UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BOBBY JACK JENKINS, Defendant - Appellant. No. 12-8089 (D.C. No. 1:12-CR -00061-NDF-1) (D. Wyo.)

ORDER AND JUDGMENT *

Before GORSUCH, HOLLOWAY, and HOLMES, Circuit Judges.

Bobby Jack Jenkins, the Defe ndant - Appellant, made a series of threatening and obscene telephone calls to government offices in Wyoming. He was arrested and charged with three counts of making interstate communications with the intent to injure, in violation of 18 U.S.C. § 875(c). A jury convicted him on two of the counts, and the district court sentenced him to fifty-one months in prison.

 After examining the briefs and appellate record, this panel has decided unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value cons istent with Fed. R. Ap p. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 7, 2014
Elisabeth A. Shumaker Clerk of Court-2- Mr. Jenkins now challenges his conviction, arguing the district court committed two serious errors. First, he argues the dist rict court abused its discretion by permitting him to participate as “co-counsel” at his trial. He says the district court knew he was not mentally competent to act in such a capaci ty but let him proceed anyway. Second, he claims the district court erred in allowing the introduction of his cellular-telephone records into evid ence without a proper foundation for their admission at trial. Because those records were crucial in establishing a key element of the offense charged—the making of a communication across state lines—M r. Jenkins contends the district court’s alleged error in admitting them require s reversal of his conviction. Our jurisdiction arises unde r 28 U.S.C. § 1291, and we AFFIRM the judgment of the district court in all respects. I. BACKGROUND A. Factual Background At the beginning of 2012, Bobb y Jack Jenkins was an angr y man. He was angry at the federal government. He was angry at the State of Wyoming. Most of all, he was angry about how he was supposed ly being unjustly de nied payment of disability benefits. For this, Mr. Jenkins specifi cally blamed the government agencies responsible for processing and appr oving his disability claim: the federa l Social Security Administration (SSA) and its state-government counterpar t in Wyoming, the Office of Disability Determination Services (DDS). The trouble leading to Mr. Jenkins’s arrest in this case had its start on January 10, 2012, when he left a voicem ail message with an SSA employee in Wyoming. In the-3- message, he darkly suggested that “someone is going to come to your office and start shooting people” if they did not “get their act toge ther.” R. Vol. 2, at 30. As a result of this telephone call, Mr. Jenkins was banne d from conducting busine ss in person at any SSA office. On February 6, 2012, Mr. Jenkins called the DDS office in Cheyenne, Wyoming and asked that someone call him back about his disability claim. He left his cellular-telephone number as his c ontact number in his message. Later that afternoon, DDS Deputy Admi nistrator Jeff Graham returned Mr. Jenkins’s telephone call. Mr. Jenkins beca me agitated during th e ensuing conversation with Mr. Graham and began making profanity-lade n threats, the gist of which was that he was going to take his rifle and start shooting government employees. He then hung up on Mr. Graham, who promptly repo rted the threats to the auth orities. But Mr. Jenkins was not finished with his tirade. Around 8:30 that night, Mr. Jenkins called the Cheyenne DDS office and left two more voicemail messa ges in fairly rapid succession. At the beginning of each call, M r. Jenkins identified himself by name , date of birth, and Social Security number. Mr. Jenkins’s first message consisted of a fu sillade of colorful and violent threats, which, as before, mainly involved his assuranc es that he was going to shoot government employees in government offi ces, along with anyone in la w enforcement who tried to stand in his way. In the message, Mr. Jenkins hinted that he was currently somewhere in the Sawtooth Wilderness, located in Idaho, but that he would “find a way” to get to Wyoming to make good on his threats. Id. at 31-32. Apparently, the second message left by Mr. Jenkins also contained similar thre ats, but the call was broken and the sound-4- quality of the voicemail was poor. Owing to Mr . Jenkins’s threats, the DDS office in Cheyenne was closed for the next seve ral days as a security precaution. B. Procedural Background A federal warrant was issued for Mr. Jenkins’s arrest on February 9, 2012. On that same day, the federal district court in Wyoming issued an or der under 18 U.S.C. § 2703(d) to AT&T, Mr. Jenkins’s cellular-service pr ovider, directing the company to produce his telephone records. These records would later be introduced against Mr. Jenkins at trial to prove his threatening phone calls had been made from outside the state of Wyoming and t hus had been transmitted in inters tate commerce. Mr. Jenkins was tracked down and arrested on February 11, 2012 in Livingston, Montana. He was charged by grand-jury indictment with three counts of tran smitting a threatening communication in interstate commerce, in violation of 18 U.S.C. § 875(c). Following his indictment, the district court ordered Mr. Je nkins to undergo a competency evaluation. Th e examining physician determ ined that Mr. Jenkins was competent to proceed to trial. At a competency hearing held before the district court on July 19, 2012, Mr. Jenkins and the government both stipulated to the findings and conclusions contained in the examining physic ian’s report, and the district court found Mr. Jenkins competent to stand trial. About six weeks before his trial was set to begin, Mr. Jenkins filed a handwritten

pro se “Motion for Co-Counsel” w ith the district court. See R. Vol. 1, at 36-43. Although he expressed dissatisfaction with his court-appointed lawyer (along with a rambling litany of other sharply worded grie vances), Mr. Jenkins did not ask to proceed-5- at trial pro se , otherwise waive his right to counsel in any other manner, or expressly ask for new counsel. The district court denied the “Motion for Co-Counsel,” finding that Mr. Jenkins had not stated any legal basis fo r his requested relief and noting that Mr. Jenkins’s court-appointed lawyer was “as ca pable and competent as any counsel that could be appointed to” represent him. Id. at 45. The matter of Mr. Jenkins’s legal represen tation appeared to be settled until, a few days before trial, he mailed a letter to hi s lawyer suggesting he no longer wanted the lawyer to represent him. Raising the issue of the letter at a conference before the districtcourt judge on the morning of trial, Mr. Jenkins’s counsel dul y attempted to withdraw his representation. The district court stated th at it was disinclined to grant the motion but would wait to “hear Mr. Jenkins out on how the relationship is goin g” before making a final ruling. R. Vol. 3, pt. 1, at 80. With Mr. Jenkins present in the courtroom, along with defense and government counsel, the district court then engaged in a thorough colloquy with Mr. Jenkins concerning what, in essence, Mr. Jenkins want ed to do about his legal representation at trial. Mr. Jenkins assured the court that he did not wish to represen t himself. He wanted only to act as “co-counsel” because, as he put it, “I might have some questions I need to ask,” id. at 132, and his participation as co-c ounsel “means I have a voice also,” id. at 131. After carefully outlinin g a protocol whereb y Mr. Jenkins could participate as cocounsel, the district court gran ted his request, with the agr eement that his role at trial would be confined to asking limited follow-up questions afte r his lawyer had finished direct or cross-examination of a witness.-6- The government called five witnesses agains t Mr. Jenkins at trial. Three of the witnesses were SSA or DDS employees thre atened by him; the other two were lawenforcement officers responsibl e for investigating and appreh ending him. Acting as cocounsel, Mr. Jenkins briefly cross-examined three of the witnesses. His active trial participation never extended beyo nd this limited questioning. One of the witnesses, Senior Special Agent Kalv in Boggs of the Federal Protective Service, testified in some detail about Mr . Jenkins’s cellular-tel ephone records, which had been provided to the g overnment by AT&T under cour t order. Counsel for Mr. Jenkins objected to the introduction of th e records, arguing th ere was not a proper foundation for their admiss ion. The district court overrule d the objection, finding that the records fell within the busine ss-records exception to the he arsay rule under Federal Rule of Evidence 803(6). The district court also determined the records were selfauthenticating and properly certified for admission under Federal Rule of Evidence 902(11). With the defense’s objection ove rruled, Agent Boggs explained that the telephone records showed that Mr. Jenkins ’s cellular-telephone calls were actively “pinging” or bouncing off of a cellular tower in the vicin ity of Livingston, Montana during the periods when he was making threat ening calls to the g overnment offices in Wyoming. Mr. Jenkins did not call any witnesses on hi s own behalf, and he did not testify. The jury found Mr. Jenkins guilt y on two of the three counts, 1 and the district court

1 Mr. Jenkins was found no t guilty on the co unt stemming from his January 10, 2012 telephone call to the SSA office in W yoming. He was convicted on the two counts-7- sentenced him to fifty-one months’ imprisonm ent, to be followed by three years of supervised release. Mr. Jenkins timely appealed. II. DISCUSSION On appeal, Mr. Jenkins raises two points of error. First, he argues the district court abused its discretion by a llowing him to act in the role of co-counsel. Second, he contends the district court committed reversib le error by admitting his telephone records without a proper foundation at trial. We asse ss both of Mr. Jenkins’s arguments in turn. Finding neither argument persuasive, we a ffirm for the reasons set forth below. A. Hybrid Representation Mr. Jenkins asked for a hybrid form of repr esentation at trial. In other words, he wished for his defense to be conducted “partly by himself and partly by his attorney[].” United States v. Hill , 526 F.2d 1019, 1024 (10th Ci r. 1975). Mr. Jenkins’s hybrid representation was structured such that he could ask limited follow-up questions of witnesses after his court-a ppointed counsel had conclude d his own examination; he would not play any other active part in pres enting his defense. Mr. Jenkins agreed to these boundaries and operated within them, with out incident, throughout his trial. But, having received the hybrid repr esentation that he requested, Mr. Jenkins now says the district court abused its discretion in granting it. We disagree.

relating to the threats made in his February 6, 2012 calls to the Cheyenne DDS office. The first of these counts arose from his te lephone conversation with Mr. Graham that afternoon; the second, from his first voicemail message to the DDS offi ce left later that night.-8- Although the “hybrid” nature of hybrid representation derives from two distinct constitutionally guaranteed rights—the righ t of self-representation and the right to counsel in criminal ca ses—there is no constitutional right to hybrid representation itself. United States v. Bennett , 539 F.2d 45, 49 (10th Cir. 1976); Hill , 526 F.2d at 1025 (“The Sixth Amendment does not give any indication that hybrid re presentation is a right of constitutional dimensions.”); see also United States v. Treff , 924 F.2d 975, 979 n.6 (10th Cir. 1991) (“It should be note d that a defendant has no right to hybrid representation and a request to proceed in such a manner is not deemed an election to proceed pro se .”). From a constitutional standpoint , hybrid representation is de cidedly less than the sum of its parts. Accordingly, we recognize permission for hybrid representation “as being discretionary with the trial court.” Bennett , 539 F.2d at 49; see also Treff , 924 F.2d at 979 n.6 (“The decision to allow hybrid representation and to limit the defendant's participation in such represen tation is within the discretion of the trial court.”). When reviewing for abuse of discretion, “we will reverse a determinati on only if the court ‘exceeded the bounds of permi ssible choice,’ given the facts and the applicable law in the case at hand.” United States v. McComb , 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United States v. Ortiz , 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). An abuse of discretion is marked by “an arbitrary, capricious, whimsical, or mani festly unreasonable judgment” on the part of the district court. RoDa Drilling Co. v. Siegal , 552 F.3d 1203, 1208 (10th Cir. 2009) (quotation omitted).-9- Mr. Jenkins argues on appeal that the di strict court abused its discretion in granting his request for hybr id representation because, in doing so, it ignored his purportedly obvious mental problems and the harmful effect that those problems would have on his efforts as co-co unsel. According to Mr. Jenkins, the court was “fully aware” that he suffered from “obvious mental deficits th at he displayed both pr ior to the trial, and during the course of the trial.” Appellant’s Br. at 15. For this reason, Mr. Jenkins contends, it was improper for the district c ourt to put him in a position where the jury could become unfairly prejudiced against him due to the supp osedly bizarre behavior he displayed while questioning witnesse s on his own behalf at trial. We think Mr. Jenkins’s contentions are belied by the trial record . Prior to trial, Mr. Jenkins submitted to a co urt-ordered competency ev aluation and, following a hearing, was found comp etent to stand trial. To be su re, the fact that Mr. Jenkins was competent to stand trial is not the same thing as saying he was competent to represent himself, even in the limited capacity contempl ated by the hybrid representation in this

case. See Indiana v. Edwards , 554 U.S. 164, 175 (2008) (cautioning “against the use of a single mental competency stan dard for deciding both (1) whether a defendant who is represented by counsel can proceed to trial a nd (2) whether a defendant who goes to trial must be permitted to represent himself”). That is to say, a criminal defendant may be “found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself.” Id. at 167. But this is not such a case. To begin with, Mr. Jenkins was not asking to represent himself alone at trial, to the exclusion of any assistance from counsel. Nor was counsel-10- imposed on him by the court against his clearl y stated wishes to th e contrary. To the extent that Mr. Jenkins—who had already been found menta lly competent to stand trial— was requesting that the district court allow him to present br ief and discrete portions of his defense without any assistance from counsel, the district court need ed only to satisfy itself that Mr. Jenkins “voluntarily a nd intelligently elect[ed] to do so.” Faretta v. California , 422 U.S. 806, 807 (1975). Here, the district court accomplished this through a meticulous and exhaustive discussion on th e record with Mr. Jenkins about (1) his reasons for, and the implicati ons of, acting as co-counsel, a nd (2) the parameters of his participation in that capacity. The trial r ecord reflects that Mr. Jenkins gave lucid answers and made cogent remarks to the dist rict court throughout their exchange. In short, he understood what he was doi ng, and so did the district court. Mr. Jenkins briefly cross-examined only thre e of the witnesses against him at trial: Carol Russo, the assistant district manager of the SSA office in Cheyenne; Mr. Graham, of the DDS office; and Agent Boggs. His total interaction with the witnesses was minimal and, in all likelihood, could not have totaled more than a couple of minutes out of a trial that lasted three days. See R. Vol. 3, pt. 2, at 37 4 (Mr. Jenkins’s full crossexamination of Ms. Russo); id. at 433-34 (Mr. Jenkins’s full cross-examination of Mr. Graham); id. at 509 (Mr. Jenkins’s full cross-exam ination of Agent Bo ggs). We concede the point to Mr. Jenkins that his line of cro ss-examination—more accurately described as a blend of questions and commentary—probabl y did him no favors with the jury. It could fairly be described as unf ocused and not particularly germ ane to the issues at trial. His statements might have seemed odd or off-pu tting. But that, in itself, is not the stuff-11- of reversible error. Having reviewed the th ree very brief snippets of cross-examination by Mr. Jenkins found in the re cord, we cannot reasonably say that the jury somehow grew irrationally prejudiced ag ainst him because of the ques tions he asked or the manner in which he asked them. 2
We hold the district cour t did not abuse its discreti on in granting Mr. Jenkins’s narrow and limited request for hybrid representati on. And, even if the district court did abuse its discretion in allowing the hybrid representation, we are convinced that any such error was harmless. “A harmless error is on e that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect.” United States v. Resendiz–Patino , 420 F.3d 1177, 1181 (10th Cir. 2005) (quotation omitted). We do not believe that Mr. Jenkins’s participation as co-counsel could have had any substantial influe nce on the outcome in this case. B. The Admissibility of the Cellular-Telephone Records For his second point of e rror, Mr. Jenkins argues the di strict court abused its discretion by admitting his cellular-telephone records into evidence at trial without a proper foundation. The district court pe rmitted the government to authenticate the records at trial by way of a written cer tification and accompanyi ng affidavit from AT&T’s custodian of records. The records in question prov ided information about each call made or received by Mr. Je nkins’s cellular telephone betw een January 9, 2012 (the

2 The district court had also specifically in structed the jury th at “if the defendant chooses to examine witne sses, treat the defendant as you wo uld treat a lawyer in the case. Remember, the defendant’s questions when he ’s acting as co-counsel are not testimony from the defendant.” R. Vol. 3, pt. 2, at 300.-12- day before he first left an ominous voice me ssage with the SSA office in Cheyenne) and February 7, 2012 (the day after he made th e threatening series of calls to the Wyoming DDS office). They included latitudinal and longitudinal information for the cellular towers through which thos e calls were routed. The records were used at trial to show Mr. Jenkins had made the calls to the government offices in Wyoming from somewher e in the vicinity of Livingston, Montana, a town some sixty miles north of the Wyomin g–Montana border. Mr. Jenkins asserts that the telephone records should never have been admitted because they were not introduced through the live testimony of a witness who could vouch for the trustworthiness of their contents. In other words, he argues that the certification from the AT&T records custodian was an inadequate foundation for their admission in this case. We review the district court’s eviden tiary rulings for abuse of discretion. United States v. Ary , 518 F.3d 775, 785 (10th Cir. 2008 ). These rulings “generally are committed to the very broad di scretion of the trial judge, and they may constitute an abuse of discretion only if base d on an erroneous conclusion of law, a clearly erroneous finding of fact or a manife st error in judgment.” United States v. Keck , 643 F.3d 789, 795 (10th Cir. 2011) (quotati on omitted). We give pa rticular deference to the district court’s rulings on the admissibility of hearsay evidence. Id. Even if we determine there was “an erroneous evidentiary ruling, a new trial will be ordered ‘only if the error prejudicially affects a substantial right of a party.’” Id. (quoting Hinds v. Gen. Motors Corp. , 988 F.2d 1039, 1049 (10th Cir. 1993)).-13- The telephone records in this case fell w ithin the business-reco rds exception to the hearsay rule, Federal Rule of Evidence 803(6). Rule 803(6) carves out an exception to the general rule against hearsa y for records “kept in the cour se of a regularly conducted activity of a business . . . [if] making the record was a regular practice of that activity.” “The rationale behind this exception is th at business records ‘have a high degree of reliability because businesse s have incentives to keep accurate records.’” Ary , 518 F.3d at 786 (quoting United States v. Gwathney , 465 F.3d 1133, 1140 (10th Cir. 2006)). In order to be admissible under Rule 803(6)’ s business-records exception, the proposed document must (1) have been prepar ed in the normal course of business; (2) have been made at or near th e time of the events record ed; (3) be based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) indicate the sources, methods and circumstances by whic h the record was made were trustworthy. Id. Rule 803(6) further prov ides that these prerequis ites for admissibility may be satisfied “by a certification th at complies with [Federal Ru le of Evidence] 902(11).” Working hand in glove with Rule 803(6)’s business-records exception, Rule 902(11) “permits a party to establis h the authenticity of documents as domestic business records through a declaration from th e records' custodian.” United States v. Lewis , 594 F.3d 1270, 1278 (10th Cir. 2010). This is subject to the requirement that the proponent “must give an adverse party reasonable written notic e of the intent to offer the record—and-14- must make the record and certification availa ble for inspection—so that the party has a fair opportunity to challenge th em.” Fed. R. Evid. 902(11). In this case, the government argues that the certification and affidavit made by AT&T’s custodian of records fully complied with the require ments of Rule 902(11) and thus provided the necessary foundation fo r the admission of Mr. Jenkins’s telephone records as business records und er Rule 803(6). Mr. Jenkins, however, claims he was “caught off guard by the use of the certification” because he had anticipated the government would present in-person courtr oom testimony from an AT&T representative in order to authenticate the records. Appellant’s Br. at 18 . To be fair to Mr. Jenkins, it seems the government had indeed initially pl anned on using such a witness, but the witness was unavailable at the time of trial. Because of this, the government instead relied on the certification and affidavit obtaine d from the AT&T custodian of records to lay the foundation for ad mitting the documents. We conclude that there was nothing impr oper whatsoever about the government’s use of the certification procedure expressly al lowed by Rule 902(11). The contents of the records themselves had already been furnished to Mr. Jenkins in the course of discovery; there was no ambush at trial. Here, th e government scrupulously followed Rule 902(11)’s certification mechanis m in reliably laying the foundation for the admission of Mr. Jenkins’s telephone records under Rule 803(6). 3

3 Mr. Jenkins seemed to argu e before the district court that the certification and affidavit were themselves unreliable because those documents had be en prepared for use at trial. See R. Vol. 3, pt. 2, at 476-77. To th e extent Mr. Jenkins was suggesting that cellular-telephone records and ac companying Rule 902(11) certifications are testimonial-15- As a final argument, Mr. Jenkins claims that Agent Boggs was not qualified to testify about the AT&T records and that the records should have been held inadmissible for that reason. The problem with this argument is that Agent Boggs’s testimony had nothing to do with authenticating the re cords, establishing their accuracy and trustworthiness, or otherwise laying the found ation for their admissi on. Agent Boggs was called to testify about law enfo rcement’s use of the telephon e records in determining Mr. Jenkins’s location following his th reatening calls to the DDS o ffice on February 6, 2012. His testimony played no part in authenticating the reco rds or establishing their trustworthiness; those requirements were satis fied by the government’s submission of the certification and affidavit un der Rule 902(11). And, although Mr. Jenkins could conceivably have raised an objection at tria l as to whether Agent Boggs was qualified to interpret the actual contents of the telephone records for the jury, he did not do so—nor does he raise that argument on appeal. Agent Boggs’s testimony had nothing to do with laying the foundation for the records’ admission. That aim was accomp lished through the government’s entirely proper use of the certificate and affidavit obtai ned from AT&T’s custodian of records. In sum, Mr. Jenkins’s claim of error on this point is without merit. III. CONCLUSION in nature and therefore imp licate the Sixth Amendment’s Confrontation Clause, that argument has been forecl osed by our decision in United States v. Yeley–Davis , 632 F.3d 673 (10th Cir. 2011). In Yeley–Davis , we plainly held that “c ertificates of authenticity presented under Rule 902(11 ) are not testimonial.” Id. at 680. The purpose of the certification is “merely to authenticate the cell phone records—and not to establish or prove some fact at trial.” Id. At any rate, Mr. Jenkins does not raise a Confrontation Clause argument on appeal.-16- For the foregoing reasons, the judgment of th e district court is AFFIRMED in all respects.

Entered for the Court

William J. Holloway, Jr. Circuit Judge