United States v. Sanders

• Decision Date: 27 February 2015
• Docket Number: No. 11–3067.,11–3067.
• Parties: UNITED STATES of America, Appellee v. Heyward Carzell SANDERS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

778 F.3d 1042

UNITED STATES of America, Appellee

v.Heyward Carzell SANDERS, Appellant.

No. 11–3067.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 26, 2014.

Decided Feb. 27, 2015.

Appeal from the United States District Court for the District of Columbia, (No. 1:10–cr–00165–4).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Stephen F. Rickard, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Kenneth F. Whitted, and David Kent, Assistant U.S. Attorneys.

Before: GARLAND, Chief Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge:

Heyward Sanders appeals his conviction for conspiracy to distribute heroin. He contends that the trial court erred by foreclosing a request for hybrid legal representation, by denying his request for a multiple conspiracies jury instruction, and by failing to give an adequate response to a note from the jury. For the reasons set forth below, we affirm the judgment of the district court.

I

In November 2008, law enforcement authorities began to investigate narcotics activity in and around Potomac Gardens, a housing project in the District of Columbia. In August 2009, agents obtained a wiretap on a telephone owned by Matthew Joseph, a former Potomac Gardens resident known to his associates as Fat Mack. The agents learned that Joseph coordinated a network of people distributing heroin, suboxone pills, and crack cocaine. Among his associates were “lieutenants” who helped him procure narcotics and prepare them for distribution, and “runners” who sold narcotics on the street.¹

In October 2009, a mutual acquaintance described appellant Heyward Sanders to Joseph as a potential supplier of high-quality heroin. Joseph received an initial test sample, which his associates described as “some of the best heroin that they had around that area in a long time.” 4/28 Trial Tr. 44. After a night of gambling, Joseph asked his acquaintance to set up a deal with Sanders, and the three of them met at a shopping center in Greenbelt, Maryland on October 10. Joseph purchased 200 grams of heroin from Sanders for $15,000.

After this first transaction, Joseph dealt directly with Sanders. The following day, Sanders warned Joseph that he (Sanders) had a “lot of eyes” on him, but he agreed to meet Joseph in an alley behind a school near Potomac Gardens. App. 212–14; see 4/28 Trial Tr. 61–63. Joseph purchased heroin from Sanders five more times. Twice, he purchased 100 grams from Sanders at the Greenbelt shopping center, paying $7500 on the first occasion and $7000 on the second. Later in October, Sanders began obtaining heroin from a new source and provided Joseph with test samples. On October 27, Joseph told Sanders he was out of heroin, and the two agreed to meet near the same school. There, Sanders sold Joseph six grams of heroin, “fronting” the drugs on credit. 4/28 Trial Tr. 47. Joseph later paid $100 per gram, higher than the usual price because the drugs were from Sanders' personal supply. That evening, Joseph told Sanders that the heroin was weaker than the initial batch.

The wiretap on Joseph's telephone recorded a number of conversations with Sanders in late October and November. On an unknown date during that period, Joseph and Sanders again met near Potomac Gardens, and Joseph bought another 50 grams of heroin for $4000. In their final transaction in December 2009, Joseph purchased 25 grams for $2250. Joseph testified at trial that the quality of Sanders' heroin had been deteriorating over time, and that he stopped purchasing heroin from Sanders because Sanders no longer had any available.

Joseph's telephone conversations revealed that Sanders was not his only heroin supplier. Around the same time, he was also dealing with another supplier, Joseph Richardson. In a December 10 transaction monitored by law enforcement, Joseph purchased 50 grams of heroin from Richardson for $3500. Police officers stopped Richardson after the sale and seized the cash, prompting Richardson to call Joseph to complain.

In late December 2009, agents obtained a wiretap on Sanders' phone. On March 15, 2010, when he was no longer selling heroin to Joseph, Sanders had a conversation with James Leak, with whom Sanders had also made heroin deals. Leak mentioned that a man named “Fat somebody” had been “doing real good for the last two years” in Potomac Gardens. App. 165. Sanders, aware of Joseph's nickname, responded, “You talking about Fat Mack?” Id. When Leak continued describing Fat Mack's success in Potomac Gardens, Sanders twice told Leak that Fat Mack “use[d] to purchase from you.” Id. at 166.

Officers searched Sanders' house on May 13, 2010. On June 15, a grand jury returned an indictment against Sanders and eight others. Sanders was named only in Count One, which charged all nine codefendants with conspiring to distribute and possess with intent to distribute cocaine, 50 grams or more of crack cocaine, and 100 grams or more of heroin. All eight of Sanders' codefendants pled guilty, and Joseph testified as a cooperating witness at Sanders' trial. Sanders represented himself at trial, with standby counsel available. He did not testify and did not present evidence in his defense.

The jury convicted Sanders of conspiring to distribute and possess with intent to distribute 100 grams or more of heroin; it acquitted him as to cocaine and crack cocaine. Sanders raises three principal challenges on appeal, to which we now turn.

II

Sanders first contends that the district court erred by sua sponte instructing him that he did not have a right to hybrid representation—an arrangement in which he could represent himself while also allowing his counsel to participate in the trial.

Shortly before trial, Sanders expressed a desire to represent himself, and his pretrialcounsel accordingly filed a motion to withdraw. At the motions hearing, the district court “strongly urge[d]” Sanders to allow his lawyer to continue representing him, without success. Supp.App. 115. Among other things, the court told Sanders that, if he represented himself, he could get help from standby counsel. But under that arrangement, the court said, such counsel “could not actively participate in the trial,” and Sanders would be responsible for organizing his defense, picking a jury, calling witnesses, and making arguments. Id. at 94–95. After asking again whether Sanders wished to waive his right to counsel, the court found that Sanders had “knowingly and voluntarily” waived that right. Id. at 117. It then reiterated to Sanders the responsibilities of self-representation. It advised Sanders that his counsel would serve on a “standby” basis, that Sanders would be able to consult with his standby counsel on “basic courtroom mechanics and routine clerical procedural matters,” but that Sanders would have to make motions, argue issues, select the jury, question witnesses, and make objections himself. Id. at 118–19. Addressing Sanders, the district court said: “You do not have the right to a hybrid representation by which you represent yourself and ask [your counsel] also to represent you and make some arguments for you. You cannot do that.” Id. at 118. Neither Sanders nor his pretrial counsel objected during the hearing.

Sanders' standby counsel remained available throughout the trial, and, at least twice, the district court ensured that Sanders had consulted with counsel on particular issues or advised him to do so. See 4/28 Trial Tr. 187–88; 5/3 Trial Tr. 6–7. Sanders never requested or expressed an interest in hybrid representation. On appeal, Sanders claims that the district court “erred in informing Sanders he had no right to request hybrid representation under any circumstances”—“no right even to ask the district court in its discretion to allow counsel to represent him in part.” Sanders Br. 26 (emphasis added).

Because Sanders did not object to the district court's statements, and never indicated an interest in hybrid representation, we review his claim for plain error only. Fed.R.Crim.P. 52(b). This means that Sanders has the burden of showing there is “ ‘(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Simpson, 430 F.3d 1177, 1183 (D.C.Cir.2005) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal citations and quotation marks omitted)). In most cases, to affect the defendant's substantial rights, “ ‘the error must have been prejudicial: It must have affected the outcome of the district court proceedings.’ ” Id. at 1183–84 (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see United States v. Williams, 773 F.3d 98, 105 (D.C.Cir.2014).

But the standard of review does not matter here because Sanders' claim fails at the first step: there was no error at all. The district court did not instruct Sanders that he had no right “even to ask” for hybrid representation. Instead, it simply told him that he did “not have the right to a hybrid representation.” Supp.App. 118. That instruction correctly stated the law. See McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (“Faretta [ v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the case establishing the right of a defendantto conduct his own defense,] does not require a trial judge to permit ‘hybrid’ representation....”...