FILED

United States Court of Appeals

Tenth Circuit

June 6, 2017

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRETT J. WILLIAMSON,

Defendant - Appellant.

No. 15-3147

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 2:13-CR-20011-KHV)

Melody Brannon, Kansas Federal Public Defender, Topeka, Kansas, for

Appellant.

Carrie N. Capwell, Assistant United States Attorney (Barry R. Grissom, United

States Attorney, with her on the brief), Office of the United States Attorney,

Kansas City, Kansas, for Appellee.

Before TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.

TYMKOVICH, Chief Judge.

Brett Williamson was charged with and convicted of various child

pornography offenses. Prior to trial, it came to light that his defense counsel and
the prosecutor trying the case had a history together: they were divorced and

shared custody of their child. For that and numerous other reasons, Williamson

asked for new counsel, his third, but the district court denied his request. He

ultimately chose to proceed to trial without an attorney and was convicted and

sentenced to life in prison. Williamson now argues that the district court should

have inquired into his defense counsel’s potential personal conflict of interest to

determine if the relationship might have affected his right to a fair trial, and that

failure to do so requires automatic reversal.

We disagree, and decline to extend the automatic reversal rule from

Holloway v. Arkansas, 435 U.S. 475 (1978), beyond its traditional application in

multiple representation cases. And since Williamson has failed to make a

showing that his counsel was laboring under an actual conflict of interest, we

reject his conflict of interest argument based on his defense counsel’s personal

relationship with the prosecutor. We also reject Williamson’s alternative

arguments for new counsel: that his filing of a criminal complaint against his

counsel constituted an actual conflict of interest, and that Williamson

demonstrated a complete breakdown of communications between his attorney and

himself.

We also reject Williamson’s claim that the district court erred in allowing

him to conduct his trial and sentencing pro se, since he voluntarily, knowingly,

and intelligently waived his Sixth Amendment right to the assistance of counsel.

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 Finally, we affirm the district court’s denial of Williamson’s motion to

suppress evidence recovered during the search of his Indiana home.

We therefore affirm the district court’s decision in its entirety.

I. Background

Williamson was charged with multiple counts of attempting to entice and

coerce a minor to both engage in sexually explicit conduct and to film the assault. 

On these charges, he faced a potential sentence of life imprisonment.

Williamson was appointed a federal public defender from Kansas City,

Kansas, who asked to withdraw as counsel seven weeks before the scheduled trial

date. The district court granted that motion, continued the trial date, and

appointed Robin Fowler, a local private attorney, as defense counsel. In February

2014, three months before the rescheduled trial, Mr. Fowler also filed a motion to

withdraw as Williamson’s counsel, citing a “total breakdown of communication

between counsel and Mr. Williamson.” R., Vol. 1 at 109. In his motion, Mr.

Fowler stated that the breakdown was “so severe that it [was] irreconcilable” and

that it had led to a “complete lack of trust” between himself and Williamson. Id. 

During the hearing on his motion to withdraw, Mr. Fowler informed the

court that he had told Williamson, as he tells all of his clients, that he and the

Assistant United States Attorney assigned to the case, Kim Martin, were divorced

and have a child together. He stated, “[t]hat’s not an ethical dispute or an ethical

problem and things like that happen a lot in smaller towns but I still make it clear. 

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I don’t know if that adds to [Williamson’s distrust of my advice] or not.” R., Vol.

2 at 10. The court denied Mr. Fowler’s motion to withdraw, finding the request

untimely because it was close to trial and the court had previously granted the

federal public defender’s request to withdraw close to trial. The court also found

that counsel had not shown a total breakdown in communication, any

disagreement appeared to be “strategic disagreement” over who should control the

case, and Williamson was “substantially and unreasonably” contributing to any

breakdown in communication. R., Vol. 2 at 54–56; 63–64. 

Less than two weeks before trial, Williamson filed a pro se motion for new

counsel. After holding an expedited hearing on the motion, the district court

denied Williamson’s request, finding that if there was a conflict between

Williamson and Mr. Fowler, Williamson was substantially and unreasonably

contributing to the breakdown in communication, and the disagreements between

the two boiled down to a strategic disagreement about how the case should be

defended.

The court rescheduled the trial date, but approximately two weeks before

the rescheduled date, Williamson filed a 12-page letter with the district court

complaining further about his relationship with defense counsel. In the letter,

Williamson alleged that he no longer trusted his lawyer and—for the first

time—raised Mr. Fowler’s relationship with the prosecutor as a potential conflict

of interest in his case. The letter stated, “I have explained to many people that

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my appointed attorney is divorced from the attorney for the government and

everyone has agreed, inmate and guard alike, that this is a conflict of interest . . . . 

Does the law allow me to be represented by such adversaries as friends or family

of the [prosecutor]?1

 I think the court has erred by appointing Mr. Fowler to me.” 

R., Vol. 1 at 239; see also id. at 229 (“My court appointed attorney is Robin

Fowler, who is divorced from AUSA Kim Martin (the prosecutor assigned to my

case), [and] is purposely sabotaging my defense in motions and at

hearings . . . .”). The letter also stated that Williamson had filed criminal charges

against Mr. Fowler and was likely to file civil claims as well, and it questioned

whether Mr. Fowler could continue to represent Williamson while those charges

were pending. Williamson also added complaints about the district court’s

impartiality, alleging that the district court judge was also involved in the

conspiracy between Mr. Fowler and the prosecutor.

The district court construed the letter as a motion for new counsel and held

a hearing at which Mr. Fowler supported Williamson’s request for new counsel. 

Neither the district court nor Williamson—when given the opportunity to speak

on the record—addressed the issue of Mr. Fowler’s relationship with the

prosecutor as a potential conflict of interest in the case. The district court again

1

 The text of the record stated “friends or family of the victim,” but, in

context, the record makes clear that Williamson meant to say “friends or family of

the prosecutor.” Accordingly, we have substituted the term here and in the

analysis section for clarity. See R., Vol. 1 at 239.

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denied Williamson’s motion, concluding he had failed to show a complete

breakdown of communication with counsel, and—to the extent there were

disagreements with counsel—they were matters of strategic disagreement. The

district court also concluded Williamson had substantially and unreasonably

contributed to any communication problems with counsel by insisting that Mr.

Fowler raise what appeared to be frivolous issues. 

Two days before trial, Williamson filed a pro se Motion to Relieve Counsel

and Continue Pro Se. The district court denied the motion, concluding

Williamson’s decision to proceed pro se was “a procedural ploy to obtain new

counsel,” for which Williamson “relie[d] on the flawed premise that his current

counsel is ineffective.” R., Vol. 1 at 267. On the morning of jury selection,

Williamson renewed his request to proceed pro se, and a different district court

judge presided over the proceedings. The court advised Williamson that if he

wanted to proceed pro se, he would be responsible for all aspects of the trial. The

court carefully reviewed the charges and statutory penalties with Williamson, and

strongly cautioned him against proceeding pro se. But Williamson insisted on

proceeding pro se anyway, and the court granted his motion. 

Williamson then represented himself at his trial and sentencing. The jury

found him guilty on all counts, and the district court sentenced him to life in

prison.

II. Analysis

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Williamson alleges that the district court erred: (1) in denying his motion

for new counsel; (2) by allowing him to waive his right to counsel and proceed

pro se at trial and sentencing; and (3) in denying his motion to suppress evidence

recovered from a search of his residence. We address each argument in turn and,

finding jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

decision in full.

A. Motion for New Counsel

Williamson challenges the district court’s denial of his motion for new

counsel based on irreconcilable conflicts. First, he claims the court should have

examined whether defense counsel, Mr. Fowler, had a conflict of interest

stemming from his ongoing co-parenting relationship with his former wife, the

Assistant United States Attorney prosecuting Williamson’s case. Alternatively,

Williamson argues that his filing of a criminal complaint against Mr. Fowler

created a conflict of interest between counsel’s self-interest and his duties to

represent his client. Lastly, he maintains that he established a complete

breakdown of communication with Mr. Fowler, and the court abused its discretion

in denying the motion on that basis.

1. Defense Counsel’s Conflict of Interest

Williamson first argues that Mr. Fowler had an irreconcilable conflict of

interest because of his former marriage to the prosecutor and their ongoing coparenting relationship. He claims this conflict of interest, along with the strained

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attorney-client relationship between Williamson and Mr. Fowler, created a high

risk of the denial of his right to counsel. 

The Sixth Amendment’s guarantee of the right to counsel “includes the

right to representation that is free from conflicts of interest.” Gardner v. Galetka,

568 F.3d 862, 886 (10th Cir. 2009). A conflict of interest is “a division of

loyalties that affected counsel’s performance,” Mickens v. Taylor, 535 U.S. 162,

172 n.5 (2002), and demonstrating a conflict of interest is one way for a

defendant to show good cause to warrant substitution of counsel, United States v.

Porter, 405 F.3d 1136, 1140 (10th Cir. 2005). 

This case requires us to harmonize a series of Supreme Court cases

addressing conflicts of interest in a variety of circumstances. A typical potential

conflict can arise from joint or multiple representation situations when more than

one codefendant is represented by the same attorney.2

 For example, one

defendant might be advantaged in accepting a plea offer or testifying against his

codefendant, but the second defendant could be disadvantaged if the first

defendant chooses to do so. Multiple representation conflicts may arise at any

2

 Although courts sometimes use these terms interchangeably, the Sixth

Circuit explained the difference in McFarland v. Yukins: “joint and dual

representation refer to simultaneous representation occurring in the same

proceeding, while multiple representation refers to simultaneous representation in

separate proceedings.” 356 F.3d 688, 701 (6th Cir. 2004); see also Jalowiec v.

Bradshaw, 657 F.3d 293, 315 (6th Cir. 2011) (defining successive representation

as a situation “where defense counsel has previously represented a co-defendant

or trial witness,” while concurrent representation “occurs where a single attorney

simultaneously represents two or more codefendants”).

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point in the criminal process, from the plea bargaining stage to sentencing, even if

the codefendants’ interests initially appear to converge. Wayne R. LaFave, et. al,

3 Crim. Proc. § 11.9(a) (4th ed. 2016 update). 

Other types of conflicts can arise from an attorney’s relationship with other

clients, witnesses, victims, or—as here—the prosecution. And although all of the

above situations give rise to a potential conflict of interest, that potential will

only be converted to an actual conflict of interest if, over the course of litigation,

the defendant’s interests actually clash with his attorney’s interests. See id. An

actual conflict of interest therefore means a “conflict that affected counsel’s

performance—as opposed to a mere theoretical division of loyalties.” Mickens,

535 U.S. at 171 (emphasis added). In other words, an actual conflict exists when

“counsel [is] forced to make choices advancing other interests to the detriment of

his client.” United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998). 

An actual conflict can support an ineffective assistance of counsel claim

where the conflict prejudiced the defendant’s representation. See Strickland v.

Washington, 466 U.S. 668, 687–88, 694 (1984). Generally, a defendant must

demonstrate prejudice flowing from the conflict, but in some circumstances, a

court will presume prejudice when the conflict amounts to the complete denial of

counsel. See id. at 692; United States v. Cronic, 466 U.S. 648, 658–60 (1984). 

So far, the Supreme Court has applied the “presumed prejudice” rule only

for conflicts of interest in multiple representation cases. Beginning with

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Holloway v. Arkansas, 435 U.S. 475 (1978), the Court established that whenever a

trial court improperly requires counsel to represent multiple codefendants over

counsel’s timely objection, reviewing courts will apply an “automatic reversal”

rule. Id. at 476–91. The Court explained that while “joint representation[] is not

per se violative of constitutional guarantees of effective assistance,” defendants

are entitled to representation free of a conflict of interest. Id. at 482. In sum, a

court has a “duty to inquire” into a potential joint representation conflict of

interest when defense counsel informs the court of the alleged conflict prior to

trial, and “whenever a trial court improperly requires joint representation over

timely objection reversal is automatic.” Id. at 488; see also LaFave, supra, at

§ 11.9(b). 

Two years later, however, the Supreme Court declined to apply the

automatic reversal rule when the defendant did not raise the conflict of interest

prior to trial. In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Court distinguished

Holloway, noting that trial courts necessarily rely on the judgment of defense

counsel to bring these matters to their attention, and that counsel “is in the best

position professionally and ethically to determine when a conflict of interest

exists or will probably develop in the course of a trial.” Id. at 347. Therefore,

“[u]nless the trial court knows or reasonably should know that a particular

conflict exists, the court need not initiate an inquiry.” Id. (quoting Holloway, 435

U.S. at 485) (emphasis added). In other words, absent a credible indication of an

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actual conflict of interest before trial, a trial court’s duty to inquire is limited. 

Prejudice will not be presumed, and the automatic reversal rule will not apply.

The most recent and important Supreme Court decision in this line of cases

is Mickens v. Taylor, 535 U.S. 162 (2002). In that case, the Court considered a

conflict of interest raised on habeas review. Mickens’s lead defense counsel had

been representing the juvenile victim on unrelated charges when he was allegedly

murdered by Mickens. The juvenile court judge who dismissed the pending

charges against the victim upon the victim’s death then appointed the same

defense counsel to represent Mickens on the murder charge. Counsel did not

disclose his prior representation, and Mickens only discovered the alleged conflict

when a clerk mistakenly produced the victim’s file to Mickens’s federal habeas

counsel. 

The Court clarified and reaffirmed its previous holdings that a violation of

Holloway’s duty to inquire required automatic reversal. It also held that if the

defendant did not raise a timely objection to the conflict (as in Cuyler), the

defendant must prove that his attorney was laboring under an actual conflict of

interest for the court to reverse his conviction. Id. at 170–74. The Court rejected

the defendant’s plea to extend the automatic reversal rule to cases in which the

trial court was unaware of a potential conflict, stating that such a position “makes

little policy sense” because a judge’s awareness of a potential conflict neither

makes it more likely that counsel’s performance will be affected by the conflict

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nor makes it more difficult for a reviewing court to determine if counsel’s

performance was negatively impacted by the conflict. Id. at 172–74. Nor does

the “vague, unspecified possibility of conflict” trigger a duty to inquire absent

special circumstances. In short, the Court concluded that “automatic reversal

[was not] an appropriate means of enforcing [Cuyler’s] mandate of inquiry.” Id.

at 173.

Read together, these cases establish a bifurcated standard for addressing

conflict of interest claims in the multiple representation context. First, if the

defendant objects to the alleged conflict prior to trial, prejudice is presumed if the

trial court failed to inquire into the nature and scope of the conflict and required

the defendant to proceed with the same attorney. In such instances, reversal is

automatic. See Holloway, 435 U.S. at 484; Selsor v. Kaiser, 81 F.3d 1492, 1500,

1504, 1506 (10th Cir. 1996) (applying Holloway and holding automatic reversal

was warranted because the district court did not inquire into the timely objection

to the multiple representation). 

But if the defendant does not object to the alleged conflict at trial, he must

demonstrate on appeal that an actual conflict adversely affected his

representation. Only if the defendant’s demonstration is sufficient is prejudice

presumed. See Cuyler, 446 U.S. at 348–49; see also Alvarez, 137 F.3d at 1251. 

In this context, the defendant has the burden to show specific facts to support his

allegation of an actual conflict adverse to his interests. See Gardner, 568 F.3d at

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886 (describing the test). If the defendant’s demonstration is insufficient, then

traditional Strickland review will apply: the defendant must establish his counsel

performed deficiently and that performance affected the outcome of trial. 

Strickland, 466 U.S. at 687–88, 694.

The question remains whether Holloway’s duty to inquire (and automatic

reversal if the trial court fails to inquire) extends outside the multiple

representation context. Williamson argues it should include the potential conflict

he alleges here. 

Williamson first raised the alleged conflict between Mr. Fowler and the

prosecutor, Ms. Martin, approximately two weeks prior to trial in a 12-page letter

to the court that recounted numerous reasons why Mr. Fowler should be removed

from the case and a new lawyer (his third) be appointed for trial. Among the

many conflicts he claimed to have with Mr. Fowler, Williamson mentioned Mr.

Fowler’s marriage:

I have explained to many people that my appointed

attorney is divorced from the attorney for the

government and everyone has agreed, inmate and guard

alike, that this is a conflict of interest . . . . Does the law

allow me to be represented by such adversaries as

friends or family of the [prosecutor]? I think the court

has erred by appointing Mr. Fowler to me.

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R., Vol. 1 at 239; see also id. at 229 (“My court appointed attorney is Robin

Fowler, who is divorced from AUSA Martin (the prosecutor assigned to my case),

[and] is purposely sabotaging my defense in motions and at hearings . . . .”). 

In his brief, Williamson elaborated further, stating that the former marriage of his

defense counsel and the prosecutor

gave reason for [Mr. Fowler] to be less than fully and

zealously adversarial, lest it damage or diminish his

relationship with the mother of his child. An erstwhile

marriage may carry continuing obligations, familial or

financial or social. There may be lingering loyalties or

resentments. Co-parenting a child is an ongoing

relationship in which amicability is a laudable and

common objective. This personal interest, like joint

representation, could reasonably have been perceived as

influencing counsel’s judgment or dividing counsel’s

loyalty.

Aplt. Br. at 18. Since Williamson raised the issue before trial, he contends the

district court had a duty to inquire into and dispel any questions of divided

loyalty.

Williamson’s argument is foreclosed by Mickens. As we noted above, the

Supreme Court emphasized that its cases did not “establish, or indeed even

support” an “expansive application” of the automatic reversal rule. The Court

explained that Holloway “stressed the high probability of prejudice arising from

multiple concurrent representation, and the difficulty of proving that prejudice.”

And the Court noted that the purpose of those cases—which are exceptions from

the ordinary requirement that a defendant show prejudice—was “to apply needed

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prophylaxis in situations where [ordinary judicial review under the ineffective

assistance of counsel standards of Strickland] itself is evidently inadequate to

assure vindication of the defendant’s Sixth Amendment right to counsel.” 

Mickens, 535 U.S. at 175–76. The Court illustrated this point by referring to

several alleged conflicts that the circuit courts had resolved under Cuyler when,

the Court hinted, Strickland was likely the more appropriate standard. Id. at

174–75. One of those conflicts was, notably, defense counsel’s “romantic

entanglement with the prosecutor,” but the Court also listed several other alleged

conflicts, including “counsel’s personal or financial interests” in a book deal

about the client’s case; counsel’s future “job with the prosecutor’s office”;

counsel’s teaching of classes to IRS auditors on the potential signs of criminal

activity during the course of his representation of defendant; and counsel’s “fear

of antagonizing the trial judge.” Id.3

 In other words, since the Mickens Court

3

 Although the Mickens Court listed these conflicts as examples of circuit

courts improperly applying Cuyler “unblinkingly,” the Court created further

confusion by resting the opinion on the assumption that the case was properly

decided under Cuyler in the lower courts. So as to whether Cuyler or the more

difficult Strickland review should apply to issues beyond prototypical multiple

representation—such as successive representation, the issue in Mickens—was “as

far as the jurisprudence of this Court is concerned, an open question.” Mickens,

535 U.S. at 174–76. Thus, post-Mickens, the circuit courts are divided on how to

interpret the case. See Smith v. Hofbauer, 312 F.3d 809, 817 (6th Cir. 2002)

(quoting Mickens, 535 U.S. at 176); see also Quince v. Crosby, 360 F.3d 1259,

1263 n.4 (11th Cir. 2004) (same). Some circuit courts have treated the Mickens

Court’s statements as dicta and have chosen to expand Cuyler outside the multiple

representation context, while others have heeded the Court’s caution and have

either applied Strickland or declined to weigh in on the issue. Compare Earp v.

(continued...)

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questioned whether Cuyler was even the appropriate means of reviewing these

alleged conflicts—as opposed to the more difficult Strickland

standard—Holloway’s automatic reversal rule was certainly inapplicable to these

non-multiple representation conflicts. 

After Mickens, a trial court thus has a duty to inquire only if it knows or

reasonably should know of an actual conflict. In the multiple representation

setting, the duty is mandatory, prejudice is presumed, and reversal is automatic. 

But if there is only the mere possibility of conflict, the duty to inquire exists only

if the trial court has a substantial basis to believe an actual conflict exists.

3

(...continued)

Ornoski, 431 F.3d 1158, 1184–85 (9th Cir. 2005) (describing Ninth Circuit

precedent as having “expanded the scope of the [Cuyler] exception to apply in

other contexts”), and United States v. Blount, 291 F.3d 201, 211–12 (2d Cir.

2002) (applying Cuyler test on direct appeal where government witness was

represented in an unrelated proceeding by a different member of defense

counsel’s law firm), with United States v. Wright, 745 F.3d 1231, 1233 (D.C. Cir.

2014) (stating that, “[s]ince Mickens, this Court has [like the Supreme Court] not

decided whether the Cuyler v. Sullivan standard applies to cases involving

successive representation), and Morelos v. United States, 709 F.3d 1246, 1252

(8th Cir. 2013) (describing the court’s jurisprudence as having “expressly

refrained from deciding whether the lowered burden in establishing prejudice

applies to actual conflicts of interest which did not arise out of multiple

representation”), and United States v. Goodley, 183 F. App’x. 419, 422 (5th Cir.

2006) (unpublished) (referencing the “strict limitation of [Cuyler] to cases

involving multiple representation and noting that “the Strickland standard applies

when [] the quality of representation is alleged to have been affected by the

attorney’s self-interest”), and Whiting v. Burt, 395 F.3d 602, 619 (6th Cir. 2005)

(declining to expand Cuyler “beyond its present borders of multiple concurrent

representation”).

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A number of cases from other circuits that were decided after Mickens

support this interpretation. See, e.g., Blake v. United States, 723 F.3d 870, 882

n.11 (7th Cir. 2013) (refusing to apply the automatic reversal rule because the

defense counsel’s conflict did not arise from joint representation and the court has

“recognized that ‘[s]ubsequent Supreme Court decisions have limited the

Holloway holding to situations in which the district court requires joint

representation over a timely objection.’” (quoting United States v. Lafuente, 426

F.3d 894, 897 (7th Cir. 2005))); Ausler v. United States, 545 F.3d 1101, 1103–04

(8th Cir. 2008) (refusing to apply Holloway outside the multiple representation

context). 

As the First Circuit recognized in United States v. Mota-Santana, 391 F.3d

42 (1st Cir. 2004), if we held otherwise and treated attorney-client disagreements

the same as conflicts arising from multiple representation situations “with

resulting possible per se reversal without the necessity of proving prejudice,” then

“the nature of appeals in criminal cases would be dramatically altered. The odds

are that many an unsuccessful defendant would be found nursing some

disagreement with counsel.” 391 F.3d at 46. In the same vein, a leading

commentator notes, “while courts uniformly require an inquiry where counsel

moves for withdrawal and cites a conflict other than multiple representation,

Holloway arguably does not extend to such settings, so the failure to conduct an

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inquiry does not require automatic reversal as a matter of constitutional law.” 

See LaFave, supra, at § 11.9(b) (emphasis added). 

In support of his contention that Holloway governs here, Williamson relies

on our decision in United States v. Cook, 45 F.3d 388 (10th Cir. 1995), abrogated

on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001). In Cook, a

§ 2255 habeas decision, we held the defendant was denied effective assistance of

counsel because we concluded that “a defendant’s right to counsel free from

conflicts of interest ‘is not limited to cases involving joint representation of codefendants . . . but extends to any situation in which a defendant’s counsel owes

conflicting duties to that defendant and some other third person.’” Id. at 393

(quoting United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988)). 

But Cook was not a personal conflict of interest case. Rather, the case involved a

joint representation conflict: during trial, the court asked defense counsel to

apprise the codefendant-turned government witness (whom he was not

representing) of the consequences of her refusal to testify against his client. 

Although the defense counsel did not ultimately represent the codefendant in the

subsequent proceedings, the conflict raised was the same as if he had. See id. at

391–92, 394. Our decision in Cook, therefore, does not control the outcome of

this case.4

4

 The existence of an actual, prejudicial conflict in Cook was also so

“obvious” that the court found Strickland prejudice arising from counsel’s failure

(continued...)

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Williamson’s reliance on Cook, moreover, is undermined by the Supreme

Court’s decision in Mickens seven years later. As we explained, in that case, the

Court held that Holloway’s automatic reversal rule applied “only where defense

counsel is forced to represent codefendants over his timely objection, unless the

trial court has determined that there is no conflict.” 535 U.S. at 168 (emphasis

added). In other words, in explaining its holding in Holloway, the Court

expressly limited the automatic reversal rule to multiple representation situations. 

The language of Holloway itself also supports this reading. See 435 U.S. at 488

(“[W]henever a trial court improperly requires joint representation over timely

objection reversal is automatic.” (emphasis added)). The principle of Holloway

flows from the “disabling conflict” of joint representation, not from a universal

understanding that every potential conflict is created equally. See LaFave, supra,

at § 11.9(b). 

Accordingly, we conclude that Mickens clarified that the automatic reversal

rule applies only to multiple representation conflicts of interest. Therefore, the

automatic reversal rule is inapplicable to the conflict alleged here. After Mickens,

a potential conflict of interest that is not a multiple representation

conflict—regardless of whether it is raised prior to trial—does not fall under

Holloway’s “duty to inquire” into potential conflicts of interest. Only if a court

4

(...continued)

to assert a “dead-bang winner” on direct appeal. Cook, 45 F.3d at 395.

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knows or has reason to know of an actual conflict must it do more. And even if

the court fails to inquire into an actual conflict, the automatic reversal rule will

not apply. Instead, on appellate review, the court will consider the facts and

circumstances of the case under the commands of Strickland before deciding if

there was constitutional error. 

Here, whether we should review Williamson’s conflict of interest claim

under Cuyler or the more difficult Strickland standard is immaterial, because

Williamson cannot meet even Cuyler’s lesser standard. Williamson has failed to

allege any instances suggesting that Mr. Fowler’s representation was

compromised due to his relationship with the prosecutor. In fact, before

Williamson brought his conflict of interest concern to the attention of the court,

Mr. Fowler himself made the court aware of his relationship with Ms. Martin, and

specifically stated that it was not a conflict. During the February 2014 hearing on

Mr. Fowler’s motion to withdraw, he informed the court, 

I told [Williamson], obviously he’s aware, I make it very

clear with all my clients, that Miss Martin and I were

married at one time, we have a child together. That’s

not an ethical dispute or an ethical problem and things

like that happen a lot in smaller towns but I still make it

clear. I don’t know if that adds to [Williamson’s

distrust of my advice] or not.

R., Vol. 2 at 10. Williamson, moreover, failed to raise the alleged conflict of

interest issue until months later, in his second pro se motion for new counsel. 

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Even then, when given the opportunity to state his concerns on the record,

Williamson cited a litany of complaints against Mr. Fowler, but never mentioned

Mr. Fowler’s alleged personal conflict of interest. We cannot fault the district

court for failing to inquire further when neither the defendant nor his counsel

(who wanted out of the case) thought it was important enough to raise in front of

the court. In short, the district court had no reason to believe, without more, that

Mr. Fowler had an actual conflict that compromised his representation of

Williamson. 

In sum, since Williamson has failed to meet his burden under Cuyler, we

reject his conflict of interest claim based on Mr. Fowler’s relationship with the

prosecutor.

2. Conflict Based on Criminal Complaint

Alternatively, Williamson argues that the district court should have granted

his motion for new counsel because he had filed a criminal complaint against Mr.

Fowler, creating a conflict of interest between Mr. Fowler’s self-interest and his

duties to represent his client. We review a district court’s denial of a motion to

substitute counsel for abuse of discretion, see United States v. Vargas, 316 F.3d

1163, 1165 (10th Cir. 2003), and again disagree with Williamson and hold that

filing, or threatening to file, a criminal or ethical complaint against an attorney

does not per se create a conflict of interest requiring substitution of counsel. 

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A defendant’s grievance against his attorney may establish good cause for

substitution of counsel, but the mere act of filing a grievance is not dispositive. 

Instead, a defendant must show that his attorney possessed an actual conflict of

interest with his client and that his performance was adversely affected due to that

conflict. See United States v. Holman, 314 F.3d 837, 845–46 (7th Cir. 2002).

Although there are few authorities in our circuit that address this issue,5

 we

are aided in our analysis by ample authority from other circuits on the topic of

ethical complaints. In United States v. Contractor, 926 F.2d 128 (2d Cir. 1991),

for instance, the Second Circuit held that a defendant’s conflict of interest claim

based on a bar association complaint that he had filed against his attorney prior to

sentencing lacked merit because the defendant offered no evidence how the

alleged conflict adversely affected his attorney’s performance. Id. at 134. 

Similarly, in United States v. Burns, 990 F.2d 1426 (4th Cir. 1993), the Fourth

Circuit explained that the Supreme Court has never suggested that a conflict

between a defendant and his attorney arising from a separate proceeding requires

5

 In Galloway v. Howard, 624 F. Supp. 2d 1305 (W.D. Okla. 2008), the

district court noted that we have, in unpublished opinions, “upheld a district court

determination that counsel did not have an irreconcilable conflict notwithstanding

the defendant’s filing of a complaint with the bar association,” and “rejected a

habeas claim on grounds that the petitioner’s filing of a complaint against his trial

counsel with the state bar association did not reflect a reasonable probability of

reversal if the issue had been raised on appeal.” Id. at 1317–18 (discussing

United States v. Rhodes, 157 F. App’x 84, 88 (10th Cir. 2005) (unpublished) and

Wiley v. Sirmons, 196 F. App’x 727, 731 (10th Cir. 2006) (unpublished)). We, of

course, refer to these unpublished decisions only for their persuasive value. Fed.

R. App. P. 32.1; 10th Cir. R. 32.1. 

-22-
automatic reversal. In fact, as the court noted, the defendant’s attorney would not

have been advantaged in disciplinary proceedings before the state bar if he had

failed to represent the defendant to the best of his ability in the criminal case. Id.

at 1438; see also Winfield v. Roper, 460 F.3d 1026, 1040 (8th Cir. 2006)

(“Nothing in our precedent suggests that the mere filing of a malpractice action is

sufficient to create a conflict of interest.”). Further, the Fourth Circuit in Burns

cautioned that to extend the automatic reversal rule to this situation might allow

defendants to game the system: “to hold otherwise on such unpersuasive facts

would invite criminal defendants anxious to rid themselves of unwanted lawyers

to queue up at the doors of bar disciplinary committees on the eve of trial. Such

is not an invitation we wish to extend.” Burns, 990 F.2d at 1438; see Smith v.

Lockhart, 923 F.2d 1314, 1321 n.11 (8th Cir. 1991) (recognizing “the danger of

any holding implying that defendants can manufacture conflicts of interest by

initiating lawsuits against their attorneys”).

Thus, a defendant’s mere filing of a disciplinary inquiry or criminal

complaint against his attorney is not enough to establish an actual conflict of

interest. An actual conflict exists only if an attorney is torn between two

different interests, and a defendant must prove that he was prejudiced by actions

resulting from the alleged conflict. See Holman, 314 F.3d at 845. 

Here, Williamson argues that the court “should have accepted counsel’s

representations that the conflict [caused by Williamson’s complaints against Mr.

-23-
Fowler] impaired his professional judgment, his ethical responsibilities, and his

own self-interest.” Reply Br. at 5. But a close examination of the record

suggests that what Mr. Fowler was really concerned about was how the record

would look on appeal; his statements on the whole do not suggest that he was torn

between two competing interests.

Mr. Fowler recognized that Williamson’s filing of a complaint against him

with the Attorney General created a conflict of interest, but added, “I don’t think

that alone is enough to demand removal.” R., Vol. 2 at 157, 160. Mr. Fowler

also expressed a lack of concern with the charges, stating, “frankly, I doubt those

will go anywhere.” Id. at 157. Mr. Fowler’s statement is consistent with the

district court’s findings: “Mr. Fowler has not asserted that the filing of the

complaint would affect his professional performance in any manner whatsoever,

and the Court is confident that he can and will continue to represent defendant in

an utmost professional manner.” R., Vol. 1 at 244. Instead, Mr. Fowler was

concerned about how the disagreements between him and Williamson would

appear in future appeals. See R., Vol. 2 at 159 (“[W]e’ll be here in two and a half

years in a 2255 and I will be answering questions, probably under oath, did you

feel like you could communicate with your client? And I don’t know at that stage

what my answer will be . . . but I suspect my answer is going to be, no, there was

no communication.”); Id. at 158 (“[H]ow’s that going to look in two years and in

[a] 2255? Did I—was my advice to protect me or to protect him?”). 

-24-
Mr. Fowler made one statement to the court that requires further comment. 

During the hearing on May 30, 2014, Mr. Fowler told the court:

I have pondered a competency evaluation . . . I’m not

saying that []—I would file that today or this week or

that it might come up between now and trial or after

trial, before sentencing. And how [] do I as an attorney

properly evaluate that and how is the record going to

look . . . if that motion is filed after a complaint has

been made against me?

R., Vol. 2 at 162. Although this concern is similar to the ones raised above—Mr.

Fowler’s concerns were forward-looking, based on how his representation would

be viewed on appeal—and the record does not indicate that Mr. Fowler himself

believed there was a conflict of interest at the time of his statements, this

statement still gives us pause. Considering that Williamson eventually conducted

his trial pro se, Mr. Fowler’s failure to request a competency evaluation could

have had a substantial effect on the outcome of the case. If Williamson’s

competency had been evaluated, and if he was found to be incompetent, he

certainly would not have been able to represent himself in the subsequent

proceedings. 

Still, even assuming arguendo that the competency statement constituted an

actual conflict, that is not the end of the inquiry. Williamson must also prove that

Mr. Fowler’s “performance was adversely affected because of [the] conflict [of

interest].” Holeman, 314 F.3d at 845. Williamson cannot meet that standard. 

Mr. Fowler and Williamson’s disagreements began long before Williamson filed

-25-
the complaint and Mr. Fowler made the statement about the competency

evaluation. In fact, Mr. Fowler himself had filed a motion to withdraw back in

February 2014, three months before the competency statement, citing a “total

breakdown of communication between counsel and Mr. Williamson.” R., Vol. 1

at 109. 

Accordingly, it is impossible to draw a causal link between Williamson’s

filing of criminal charges against Mr. Fowler and Mr. Fowler’s statement about

Williamson’s competency to demonstrate that Mr. Fowler’s performance was

adversely affected because of the charges filed against him. The parties simply

have too complicated of a history. 

We therefore reject Williamson’s conflict of interest argument based on his

filing of a criminal complaint against counsel.

3. Complete Breakdown of Communication

Williamson’s third conflict-based argument is that the district court should

have granted his motion for new counsel because he demonstrated a complete

breakdown of communication between himself and Mr. Fowler. 

A defendant may demonstrate abuse of discretion by showing “a complete

breakdown of communication” between himself and counsel. United States v.

Padilla, 819 F.2d 952, 955 (10th Cir. 1987) (citation omitted). “Good cause for

substitution of counsel consists of more than a mere strategic disagreement

between a defendant and his attorney . . . rather there must be a total breakdown

-26-
in communications.” United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). 

“[T]o prove a total breakdown in communication, a defendant must put forth

evidence of a severe and pervasive conflict with his attorney or evidence that he

had such minimal contact with the attorney that meaningful communication was

not possible.” Id. In reviewing a district court’s denial of a motion to substitute

counsel, we consider whether: (1) the defendant’s request was timely; (2) the trial

court adequately inquired into the reasons for making the request; (3) the

defendant-attorney conflict was so great that it led to a total lack of

communications precluding an adequate defense; and (4) the defendant

substantially and unreasonably contributed to the breakdown in communications. 

Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000); see also United States

v. Porter, 405 F.3d 1136, 1140 (10th Cir. 2005). 

The district court concluded that the motion was untimely and denied the

request. But even if Williamson’s request had been timely, the remaining Romero

factors weigh against him. See United States v. Lott, 433 F.3d 719, 725 (10th Cir.

2006) (affirming the district court’s denial of a motion to substitute counsel

despite the fact that the motion was timely filed, because “the district court did

not abuse its discretion in concluding the other three Romero factors weighed

against finding a complete breakdown in communication”). Williamson concedes

that the district court made an “adequate inquiry” into his reasons to ask for

substitute counsel, Aplt. Br. at 32, so the remaining issues are only whether the

-27-
defendant-attorney conflict was so great that it led to a total lack of

communications precluding an adequate defense and whether the defendant

substantially and unreasonably contributed to the breakdown in communications. 

See Romero, 215 F.3d at 1113.

Williamson admits that “some disputes were related to trial tactics and

strategic decisions” and that “courts have discretion to reject those disagreements

as grounds for substitute counsel,” Aplt. Br. at 32, but he argues that Mr. Fowler

informed the court there was an “irreconcilable” and “total breakdown of

communication” between himself and Williamson, there was a “complete lack of

trust,” and he did not feel that it was “appropriate . . . to continue as his

attorney,” Aplt. Br. at 33 (citations omitted); consequently, Williamson argues,

the district court should have paid substantial deference to Mr. Fowler’s view and

allowed him to withdraw as Williamson’s counsel.

But Williamson failed to provide the district court with legitimate reasons

for his distrust of Mr. Fowler. Instead, most of the disagreements between the

two resulted from their different views on case strategy and tactics, which the

trial court recognized after considering Williamson’s concerns at length.6

6

 See R., Vol. 2 at 36–46, 61 (addressing issues raised by Williamson’s

February 11, 2014 letter to the court); R., Vol. 2 at 97 (after a lengthy inquiry into

Williamson’s complaints about Mr. Fowler during the April 29, 2014 hearing, the

court stated, “Mr. Williamson, you are wasting the time of everybody in this

courtroom.”); R., Vol. 2 at 99 (“It also seems to me that what we’re talking about

is a strategic disagreement between you and your attorney about how this case

(continued...)

-28-
Williamson’s remaining concerns about Mr. Fowler’s representation were that Mr.

Fowler had violated attorney-client confidentiality,7

 that he was threatening

Williamson if he did not take the plea bargain offered by the government, and that

Mr. Fowler had threatened to post the details of the crime in the newspaper to

force Williamson to take the guilty plea out of fear for his life. These concerns

are unreasonable. Williamson incorrectly believes that plea bargaining is

unconstitutional and is a form of blackmail. The district court inquired into

Williamson’s other concerns, but determined that merely conveying the

government’s plea offers to the defendant is not “threat[ening]” conduct, and is

actually required of defense counsel under Missouri v. Frye, 132 S. Ct. 1399

(2012). Additionally, the court determined that informing Williamson that the

details of his case could be publicized if they went to trial was “not a threat” by

6

(...continued)

should be defended, [and] I have not heard anything which suggests to me from

any objective point of view that Mr. Fowler is refusing or failing to provide the

representation to which you are entitled under the Sixth Amendment to the United

States Constitution.”); R. Vol. 1 at 245 (finding that “defendant has not shown a

complete breakdown of communications with Mr. Fowler or any other ground to

warrant substitution of counsel” and “defendant has identified numerous matters

of strategic disagreement with Mr. Fowler but these issues are ultimately matters

of defense strategy left to the discretion of counsel.”). 

7

 Williamson made only a passing reference to a violation of attorneyclient privilege that was distinct from the claims that counsel would blackmail

him unless he took the plea bargain and that counsel threatened to post details of

the crime in the newspaper. See R., Vol. 1 at 261 (“Counsel’s slip-of-the-tongue

that ‘’they’ don’t believe your story’ gives the appearance that counsel has

violated attorney/client privilege.”).

-29-
Mr. Fowler, but a “fact of life.” See R., Vol. 2 at 58; see id. at 61 (“What Mr.

Fowler is trying to tell you, I believe, is that you need to understand the

consequences of pleading guilty or going to trial. And what he’s saying to you is

accurate.”). 

Finally, the fourth Romero factor—whether the defendant substantially and

unreasonably contributed to the breakdown in communications—weighs heavily

against Williamson in this case. See Romero, 215 F.3d at 1113. The record is

replete with evidence that Williamson was uncooperative and, at times,

intransigent, when it came to his incorrect legal theories, even if Mr. Fowler

could not state that their breakdown in communications was “100% Mr.

Williamson’s fault.” R., Vol. 2 at 164. As the district court’s comments make

clear, Williamson wanted to control all of the strategic decisions in his case and

complained about Mr. Fowler when he refused to “put[] up [with Williamson’s]

bogus theories and demand[s] that Mr. Fowler do things he can’t ethically do.” 

R., Vol. 2 at 56. Additionally, the district court noted that although Mr. Fowler

claimed that there was a complete breakdown in communication when he

requested to be removed as Williamson’s counsel, “[d]efendant appears to have

no problem communicating with counsel when he agrees with counsel’s message

on matters such as waiving a jury trial. Meaningful communication is clearly

possible when defendant chooses to engage in it.” R., Vol. 1 at 245 n.2. 

-30-
In sum, the record makes clear that Williamson substantially and

unreasonably contributed to the breakdown in communication with his counsel

and supports the district court’s denial of Williamson’s requests for new counsel. 

B. Waiver of the Right to Counsel

Williamson next argues that the district court erred in allowing him to

represent himself during his trial and sentencing. 

A defendant has the Sixth Amendment right to waive his right to counsel

and represent himself in a criminal case. Faretta v. California, 422 U.S. 806,

821, 832 (1975). But the waiver must be “an intentional relinquishment or

abandonment of a known right or privilege.” United States v. McConnell, 749

F.2d 1441, 1450–51 (10th Cir. 1984) (citation omitted). And “[b]efore a court

may grant a waiver, it must ensure the defendant is ‘aware of the dangers and

disadvantages of self-representation, so that the record will establish that he

knows what he is doing and his choice is made with eyes open.’” Maynard v.

Boone, 468 F.3d 665, 676 (10th Cir. 2006) (quoting Faretta, 422 U.S. at 835). 

We conduct a two-part test to determine whether a defendant has

effectively waived his right to counsel. “First, we must determine whether the

defendant voluntarily waived his right to counsel [and] [s]econd, we must

determine whether the defendant’s waiver of his right to counsel was made

knowingly and intelligently.” United States v. Taylor, 113 F.3d 1136, 1140 (10th

Cir. 1997). 

-31-
Under the first part of our analysis, whether a defendant’s waiver of

counsel is voluntary “turns on whether defendant’s objections to present counsel

are such that he has a right to new counsel.” United States v. Padilla, 819 F.2d

952, 955 (10th Cir. 1987). “A defendant’s waiver is involuntary if he is forced to

choose between incompetent counsel or appearing pro se.” United States v.

Taylor, 183 F.3d 1199, 1203 (10th Cir. 1999). And unless a defendant

demonstrates good cause warranting the appointment of new counsel, the

defendant’s decision to waive counsel will be considered voluntary. Taylor, 113

F.3d at 1140. 

Under the second part of our analysis, we look at the totality of the

circumstances to determine whether a defendant has knowingly decided to

proceed pro se. The test for an intelligent waiver “turns not only on the state of

the record, but on all the circumstances of the case, including the defendant’s age

and education, his previous experience with criminal trials, and representation by

counsel before trial.” Padilla, 819 F.2d at 958. The “tried-and-true” method for

determining that a waiver was knowing and intelligent is to conduct a Faretta

hearing: “a thorough and comprehensive formal inquiry of the defendant on the

record to demonstrate that the defendant is aware of the nature of the charges, the

range of allowable punishments and possible defenses, and is fully informed of

the risks of proceeding pro se.” United States v. Vann, 776 F.3d 746, 763 (10th

Cir. 2015) (quoting United States v. Willie, 941 F.2d 1384, 1388 (10th Cir.

-32-
1991)). “However, there is ‘[n]o precise litany’ of questions that must be asked

of defendants who choose self-representation.” United States v. Turner, 287 F.3d

980, 983 (10th Cir. 2002) (quoting Padilla, 819 F.2d at 959). We review the

validity of a waiver of the right to counsel de novo and the underlying factual

findings for clear error. See id. 

 Williamson contends that his decision to waive counsel and proceed pro se

was a “Hobson’s choice,” because the district court refused his motion to

substitute counsel. Aplt. Br. at 39. Under the first part of the inquiry,

Williamson claims that his choice to proceed pro se was involuntary, because “his

options were to proceed to trial with conflicted counsel he could not meaningfully

talk with, or to represent himself.” Id. To show an involuntary waiver, however,

a defendant must first demonstrate good cause warranting the substitution of

counsel. See, e.g., Taylor, 113 F.3d at 1140; Padilla, 819 F.2d at 955. 

Williamson has failed to do so here, presenting no meritorious arguments

that Mr. Fowler’s representation was inadequate or that a new attorney was

required. The district court had previously supplied Williamson with new

counsel. Then, the court held multiple hearings to address Williamson’s requests

for yet another new attorney and denied all of his motions. And, as we have

previously explained, none of Williamson’s complaints about Mr. Fowler merit a

-33-
different outcome on appeal. Williamson therefore voluntarily waived his right to

counsel.8

Under the second part of the inquiry, Williamson argues he did not

knowingly and intelligently waive his right to counsel. See Aplt. Br. at 40. The

record does not support his claim. In fact, the district court conducted a thorough

Faretta inquiry, ensuring that Williamson understood that representing himself

would require him to conduct every phase of the trial. The court confirmed that

Williamson had read the indictment and understood the charges against him and

the possible penalties he faced. The court warned Williamson that if he

represented himself, the judge would not be able to advise him on how to try his

case, he would be responsible for determining the defenses he could raise at trial,

and the procedural rules of the courtroom would not be relaxed for his benefit. 

The district court even strongly cautioned Williamson against proceeding pro se,

describing it as “a grave and severe mistake.” R., Vol. 1 at 469–71. Finally,

prior to opening statements, the trial judge reiterated many of the court’s

warnings and conducted a colloquy with Williamson to ensure that he

remembered his previous conversation with the court, had thought about it, and

that his opinion had not changed. 

8

 Williamson also argues that his waiver of counsel was involuntary

because the district court first suggested that he proceed pro se. See Aplt. Br. at

40. But that argument fails. We encountered a similar situation in Taylor, 183

F.3d at 1203, yet still concluded that the defendant’s decision to represent himself

was voluntary. See id. 

-34-
We therefore reject Williamson’s waiver argument.9

C. Suppression of Evidence

Williamson’s final argument is that the district court erred in denying a

motion to suppress evidence recovered from a search of his residence. 

Williamson contends the search warrant was facially deficient, because it failed to

express a finding of probable cause and state that it was a “search warrant” on the

face of the document.

The magistrate judge reviewing the motion to suppress found the following

facts: Lawrence, Kansas police detectives Scott Slifer and Mike Schneider met

with a local Indiana judge to obtain a search warrant for Williamson’s home. 

Detective Slifer presented two documents to the judge: (1) a five-page, singlespaced affidavit in support of the search warrant; and (2) an untitled, one-page

document in the format of a search warrant. The first five paragraphs of the

documents were identical, and both specifically identified the address of the place

to be searched and the items to be seized. Both documents also concluded with a

signature line for the affiant, followed by the words, “[s]igned and sworn to

before me on June 04, 2012, by Scott Slifer,” and a signature line for the judge. 

R., Vol. 1 at 126. The judge swore Detective Slifer to the probable cause

9

 Williamson claims that another Faretta hearing should have been

conducted prior to his sentencing, but we rejected that argument in United States

v. Vann, 776 F.3d 746 (10th Cir. 2015), describing such a rule as “unworkable.” 

Id. at 764.

-35-
affidavit and approved and signed both the warrant and the affidavit. Detectives

Slifer and Schneider, along with Indiana police officers and detectives, executed

the search warrant later that morning and seized numerous items from

Williamson’s Indiana residence, including computers and related equipment, a

cell phone, and a digital camera. But “due to an oversight,” the magistrate judge

found that “[D]etective Slifer signed the warrant [but] did not sign the probable

cause affidavit.” R., Vol. 1 at 126–27.

After making these factual findings, the magistrate judge recommended that

Williamson’s motion to suppress be denied, and the district court—after

reviewing the magistrate judge’s Report and Recommendation—adopted the

recommendation in its entirety. 

The Fourth Amendment requires two elements for a search warrant: (1)

probable cause supported by an oath or affirmation; and (2) a particular

description of the place, persons, and things to be searched and seized. U.S.

Const. amend. IV; see also United States v. Brakeman, 475 F.3d 1206, 1211 (10th

Cir. 2007). We do not apply a “hypertechnical approach to search warrants.” 

United States v. Massey, 687 F.2d 1348, 1356 (10th Cir. 1982). Instead, we have

“adopted a standard of ‘practical accuracy rather than technical precision.’”

United States v. Ortega-Jimenez, 232 F.3d 1325, 1328 (10th Cir. 2000) (quoting

United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998)). Indeed, the

Fourth Amendment does not require that a written affidavit establish probable

-36-
cause; “it merely requires that the information provided the issuing magistrate be

supported by ‘Oath or affirmation.’” United States v. Clyburn, 24 F.3d 613, 617

(4th Cir. 1994) (quoting U.S. Const. amend. IV); see also United States v.

Shields, 978 F.2d 943, 946 (6th Cir. 1992) (“The Fourth Amendment does not

require that statements made under oath in support of probable cause be taperecorded or otherwise placed on the record or made part of the affidavit.”);

Frazier v. Roberts, 441 F.2d 1224, 1226–27 (8th Cir. 1971) (“It is clear that the

Fourth Amendment permits the warrant-issuing magistrate to consider sworn oral

testimony supplementing a duly executed affidavit to determine whether there is

probable cause upon which to issue a search warrant.”). 

Additionally, “nothing in the [text of] the Fourth Amendment [expressly]

conditions the validity of a warrant on its being signed.” United States v. Cruz,

774 F.3d 1278, 1285 (10th Cir. 2014) (quoting United States v. Lyons, 740 F.3d

702, 724 (1st Cir. 2014)). In both Cruz and Lyons, the judge reviewed the police

officers’ probable cause application, determined that probable cause existed, and

signed the application and accompanying affidavit, but inadvertently failed to

sign the warrant itself before the officers conducted the search. See Cruz, 774

F.3d at 1285–86. The defendant in Cruz argued that the warrant was thus

“facially deficient at the time of the search because it lacked any indication that a

neutral and detached magistrate had made a determination of probable cause.” Id.

at 1286–87. We rejected this argument, stating, “Cruz erroneously interprets this

-37-
first requirement as requiring the face of the warrant itself to ‘contain[] . . .

markings,’ preferably a signature, ‘indicating a neutral and detached

magistrate . . . actually’ made a finding of probable cause. Nothing in Groh,

however, let alone the text of the Fourth Amendment itself, imposes such a facial

requirement.” Id. at 1287 (referencing the Supreme Court’s decision in Groh v.

Ramirez, 540 U.S. 551 (2004)). 

Here, Detective Slifer’s inadvertent failure to sign the affidavit does not

violate the probable cause requirement. The magistrate judge found that three

facts demonstrated a sufficient “oath or affirmation” of probable cause, even

absent Detective Slifer’s signature on the face of the affidavit. First, detectives

Slifer and Schneider both testified that the Indiana judge swore Detective

Schneider to the “truth and veracity” of the affidavit he presented in support of

the search warrant. Second, the judge signed both the affidavit and the search

warrant; and third, Detective Slifer signed the search warrant under the sentence

that read, “Affiant states the following facts which he has reasonable grounds to

believe and does believe to be true.” R., Vol. 1 at 142–43 (quoting the search

warrant). 

Williamson also argues that the search warrant was invalid because it did

not include the title “search warrant.” To require that a search warrant contain

the title “search warrant” would fall under the requirements that we have rejected

as “hypertechnical.” Massey, 687 F.2d at 1356. The text of the warrant itself is

-38-
sufficient to “assure[] the individual whose property is searched or seized of the

lawful authority of the executing officer, his need to search, and the limits of his

power to search.” Groh, 540 U.S. at 561 (quoting United States v. Chadwick, 433

U.S. 1, 9 (1977)). 

Accordingly, we find no error in the district court’s denial of Williamson’s

motion to suppress.

III. Conclusion

We AFFIRM the district court’s decision in its entirety.

-39-