U.S. v. Taylor

• Citation: 113 F.3d 1136
• Decision Date: 12 May 1997
• Docket Number: No. 96-6173,96-6173
• Parties: 97 CJ C.A.R. 718 UNITED STATES of America, Plaintiff-Appellee, v. John R. TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1136

113 F.3d 1136

97 CJ C.A.R. 718

UNITED STATES of America, Plaintiff-Appellee, v. John R. TAYLOR, Defendant-Appellant.

No. 96-6173.

United States Court of Appeals Tenth Circuit.

May 12, 1997.

Vicki Mandell-King, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender with her on the briefs), Denver, Colorado, for Plaintiff-Appellee.

Frank Michael Ringer, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Defendant-Appellant.

Before BRORBY, HOLLOWAY and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

An Oklahoma federal jury convicted John R. Taylor of possession with intent to distribute cocaine base, conspiracy to possess with intent to distribute and to distribute cocaine base, and possession of a firearm by a convicted felon. The United States District Court for the Western District of Oklahoma sentenced Mr. Taylor to 360 months imprisonment for each offense. Mr. Taylor appeals his convictions, arguing: (1) the district court violated his Sixth Amendment right to counsel by failing to ensure he voluntarily, knowingly and intelligently waived that right, and (2) his conviction for possession of a firearm by a convicted felon was not supported by sufficient evidence. We reverse and remand to the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 26, 1995, Mr. Taylor was arrested for possession with intent to distribute cocaine base. Mr. Taylor appeared before a United States magistrate judge who appointed counsel, Joseph Wells, to represent Mr. Taylor. The magistrate judge also advised Mr. Taylor of his rights and the charges against him.

In November 1995, a grand jury returned an indictment against Mr. Taylor and three other named defendants. The indictment charged Mr. Taylor with the following four offenses: (1) conspiracy to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and (4) receipt of a firearm, in violation of 18 U.S.C. § 922(k).

On December 14, 1995, Mr. Wells moved to withdraw as counsel of record for Mr. Taylor. Mr. Wells informed the court Mr. Taylor intended to represent himself pro se. On that same date, Mr. Taylor filed an appearance form indicating himself as counsel.

Thereafter, on December 18, 1995, the court entered the following order:

The motion to withdraw of court appointed counsel, Joseph L. Wells, is denied. Counsel is requested to serve in a stand-by advisory capacity only, in the event the defendant elects to represent himself, pro se. The defendant is directed to declare his intentions in this regard by written statement filed with the clerk of court within ten (10) days to that effect, acknowledging his assumption of all matters related to his defense and preparation for trial.

If defendant elects to continue to avail himself of the services of his court appointed counsel he shall so state by written statement within ten (10) days hereof.

Notwithstanding the court's explicit directive, Mr. Taylor never responded to the December 18 order. However, Mr. Taylor did draft, sign and file a "Motion to Demurrer" and a "Writ of Mandamus" with the court prior to trial. On January 24, 1996, the district court denied the "Motion to Demurrer" and "Writ of Mandamus."

Mr. Taylor's trial began on March 11, 1996. Prior to jury selection, the district judge encouraged Mr. Taylor to use the services of Mr. Wells. The court stated:

Mr. Taylor, as someone appearing on his own behalf, it's your right to do that, and we'll try the case just as well as we can under these circumstances.

I do want to encourage you, however, to utilize Mr. Wells and get his guidance on matters that might not be familiar to you. It's very technical, it's not a simple matter, federal criminal procedure, and I want to make sure that this trial is fair to you and fair to your co-defendant as well as to the government. So he's there as a resource to you, and I do encourage you to use him as much as you can in order to facilitate the trial.

Although Mr. Taylor made no opening statement at trial, he cross-examined some of the government's witnesses. Mr. Taylor allowed Mr. Wells to cross-examine one government witness, and Mr. Taylor did not resist when Mr. Wells objected to certain testimony. In addition, Mr. Taylor relied on Mr. Well's advice with respect to certain matters. Mr. Taylor delivered a closing argument to the jury.

The government's evidence at trial revealed Mr. Taylor came to Oklahoma City, Oklahoma, from California in June 1995. Mr. Taylor brought two ounces of cocaine with him and Mr. Taylor and Ahmad Jamal Davis sold the cocaine to individuals in Oklahoma City. In July 1995, Mr. Taylor flew back to California, and returned with nine ounces of powder cocaine. The cocaine was "cooked" and half of it was sold.

In August 1995, Abdoulia Wallace, Mr. Davis, and Mr. Taylor were staying in apartment 120 at the Silvercrest Apartments in Oklahoma City. Apparently, Jimmy D. Reed had rented the apartment for Mr. Taylor and Mr. Wallace.

On or before August 2, 1995, the Oklahoma City Police Department obtained a search warrant permitting the police to search Silvercrest apartment 120. The police executed this search warrant on the afternoon of August 2, 1995. Mr. Taylor, Mr. Wallace, and Dominique Banks were in apartment 120 at the time of the search. When the officers entered the apartment, Mr. Taylor was "by the couch" near the front door, Mr. Banks was seated at a nearby table, and Mr. Wallace was situated in the northeast bedroom. Mr. Taylor consented to a police search of his person. Officer Mike Kelly, who conducted the search of Mr. Taylor, found no guns or weapons on Mr. Taylor.

Officer Kelly also participated in the search of the northeast bedroom. In the closet in the northeast bedroom, Officer Kelly uncovered approximately 22.6 grams of crack cocaine, a Jennings Bryco nine millimeter handgun, and some bullets. Officer Kelly found a Davis .380 handgun under the mattress in the northeast bedroom. In an entertainment center located in the northeast bedroom, Officer Kelly discovered more crack cocaine along with digital scales and plastic baggies. Also in the entertainment center, Officer Kelly found Western Union money transfers in the name of John Taylor and Joanne Taylor, and pawn shop tickets from A & V Pawn Shop in Long Beach, California. At trial, Stanley Zuckerman, the president of A & V Pawn Shop, testified his records established the pawn tickets found in the entertainment center belonged to Mr. Taylor.

Also at trial, Mr. Davis, Mr. Reed, and Rhonda Moore each testified they had never seen Mr. Taylor carry a gun. However, Burgundy Pierce testified she had seen Mr. Taylor with a gun on one or two occasions. Although her description of the gun she saw Mr. Taylor carrying was vague, Ms. Pierce stated it was a small handgun, and she believed it was a revolver, not an automatic.

On March 13, 1995, the jury returned a verdict of guilty against Mr. Taylor on the following three charges: (1) conspiracy to possess with intent to distribute and to distribute cocaine base; (2) possession with intent to distribute cocaine base; and (3) possession of a firearm by a convicted felon. The jury acquitted Mr. Taylor on the charge of receipt of a firearm.

At sentencing, the court asked Mr. Taylor if he wished to continue to represent himself, and Mr. Taylor responded it did not matter to him. The court complimented Mr. Taylor on his intelligence and expressed its wish it had been put to "more constructive use." The court then sentenced Mr. Taylor to 360 months imprisonment for each drug count and 120 months imprisonment for the possession of firearm count. The court ordered the sentences to run concurrently.

II. ISSUES RAISED ON APPEAL

Mr. Taylor raises the following two issues on appeal: (1) whether the district court violated Mr. Taylor's Sixth Amendment right to counsel by failing to adequately ensure Mr. Taylor's decision to waive his right to counsel was made voluntarily, knowingly, and intelligently; and (2) whether Mr. Taylor's conviction of possession of a firearm by a convicted felon should be reversed for insufficient evidence.

III. ANALYSIS

A. Sixth Amendment Right to Counsel

Mr. Taylor first contends the district court violated his Sixth Amendment right to counsel by failing to adequately determine his decision to waive counsel and represent himself was made voluntarily, knowingly, and intelligently. We review de novo the question of whether a waiver of counsel is voluntary, knowing, and intelligent. Brewer v. Williams, 430 U.S. 387, 403-04, 97 S.Ct. 1232, 1241-42, 51 L.Ed.2d 424 (1977); United States v. Burson, 952 F.2d 1196, 1199 (10th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992); United States v. Silkwood, 893 F.2d 245, 248 (10th Cir.1989), cert. denied, 496 U.S. 908, 110 S.Ct. 2593, 110 L.Ed.2d 274 (1990).

An accused has a Sixth Amendment right to waive his right to counsel and conduct his own defense in a criminal case. Faretta v. California, 422 U.S. 806, 821, 832, 95 S.Ct. 2525, 2534, 2539-40, 45 L.Ed.2d 562 (1975); United States v. Willie, 941 F.2d 1384, 1388 (10th Cir.1991), cert. denied, 502 U.S. 1106, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992). However, a waiver of counsel will not be valid unless it is " 'an intentional relinquishment or abandonment of a known right or privilege.' " Willie, 941 F.2d at 1388 (quoting United States v. McConnell, 749 F.2d 1441, 1450-51 (10th Cir.1984)). In determining whether a defendant has effectively waived his right to counsel we must conduct two distinct inquiries. First, we must determine whether the defendant voluntarily waived his right to counsel. See United...