United States v. Jones
| Decision Date | 09 February 2023 |
| Docket Number | 21-3252 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELMER CURTIS JONES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.
Following a trial by jury, Defendant Elmer Jones appeals his conviction on four counts of possession with intent to distribute controlled substances in violation of 21 U.S.C §§ 841(a)(1), (b)(1)(A)(viii) (methamphetamine), (b)(1)(B)(i) &(vi) (heroin/fentanyl mixture); (b)(1)(C) (LSD), and (b)(1)(D) (marijuana), as well as one count of possessing a firearm in furtherance of those offenses, 18 U.S.C. § 924(c)(1)(A)(i)). Jones argues on appeal that the district court violated his rights to a speedy trial, to counsel, and to cross-examine a witness adequately. In addition to alleging various other due process violations, he argues that the district court's within-guidelines sentence was substantively unreasonable. The Court AFFIRMS for the reasons set forth below.
I. BACKGROUND
On February 4, 2020, police officers found Jones asleep at the wheel of a car in the middle of an intersection with the engine running and with his foot on the brake. The officers searched Jones' car and discovered methamphetamine, marijuana, heroin, fentanyl, cocaine, and LSD, as well as a firearm and ammunition. Law enforcement officers arrested Jones on February 12, 2020. Three weeks later, on March 4, 2020, a grand jury indicted Jones on four counts of possession with intent to distribute and one count of possession of a firearm in connection with the drug offenses. The following procedural history is relevant to Jones' appeal.
Jones had multiple attorneys represent him throughout his criminal proceedings. By March 2020, Jones had retained attorney Matthew Pappas, whom the district court admitted pro hac vice. Over the next two months, Pappas proved that he was not adequately up to the task of representing Jones. Pappas failed to meet deadlines and failed to communicate with Jones, leading the district court to observe that "[b]y all appearances, Attorney Pappas has spent the 90 days since his last contact with his client doing nothing in this matter beyond filing a cursory motion for bond ...." Order to Show Cause, R. 25, Page ID #72-74. Based upon Pappas' negligent representation of Jones, the district court ordered Pappas to show cause why it should not revoke Pappas' pro hac vice status. Pappas responded that he Resp. to Order to Show Cause, R. 28, Page ID #85-86. Four days later, Pappas filed a supplemental response in which he reiterated that he was unable to represent Jones "properly." Suppl. Resp. to Order to Show Cause, R. 30, Page ID #89.
Subsequently, the district court conducted a hearing on its order to show cause. Pappas failed to appear, and Jones informed the court that Pappas had not communicated with Jones "[s]ince the last court hearing ...." Hr'g Tr., R. 140, Page ID #2803. With that knowledge, the court informed Jones that it did "not believe that [Pappas will] be able to continue to represent [Jones] in this matter." Id. at Page ID #2803-04. The court then asked Jones whether he wished to have the court appoint new counsel. Jones responded that although he would "rather [not have] new counsel until this process is completed," he "guess[ed that he had] no other option." Id. at Page ID #2804-05. When asked whether he could afford new counsel, Jones responded, "I don't have nothing else." Id. at Page ID #2805.
The next day, the district court removed Pappas as Jones' attorney. The court observed that it had "made every effort to allow Mr. Jones to retain his counsel of choice," but that Pappas "has shown no willingness to act as counsel for Mr. Jones." Order, R. 32, Page ID #95. Accordingly, the court concluded that "allowing Attorney Pappas to continue as counsel would present a grave threat to Mr. Jones' right to effective representation." Id. at Page ID #96.
The court appointed Attorney Damian Billak to represent Jones. Approximately ten weeks later, Jones sent the district court a letter complaining about the quality and quantity of his communication with Billak. Jones asked the court to hold Billak "to the same standard" to which it held Pappas. Letter, R. 40, Page ID #129. Later that month, the court conducted a status conference during which Jones reiterated his complaints. Following that hearing, Billak moved to withdraw as Jones' counsel, citing a "breakdown in the attorney-client relationship." Mot. to Withdraw as Counsel, R. 43, Page ID #133. Two weeks later, the district court denied Billak's motion. Billak moved again to withdraw as counsel two weeks later. Through that motion, Billak averred that "a complete breakdown in the attorney-client relationship has occurred making it impossible for counsel to continue representing" Jones. Mot. to Withdraw as Counsel, R. 54, Page ID #208.
In late October 2020, around the time that Billak filed his second motion to withdraw, the district court issued an order stating that it was "in receipt of an e-mail . . . from John Pappas."[1]Order, R. 55, Page ID #210. Through that e-mail, John[2] offered to "assist" Billak in Jones' defense. E-mail, R. 55-1, Page ID #211. In fact, John went so far as to attach to his e-mail a draft speedy trial motion. John also accused Billak of lacking "courtesy" and "professionalism," and of "whin[ing] to" the court. Id. at Page ID #214.
That same day, the court held a pretrial hearing. During that hearing, the court addressed Billak's motions to withdraw, as well as John's e-mail and proposed motion. Billak expressed to the court his concern that John was acting as shadow counsel. Billak insisted, moreover, that John was "undermining [Billak's] ability to completely represent" Jones. Pretrial Hr'g Tr., R. 131, Page ID #2047. The court alerted Jones that John was not admitted to practice before the court, and that John's communication with Jones was "totally improper." Id. at Page ID #2048. The court also advised Jones that, based upon the quality of John's draft speedy trial motion, John "clearly does not understand the law ...." Id. at Page ID #2049. At the same time, however, the court told Jones that he was free to continue relying upon John's advice. Indeed, the court noted that it was unable to stop Jones from speaking to John.
The court denied Billak's second motion to withdraw. It then called John in the presence of the parties. John represented to the court that he was a pilot, and that he was Matthew Pappas' father. The court advised John that he was interfering with Jones' right to an effective attorney. Responding, John insisted that he had "every right in the world to communicate with" Jones, and that he could "advise" Jones as he saw fit. Id. at Page ID #2057. The court reiterated that it could not "stop [John] from communicating with [Jones] and giving him advice." Id. It added, however, that it could stop John from sending Jones draft pleadings and interfering with Billak's representation of Jones. Id. at Page ID #2062-63. The court continued:
I'm making this call simply as a courtesy. Rather than issue some sort of order seeking other action by this Court . . . or perhaps even by our chief judge based upon your conduct, this is a courtesy call, in essence encouraging you to cease and desist from interfering with this case, this defendant's rights.
Id. at Page ID #2063. The court then emphasized that it had other, harsher options:
The other option for me would be to issue a show cause order as to why you should not be held in contempt for either attempting to practice law or engaging in some other conduct.
Id. at Page ID #2067.
The court's analysis of the situation changed, however, when John alerted the court that he had previously been a practicing lawyer. At that point, the court told John: if you wish to represent the defendant, you are not licensed to practice in Ohio ....
In order to participate in this case-if you want to represent the defendant, then you can file a pro hac vice .... You can't have it both ways. You cannot be sitting on the sidelines giving the defendant legal advice. When you submit draft motions to the defendant, there is no other way to characterize it, in my humble opinion, than practicing law or attempting to practice law.
Id. at Page ID #2070-71. Beyond warning John that he might be engaging in the unauthorized practice of law, the court also informed John that his draft motion was "patently not well-taken" and that he was leading Jones down a "primrose path." Id. at Page ID #2072. Shortly after the court issued those warnings, John admitted that he "was either disbarred or [] resigned" from the California State Bar.[3] Id. at Page ID #2074-75.
The court then spoke to Jones directly, warning him against relying on "a lawyer who has been either disbarred or resigned from the California Bar who couldn't practice in this Court if he wanted to." Id. at Page ID #2075. After issuing that warning, the court told John that it "strongly encourage[d him] to stop interfering in Mr. Jones's representation" and that he was "not licensed" and "not permitted to practice law." Id. at Page ID #2075-76 (emphasis added). The court recommended that John speak with an attorney regarding his actions and his potential legal liability.
After the court ended the telephone call with John, it spoke to...
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