474 F.3d 904 (6th Cir. 2007), 05-3562, United State v. Stover

Docket Nº:Bart STOVER (05-3562); Timothy Hinton (05-3638), Defendants-Appellants.
Citation:474 F.3d 904
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:January 30, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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474 F.3d 904 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bart STOVER (05-3562); Timothy Hinton (05-3638), Defendants-Appellants.

Nos. 05-3562, 05-3638.

United States Court of Appeals, Sixth Circuit.

January 30, 2007

Argued and Submitted: Nov. 1, 2006.

Appeal from the United States District Court for the Northern District of Ohio, No. 04-00298—Dan A. Polster, District Judge.

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[Copyrighted Material Omitted]

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Before: CLAY and SUTTON, Circuit Judges; SHARP, District Judge.[*]

COUNSEL

ARGUED:

Matthew M. Robinson, Robinson & Brandt, Cincinnati, Ohio, for Appellants.

Blas E. Serrano, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

ON BRIEF:

Matthew M. Robinson, Robinson & Brandt, Cincinnati, Ohio, David L. Doughten, Doughten & Smith, Cleveland, Ohio, for Appellants.

Blas E. Serrano, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

OPINION

CLAY, Circuit Judge.

Defendants Bart Stover and Timothy Hinton appeal their criminal convictions. Defendant Stover was convicted of one count of conspiracy to possess with the intent to distribute cocaine and marijuana

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under 21 U.S.C. §§ 846 and 841(b)(1)(A), and one count of using a communication facility to facilitate the commission of a drug trafficking offense under 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Defendant Hinton was convicted of one count of conspiracy to possess with the intent to distribute cocaine and marijuana under 21 U.S.C. §§ 846 and 841(b)(1)(B); two counts of possessing marijuana with the intent to distribute under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D); and four counts of using a communication facility to facilitate the commission of a drug trafficking offense under 21 U.S.C. § 843(b) and 18 U.S.C. § 2. For the following reasons, we AFFIRM the judgment of the district court.

BACKGROUND

The drug conspiracy that formed the basis of this case revolved around Manuel Garza, who, in the fall of 2001, moved from Texas to the area of Ashland and Mansfield, Ohio, and started selling cocaine and marijuana. Defendant Stover's primary involvement was in allowing drugs to be stored at a garage he leased in exchange for cash payments. Defendant Hinton was more actively engaged in the distribution of drugs. Garza supplied Defendant Hinton with marijuana and cocaine on a regular basis, and Defendant Hinton traveled with Garza to Texas to pick up shipments of marijuana on two occasions, where the shipments weighed forty and sixty pounds, respectively. On these trips, Defendant Hinton and Garza shared equally the cost of the drugs purchased.

On or about June 10, 2004, most of the participants in this conspiracy were arrested. On August 4, 2004, a federal grand jury returned a one hundred-count indictment that listed twenty-two defendants, including Defendants Hinton and Stover. Defendants Hinton and Stover were charged with conspiracy to possess with the intent to distribute marijuana and cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and with using a telephone to facilitate the commission of a drug trafficking offense in violation of 21 U.S.C. § 843(b). Defendant Hinton was additionally charged with possession of marijuana with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). Defendant Stover was additionally charged with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).

Prior to trial, Defendant Hinton filed a motion to suppress evidence derived from a search of his house incident to his June 10, 2004 arrest, claiming that the search violated his Fourth Amendment rights. The district court held a hearing on the motion on December 17, 2004, and denied the motion on the same day.

A jury trial commenced on January 25, 2005. The prosecution elicited testimony from numerous co-conspirators and police officers, and entered into evidence multiple audio tapes that had been intercepted by the government, upon which Defendants Hinton and Stover were talking about drug deals. Defendant Hinton's defense at trial was that, although he was friends with Garza because their sons were friends, he was not involved with the conspiracy. According to Defendant Hinton, on one occasion Garza broke into his house and shot at him, because Garza believed that Defendant Hinton was selling drugs to Garza's customers. After this incident, Defendant Hinton allegedly feared for his life, and this fear caused him to agree to hold a quantity of drugs for Garza. Defendant Stover's defense at trial was also a denial of involvement in the conspiracy. The drugs that were stored in Defendant Stover's warehouse were hidden in pieces of furniture, and Defendant Stover claimed that though he allowed the furniture to be

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stored in his warehouse, he did not know that the furniture contained drugs. Defendant Stover presented three witnesses on his behalf, but did not testify himself.

The jury convicted Defendant Hinton of conspiracy to possess with the intent to distribute cocaine and marijuana, of possession of marijuana with the intent to distribute, and of using a telephone to facilitate the commission of a drug trafficking offense. Defendant Stover was convicted of conspiracy to possess with the intent to distribute cocaine and marijuana and of using a telephone to facilitate the commission of a drug trafficking offense, but was acquitted of the money laundering charges. On April 12,2005, Defendant Stover was sentenced to a term of two hundred-forty months imprisonment. Defendant Hinton was sentenced on May 12,2005, to a term of ninety-seven months imprisonment. Defendants Stover and Hinton filed timely notices of appeal on April 20, 2005 and May 16, 2005, respectively.

DISCUSSION

A. WAIVER OF THE RIGHT TO TESTIFY

The only issue Defendant Stover raises on appeal is whether his waiver of his right to testify on his own behalf was knowing and intelligent. We review the propriety of a defendant's waiver of his right to testify de novo. United States v. Webber, 208 F.3d 545, 550 (6th Cir. 2000).

A defendant's right to testify on his own behalf is a fundamental right. See Rock v. Arkansas, 483 U.S. 44, 52-53 & n. 10, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The right cannot be waived by a defendant's counsel on his behalf. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In order for a defendant to waive a fundamental right, such waiver must be knowing and intelligent. See Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). However, not all fundamental rights must be waived by the defendant after an on-the-record colloquy with the court. See United States v. Ortiz, 82 F.3d 1066, 1071-72 (D.C.Cir.1996). The waiver of certain fundamental rights can be presumed from a defendant's conduct alone, absent circumstances giving rise to a contrary inference. See id. at 1071 (citing cases that presume waiver of the right to represent oneself, the right to testify, and the right against self-incrimination in certain scenarios).

In Webber, we addressed the question now before us:

Although the ultimate decision whether to testify rests with the defendant, when a tactical decision is made not to have the defendant testify, the defendant's assent is presumed. [United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)].... Barring any statements or actions from the defendant indicating disagreement with counsel or the desire to testify, the trial court is neither required to sua sponte address a silent defendant and inquire whether the defendant knowingly and intentionally waived the right to testify, nor ensure that the defendant has waived the right on the record. Joelson, 7 F.3d at 177. See also United States v. Ortiz, 82 F.3d 1066, 1069 n.8 (D.C. Cir. 1996) (noting the agreement of the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits that the trial court does not have a duty to sua sponte conduct an on-the-record colloquy regarding waiver)....

A defendant who wants to testify can reject defense counsel's advice to the contrary by insisting on testifying, communicating with the trial court, or discharging

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counsel. Joelson, 7 F.3d at 177. At base, a defendant must "alert the trial court" that he desires to testify or that there is a disagreement with defense counsel regarding whether he should take the stand. Pelzer [v. United States, 105 F.3d 659 (table), 1997 WL 12125, at *2 (6th Cir. January 13, 1997) (unpublished)]. When a defendant does not alert the trial court of a disagreement, waiver of the right to testify may be inferred from the defendant's conduct. Waiver is presumed from the defendant's failure to testify or notify the trial court of the desire to do so. Joelson, 7 F.3d at 177.

208 F.3d at 551. This case is controlled by Webber. Because Defendant Stover did nothing to alert the trial court of his desire to testify, the trial court correctly presumed that Defendant Stover waived that right. The trial court was therefore under no duty to inquire as to whether Defendant Stover's waiver was knowing and intelligent, and its failure to make such an inquiry was not erroneous.

The cases on which Defendant Stover relies are inapposite. In Ward v. Sternes, 334 F.3d 696, 705-08 (7th Cir. 2003), the court found the defendant's waiver involuntary. The court had questioned defendant Ward if he understood his right to testify and Ward responded, "I guess, I don't know." Id. The court also stressed that Ward's "brain injuries severely disrupted his ability to think, reason, take in verbal information, and understand and use language to express his understanding." Id. at 705-06...

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