U.S. v. Marrero

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation651 F.3d 453
Docket NumberNo. 08–2075.,08–2075.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Juan Eugenio MARRERO, Defendant–Appellant.
Decision Date17 August 2011

651 F.3d 453

UNITED STATES of America, Plaintiff–Appellee,
v.
Juan Eugenio MARRERO, Defendant–Appellant.

No. 08–2075.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 14, 2011.Decided and Filed: July 6, 2011.Rehearing and Rehearing En Banc Denied Aug. 17, 2011.*


[651 F.3d 459]

ARGUED: Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Matthew G. Borgula, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Matthew G. Borgula, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. Juan Eugenio Marrero, Edgefield, South Carolina, pro se.Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.KENNEDY, J., delivered the opinion of the court, in which KETHLEDGE, J., joined. CLAY, J. (pp. 476–82), delivered a separate dissenting opinion.
OPINION
KENNEDY, Circuit Judge.

Defendant–Appellant Juan Eugenio Marrero was convicted of possessing with

[651 F.3d 460]

intent to distribute crack cocaine and marijuana, for which crimes he was sentenced to 360 months' imprisonment. On appeal, Marrero raises a plethora of arguments challenging his conviction and sentence. Primarily, he alleges that the district court violated his Sixth Amendment right to an attorney by refusing to appoint him substitute counsel and allowing him to represent himself at trial and sentencing. Because we determine that the district court did not abuse its discretion by denying Marrero's request for a new attorney, and because his remaining claims lack merit, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND

On the evening of October 2, 2007, Sergeant Paul Kenny of the Grand Rapids Police Department and Michigan State Troopers Bob Watson and Chris Bush went looking for Marrero at an apartment complex in Comstock Park, Michigan. Information gathered in an ongoing drug-trafficking investigation indicated that Marrero was selling cocaine, and the officers wanted to question him. After a resident directed the officers to a particular apartment unit, Sergeant Kenny knocked on the door and Marrero's girlfriend, Tina Walters, answered. Walters told the officers that Marrero was not currently there and gave them permission to come in and look for him. The officers' sweep of the apartment verified that Marrero was not inside, but in the kitchen they found crack cocaine residue, a digital scale, and Marrero's Bridge Card 1 next to an active burner. Surmising that the stove had recently been used to cook crack cocaine, the officers decided to canvass the area for Marrero.

In a common-area laundry room down the hall from the apartment, Trooper Bush discovered Marrero hiding inside of a dryer. Trooper Bush ordered Marrero to emerge, called Trooper Watson into the room, and attempted to handcuff Marrero. At that point, Marrero began to resist arrest by punching and kicking the troopers and trying to run away. In the resulting melee, Marrero—undeterred by multiple stuns from Trooper Bush's taser—managed to pull the troopers into the hall. Sergeant Kenny, who had remained in the apartment to speak with Walters, joined the scuffle upon hearing the troopers' calls for help, and the three officers finally managed to subdue Marrero. The officers each sustained minor injuries; Marrero emerged with several rug burns on his face, more than a dozen taser stuns, and complaints about pain in his shoulder, which had been injured prior to his encounter with the officers.

Once Marrero was secured, Trooper Bush returned to the laundry room, where he found 27.25 grams of crack cocaine in a washing machine. Police obtained a search warrant for the apartment, from which they recovered a total of 209.54 grams of marijuana in addition to the crack cocaine residue and other evidence found in the kitchen. Meanwhile, Marrero was examined by medical personnel, signed a waiver declining hospitalization, and was provided some water. Approximately half an hour after his arrest, Sergeant Kenny advised Marrero of his Miranda rights and Marrero agreed to speak. During the course of his conversation with Sergeant Kenny, Marrero admitted that: he had fought the officers because he did not want to go to prison; the crack cocaine seized from the laundry

[651 F.3d 461]

room was his; earlier that day, he had purchased $800 of cocaine that he planned to turn into crack cocaine; and the marijuana found in the apartment was his and he intended to sell it. Marrero was placed in state custody.

On November 7, 2007, Marrero was indicted in the United States District Court for the Western District of Michigan on two counts: possession with intent to distribute five or more grams of cocaine base and possession with intent to distribute marijuana, both in violation of 21 U.S.C. § 841(a)(1). A magistrate judge issued a writ of habeas corpus ad prosequendum directing the state to surrender Marrero to federal custody. Marrero had his first appearance in federal court on November 15, 2007, and the magistrate judge appointed Attorney Richard E. Zambon to represent him.

After initially pleading not guilty, Marrero pleaded guilty to the crack cocaine charge pursuant to a plea agreement on January 3, 2008. In exchange for Marrero's plea, the Government promised to dismiss the marijuana charge and to decline seeking an enhanced penalty based on Marrero's previous felony drug convictions. The district court scheduled sentencing for April 21, 2008, and directed that a presentence investigation report (“PSR”) be prepared. Marrero received the PSR in March of 2008.

On April 14, 2008, Marrero filed a pro se letter with the district court purporting to contain the following four motions, reprinted verbatim: “(1) motion to withdraw guilty plea[;] (2) motion for failed to appointment a truth federal public defendar counsel violation of Sixth Ammendment[;] (3) motion for evidentuary hearing for ineffective assistance of councel[;] (4) motion for lock of jurisdiction.” Additionally, on April 17, 2008, Marrero filed a pro se document titled “petition for writ of habeas corpus and subjiciendum [sic],” which was based on the district court's alleged lack of jurisdiction. The district court considered all of Marrero's motions at a hearing on April 21, 2008, the date scheduled for sentencing. During this proceeding, the district court determined that Marrero wished to withdraw his guilty plea because he wanted “to challenge everything.” Marrero's primary contentions seemed related to the district court's jurisdiction—he believed that the federal court lacked jurisdiction over his case because he was originally charged and bound over for trial in the state court—and his potential sentence—he was convinced that a bill introduced in, but not passed by, the United States House of Representatives had eliminated the sentencing disparity between crack-and powder-cocaine offenses. Furthermore, the district court ascertained that Marrero wanted a new attorney because “me and him [Zambon] we don't get along and everything.... [W]e always see for different point of view.” In particular, Marrero complained that Zambon had pressured him to plead guilty without allowing him to raise the above arguments to the court. He also objected to the fact that Zambon was not an employee of the federal defender's office.

After attempting to explain to Marrero that his jurisdictional and sentencing claims lacked merit, the district court denied his request for substitute counsel, insisting that all of his conflicts with his attorney were based on his “total and complete misperceptions as to what the law is.” Nevertheless, the district court allowed Marrero to withdraw his guilty plea, though it denied all of his other motions. A jury trial on both counts of the indictment was scheduled to begin on May 28, 2008. On April 25, 2008, the Government filed a supplemental information listing Marrero's three prior state-court convictions

[651 F.3d 462]

for felony drug crimes, which elevated the statutory mandatory-minimum sentence applicable to the charged offenses.

On May 8, 2008, Zambon filed a motion on behalf of Marrero stating that Marrero wanted to represent himself at trial. At the district court's hearing on the motion, held on May 16, 2008, Marrero clarified that he wished to proceed without counsel only “[b]ecause I can't get a new lawyer.” In response to the district court's inquiry into the nature of the conflict between Marrero and Zambon, Marrero insisted that “we got a conflict in every point” and “I don't see how I can go in trial and be properly represented while me and my attorney we have a conflict from the day we started.” Specifically, Marrero again complained that Zambon refused to act on his previously raised objections to the district court's jurisdiction and the disparate penalties applicable to crack- and powder-cocaine offenses. Marrero also objected to Zambon's failure to challenge his indictment before a grand jury, as he believed he had a right to do. Finally, Marrero expressed dissatisfaction with Zambon's response to his numerous requests for documents related to his case, saying he had belatedly provided him with the police report and did not procure for him the search warrant or the order to transfer him from state to federal custody.

After allowing Marrero to detail his conflict with Zambon, the district court concluded that “99 percent of it, if not a hundred percent of it, goes to [Marrero's] misunderstanding of exactly how the federal system works vis-a-vis the state government.” The district court further explained as follows:

Mr. Marrero has clearly asked for the appointment of another federal defender or CJA attorney to represent him in this case. And one of the purposes of my inquiring as to whether what [sic] those sources of conflict were to get on the record exactly all of those sources of conflict. And to the extent that there isn't any ambiguity there,...

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