United States v. Pryor

• Decision Date: 22 November 2016
• Docket Number: No. 15-2123,15-2123
• Citation: 842 F.3d 441
• Parties: United States of America, Plaintiff–Appellee, v. Jermaine Benjamin Pryor, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

842 F.3d 441

United States of America, Plaintiff–Appellee,

v.Jermaine Benjamin Pryor, Defendant–Appellant.

No. 15-2123

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 22, 2016

ON BRIEF: Steven D. Jaeger, The Jaeger Firm, PLLC, Erlanger, Kentucky, for Appellant. B. Rene Shekmer, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: GUY, BOGGS, and GRIFFIN, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Before us is a case involving the invocation of the right to self-representation, voice-identification testimony, and a sentencing enhancement for possession of a firearm in furtherance of a drug crime. Because we find no error below, we affirm the judgment of the district court.

I

Jermaine Pryor (who calls himself Al Gomono Bey)¹ was charged with conspiring with three other men to distribute heroin between 2012 and 2014. The conspiracy operated by having interested persons call a phone number to speak to "Daffy Duck" and negotiate a purchase of heroin. "Daffy" (allegedly Pryor) would then give a location for the proposed transaction and inform members of the conspiracy of what to bring and where to bring it. Deputy Chauncey Shattuck listened in on four telephone calls between "Daffy" (now under the nom de guerre "Taz") and an informant in January and February 2014 regarding buying heroin. Following a drug purchase on February 20 by the informant, police maintained surveillance on the residence where the sale occurred. While a search warrant was being drafted, a Dodge Magnum arrived and Pryor entered the house. Police observed Pryor through the window as he picked up money and placed it into a bag, and then returned to his car and left. Deputy Michael Leasher followed the car from the house until it was stopped by an Ingham County sergeant and deputy for traffic violations. Pryor was ordered out of the vehicle and the officers observed that he had a .45–caliber Glock pistol holstered inside his waistband. Pryor informed the officers that he had a proper license for the weapon, which they verified. After he was handcuffed and patted down, the police discovered wads of money in his pockets. Pryor was arrested for his connection to the drug transaction. The police later found in the car a cell phone with a disconnected battery. They reconnected the battery and turned the phone on. Shattuck called the number for Taz and the phone rang.

Pryor made thirty-three phone calls while in jail, which were recorded. In addition, Pryor had a recorded virtual meeting with a visitor via video feed. Pryor was released, and Shattuck received disks from Detective Brad Delaney that Delaney stated contained recordings of the phone calls from Pryor and the twenty-minute video recording.

Shattuck listened to these phone calls and the video recording (a total of about four hours of conversation) in preparation for further investigation. In watching the video, Shattuck found that Pryor's voice matched Taz's voice that he had heard earlier, and that the voices on the recordings were the same as that of the prisoner in the video. In late April 2014, Taz called Shattuck and the two spoke briefly. Shattuck then made four controlled drug purchases in July 2014, each time contacting Taz over the phone and discussing the purchase details.

Officer Daniel Batora was also involved in the investigation of the conspiracy. Batora listened to a twenty-minute recording of Pryor's conversation in the last week of April 2014 prior to placing a call on May 1 to a line thought to be one of Taz's ever-changing phone numbers. Batora identified the man on the other end of the line as Pryor and arranged a purchase of heroin. He made a total of three phone calls and purchases of heroin in May 2014.

Pryor was arrested again on December 2, 2014, and brought before a magistrate judge. There, he appeared to object to the jurisdiction of the court, announcing that he had "no contracts with the United States corporation or anybody in this courtroom," and repeatedly ignored the magistrate judge's requests to be quiet. The court adjourned and brought him back the next day to complete his initial appearance. At this appearance, the court asked Geoffrey Upshaw to appear as standby counsel for Pryor and informed Pryor that Upshaw was "here if you wish to consult with him, but he d[id] not yet" represent him. Pryor responded that he was "never going to consult with" Upshaw. He then began to object to the jurisdiction of the court, explaining that he was "not a part of your society.... I am a moor, and your laws d[o]n't apply to me."² The magistrate judge informed Pryor of his right to the assistance of counsel, and that counsel would be appointed at no cost if he could not afford representation. Pryor immediately stated "I don't consent to that." When the magistrate judge asked if he understood that counsel could be appointed for him, Pryor replied that he did not. The magistrate judge then inquired if Pryor was asking the court to appoint counsel, and Pryor denied consent to the court's jurisdiction. The magistrate judge repeated his question, and Pryor answered "No. I don't have—no, I don't consent to anything." When asked if he intended to hire his own attorney, Pryor indicated that he would not: "Why would I—I am not a minor and no one ... will be talking for me." Again, the magistrate judge repeated his question, and Pryor repeated his answer, saying "I'm not a minor and I don't need anyone to talk for me." After being read the charges against him and asked if he understood them, Pryor said he did not. He repeated his denial of the court's jurisdiction ("I'm not a part of your society. Your laws d[o]n't apply to me."). Citing Pryor's "bizarre [ ]" behavior, the magistrate judge ordered that Pryor be referred to the Bureau of Prisons for a competency evaluation.

At the competency hearing on March 16, 2015, Pryor objected to being in court "under direct duress and coercion," but indicated that he was appearing "in propria persona ." The magistrate judge observed that he had now appointed Upshaw as Pryor's counsel, at least for the duration of the competency hearing, and Upshaw noted that Pryor did not wish for him to speak on his behalf. Pryor objected, but was warned that he would be removed from the courtroom if he continued to speak out of turn. Based on the competency report, the court found that Pryor was competent to proceed in his case. When the court was advising Pryor of his rights, Pryor repeatedly answered questions with questions of his own. The court stated: "If you are either unable or unwilling to answer my questions, I will have no alternative but to keep Mr. Upshaw on as counsel. You cannot represent yourself if you will not cooperate with the Court in answering questions." The court directly asked Pryor, "do you wish to represent yourself or do you wish to have counsel represent you?" Pryor answered "I will be myself" and again challenged the court's jurisdiction. The court repeated the question, and Pryor asked if the judge was offering him a contract.³ The court repeated itself one final time and warned that if Pryor did not answer the question, "I'm going to simply retain Mr. Upshaw as your attorney." Pryor objected to being called "Mr. Pryor," and the court appointed Upshaw as counsel, to which Pryor immediately and repeatedly objected.

Pryor continued to object throughout the proceeding to the court or Upshaw taking any action on his behalf. The magistrate judge announced that any further objections would result in Pryor being removed from the courtroom and added, "If you're represented by counsel, that's your doing. You have no one to blame but yourself for the situation that you're in," explaining that Pryor would not answer his questions and as such he could no longer "speak for [him]self." But when the court asked Upshaw whether he had anything to offer the court, Pryor objected again: "I am not a minor. He will not speak for me." Pryor was escorted out of the courtroom.

The next day at the initial pretrial conference, Pryor again continued his objections to Upshaw's representation of him. When told by the court that he was now represented by counsel, Pryor objected: "I have no contracts with this man.... I am here in propria persona ...." The magistrate judge informed Pryor that if he spoke to the court directly rather than through counsel, he would be removed from the courtroom. Despite this warning, Pryor twice objected to Upshaw's representation. On March 19, Pryor submitted an "Affidavit of truth" to the court, disclaiming the court's jurisdiction, announcing that he had no contracts with any corporation or the United States of America, and stating "Geoffrey Upshaw will not represent me." The document was rejected as not having come through appointed counsel. Pryor continued to submit affidavits asserting his desire to appear in propria persona and contesting the court's jurisdiction. After a further message to the court asserting his desire to proceed in propria persona (among other arguments), the court entered an order to automatically reject letters from Pryor and "advise[d] and recommend[ed] that Defendant Pryor consult with his counsel regarding this and all other aspects of the case." Pryor continued to send letters objecting to deprivation of his ability to be in propria persona , jurisdiction, and other matters.

Just over two months later at the final pretrial conference of May 20, 2015, now before Chief Judge Robert Jonker, Pryor continued his objections to Upshaw acting as his counsel, among other objections. He interrupted the court on numerous occasions to raise his objections, which were often framed in legalistic—albeit unorthodox—terms. His appointed counsel challenged the proposed voice identification by Batora and Shattuck on the basis that proper foundation could not be established and the officers were basing their identification on memory alone, rather than on recordings that...