this point, he stated that he was going to make a motion to proceed pro se only if the court denied his request to act as co-counsel. Additionally, Walker's co-defendants raised representation issues with the court in Walker's presence prior to the commencement of proceedings. The fact that Walker passed up numerous opportunities to alert the court personally to his desire to proceed pro se severely undercuts his argument. Walker is responsible for the fact that his motion to proceed pro se was untimely; the delay cannot be attributed to his attorneys.

B. Tyrone Walker's Claim Regarding the Monsour Murder

Tyrone Walker appeals the district court's refusal to allow him to admit into evidence during his case-in-chief an alleged admission made by the government during voir dire. In a dispute regarding an allegedly over-simplified scenario that the defense was proposing to prospective jurors, one of the prosecutors stated to the court during a bench conference:

Now, I know that we can't try the case in front of each one of these potential jurors, but the charge in this case is, of course, the Monsour murder, and the Court knows a lot about what the Government intends to prove. But I would represent to the Court again that in this case, the evidence the Government will offer is that all three of these defendants planned the robbery of Michael Monsour, believing that he had drugs and/or money. We don't know if they went there with the intention of killing him or not. We know that they went armed, we know that one of the guns was operable, we know that the other was not. And for purposes of robbery, it usually doesn't matter whether a gun works or even is real, as this Court probably knows. Just displaying the gun to an intended victim is usually sufficient to cause that victim to...