United States v. Simpson, No. 15-1295

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBACHARACH, Circuit Judge.
Citation845 F.3d 1039
Parties UNITED STATES of America, Plaintiff-Appellee, v. Michael Eugene SIMPSON, Defendant-Appellant.
Docket NumberNo. 15-1295
Decision Date10 January 2017

845 F.3d 1039

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Eugene SIMPSON, Defendant-Appellant.

No. 15-1295

United States Court of Appeals, Tenth Circuit.

Filed January 10, 2017


Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado, for Appellant Michael Eugene Simpson.

Robert Mark Russel, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the briefs), Denver, Colorado for Appellee United States of America.

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

Based on a confidential informant's report that Mr. Simpson had drugs and guns, law enforcement officers obtained a search warrant for his house. The search revealed cocaine, firearms, and ammunition, and a jury later found Mr. Simpson guilty on 13 counts:

• Count 1: Possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) (2012) ;

• Count 2: Possession of a shotgun and ammunition by a felon, 18 U.S.C. § 922(g)(1) (2012) ;

• Counts 3-4: Possession of handguns and ammunition by a felon, 18 U.S.C. § 922(g)(1) (2012) ;

• Count 5: Possession of an unregistered shotgun, 26 U.S.C. § 5861(d) (2012) ;

• Counts 7-14: Possession of ammunition by a felon, 18 U.S.C. § 922(g)(1) (2012).

The district court imposed concurrent sentences of 240 months' imprisonment for Count 1 and 120 months' imprisonment for the remaining counts.

Mr. Simpson argues that we should reverse the conviction or, alternatively, the sentence. We affirm the conviction on Count 1 (possession of cocaine with intent to distribute) and Counts 2 and 5 (possession of an unregistered shotgun and ammunition). But we reverse the conviction on the other counts based on plain error in

845 F.3d 1044

the jury instructions, remanding for a new trial. Finally, we reject Mr. Simpson's challenge to the sentence on Counts 1, 2, and 5.

I. Mr. Simpson's Appellate Arguments and Our Conclusions

Mr. Simpson raises four challenges to his conviction and one challenge to his sentence.

First , Mr. Simpson asserts that he should have been allowed to represent himself at trial. We reject this assertion.

At a hearing on the morning of trial, Mr. Simpson presented two motions: a written motion to represent himself and an oral motion to continue the trial. The district court asked Mr. Simpson if he was prepared to represent himself without a continuance, and he responded that he was not. From this exchange, the district court apparently understood that Mr. Simpson was not asking to represent himself if the trial were to proceed that morning. Based on this apparent understanding, the court denied the motion for self-representation, reasoning that it had been untimely. Mr. Simpson contends that his self-representation motion was not conditioned on a continuance and was timely.

We conclude that the court did not violate Mr. Simpson's right to self-representation. After denying a continuance, the district court did not address the possibility that Mr. Simpson might want to represent himself at that morning's trial. But if Mr. Simpson wanted to do that, he needed to make his desire clear. He didn't, for he never told the district court whether his self-representation motion was (1) a stand-alone motion or (2) conditioned on the grant of a continuance. As a result, the district court did not err in treating the motion for self-representation as conditioned on the grant of a continuance.

The district court also properly ruled that Mr. Simpson's motion for self-representation had been untimely. In the district court's view, Mr. Simpson knowingly waited until the beginning of trial to seek a continuance, using the request as a delay tactic. This reasoning was permissible in light of Mr. Simpson's previous request for a continuance immediately before the trial was to begin.

Second , Mr. Simpson challenges the denial of the request for a continuance. We reject this challenge. The court had already granted one last-minute continuance to Mr. Simpson and had no obligation to grant a second last-minute request.

Third , Mr. Simpson challenges the handling of a discovery request. The request stemmed from the government's installation of a pole camera outside of Mr. Simpson's house prior to the execution of the search warrant. When Mr. Simpson learned of the camera, he asked for the footage, but the government answered that the footage was no longer retrievable because the camera's hard drive had crashed. Mr. Simpson then asked to conduct his own inspection of the hard drive, but the district court denied the request. Mr. Simpson challenges the denial of that request, arguing that denial of this request violated the Federal Rules of Criminal Procedure and the U.S. Constitution. We reject these challenges.

Under the federal rules, Mr. Simpson would be entitled to discovery only if he had made a prima facie showing that the hard drive would help his defense. In his discovery motion, he tried to meet this standard by suggesting that the hard drive might support a motion to suppress the search warrant. In the motion, Mr. Simpson explained that the footage might be recoverable from the hard drive and, if so, the footage might show that the police informant had lied to law enforcement.

845 F.3d 1045

But even if these possibilities materialized, they would not have justified suppression of evidence: The movant cannot obtain suppression of evidence by challenging the informant's truthfulness; instead, the movant must show that the police affiant knowingly or recklessly submitted false information. Thus, Mr. Simpson's discovery motion provided no reason to believe that Mr. Simpson could satisfy his burden on a motion to suppress.

We also reject Mr. Simpson's constitutional challenges. Mr. Simpson did not make these challenges in district court; thus, we review the constitutional challenges only for plain error. Any possible error would not be plain, for we cannot easily infer that the hard drive would have supported Mr. Simpson's defense or that the police had acted in bad faith.

Fourth , Mr. Simpson challenges a jury instruction that defined "constructive possession." As Mr. Simpson argues, the instruction failed to include an element of constructive possession: that the defendant had the "intent" to exercise dominion or control over the guns, ammunition, or drugs. This challenge was not raised in district court; thus, we apply the plain-error standard.

We reject this challenge as it pertains to Counts 1, 2, and 5. On Count 1, the jury found Mr. Simpson guilty of possession with intent to distribute cocaine. On Counts 2 and 5, the jury was presented with uncontroverted evidence that Mr. Simpson had held a loaded shotgun and had tried to sell it. Thus, for Counts 1, 2, and 5, the omission of "intent" from the jury instruction did not result in prejudice, which forecloses reversal under the plain-error standard.

For the remaining counts, however, we agree with Mr. Simpson. The jury instruction constituted an obvious error that was reasonably likely to create prejudice and to seriously affect the fairness, integrity, or public reputation of the judicial proceedings. As a result, we reverse the conviction on these counts and remand for a new trial.

Fifth , Mr. Simpson contends that the district court erred in increasing the sentence based on Sentencing Guideline § 3C1.2, "Reckless Endangerment During Flight." According to Mr. Simpson, he was sleeping in his vehicle when police surrounded him and ordered him to show his hands. Rather than comply, Mr. Simpson started his vehicle and rammed a police vehicle parked behind him, leading the district court to find reckless endangerment of the police.

Mr. Simpson argues that this conduct was not reckless because he reacted instinctively, having just been awoken by individuals mistakenly thought to be assailants. In our view, the district court did not clearly err in finding that Mr. Simpson had known that he was surrounded by police. As a result, the district court did not err in applying § 3C1.2 to determine Mr. Simpson's sentence.

II. The Right to Self-Representation

Defendants must clearly assert their constitutional right to self-representation in order to invoke this right. Thus, if Mr. Simpson wanted to represent himself even without a continuance, he needed to make clear that his self-representation motion was not conditioned on the grant of a continuance. But Mr. Simpson did not make that intent clear.

Instead, Mr. Simpson appeared to package together his requests for self-representation and a continuance. In addressing these requests, the district court reasonably found that Mr. Simpson was seeking self-representation as a delay tactic. This

845 F.3d 1046

finding fell within the district court's discretion, and the district court did not err in denying Mr. Simpson's request to represent himself.

A. The Sixth Amendment entitles criminal defendants to counsel and self-representation, but these rights lie in tension with one another.

The Sixth Amendment provides criminal...

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52 practice notes
  • United States v. Nissen, CR 19-0077 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 19, 2021
    ...is timely if it is made before the jury is impaneled, unless it is a tactic to secure delay.'” United States v. Simpson, 845 F.3d 1039, 1053 (10th Cir. 2017)(quoting United States v. Tucker, 451 F.3d 1176, 1181 (10th Cir. 2006)). Whether such a motion manifests “dilatory intent, ” turns on ......
  • United States v. Muhtorov, 18-1366
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2021
    ...Cir. 2017) (abuse of discretion standard applies to the denial of a motion for discovery in a criminal case); United States v. Simpson, 845 F.3d 1039, 1056 (10th Cir. 2017) (abuse of discretion standard applies to denial of Rule 16 discovery motion); Apperson, 441 F.3d at 1193 (abuse of dis......
  • United States v. Hansen, No. 17-4159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 15, 2019
    ..., 487 U.S. at 298, 108 S.Ct. 2389 )."[W]e ‘indulge in every reasonable presumption against waiver.’ " United States v. Simpson , 845 F.3d 1039, 1046 (10th Cir.) (quoting Brewer v. Williams , 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) ), cert. denied , ––– U.S. ––––, 138 S. Ct. ......
  • United States v. Nissen, CR 19-0077 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 19, 2021
    ...is timely if it is made before the jury is impaneled, unless it is a tactic to secure delay.’ " United States v. Simpson, 845 F.3d 1039, 1053 (10th Cir. 2017) (quoting United States v. Tucker, 451 F.3d 1176, 1181 (10th Cir. 2006) ). Whether such a 555 F.Supp.3d 1198 motion manifests "dilato......
  • Request a trial to view additional results
52 cases
  • United States v. Nissen, CR 19-0077 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 19, 2021
    ...is timely if it is made before the jury is impaneled, unless it is a tactic to secure delay.'” United States v. Simpson, 845 F.3d 1039, 1053 (10th Cir. 2017)(quoting United States v. Tucker, 451 F.3d 1176, 1181 (10th Cir. 2006)). Whether such a motion manifests “dilatory intent, ” turns on ......
  • United States v. Muhtorov, 18-1366
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2021
    ...Cir. 2017) (abuse of discretion standard applies to the denial of a motion for discovery in a criminal case); United States v. Simpson, 845 F.3d 1039, 1056 (10th Cir. 2017) (abuse of discretion standard applies to denial of Rule 16 discovery motion); Apperson, 441 F.3d at 1193 (abuse of dis......
  • United States v. Hansen, No. 17-4159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 15, 2019
    ..., 487 U.S. at 298, 108 S.Ct. 2389 )."[W]e ‘indulge in every reasonable presumption against waiver.’ " United States v. Simpson , 845 F.3d 1039, 1046 (10th Cir.) (quoting Brewer v. Williams , 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) ), cert. denied , ––– U.S. ––––, 138 S. Ct. ......
  • United States v. Nissen, CR 19-0077 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 19, 2021
    ...is timely if it is made before the jury is impaneled, unless it is a tactic to secure delay.’ " United States v. Simpson, 845 F.3d 1039, 1053 (10th Cir. 2017) (quoting United States v. Tucker, 451 F.3d 1176, 1181 (10th Cir. 2006) ). Whether such a 555 F.Supp.3d 1198 motion manifests "dilato......
  • Request a trial to view additional results

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