1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0278p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

J ERMAINE B ENJAMIN P RYOR , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 15-2123

Appeal from the United St ates District Court for the Western District of Michigan at Grand Rapids. No. 1:14-cr-00208—Robert J. Jonk er, Chief District Judge.
Decided and Filed: November 22, 2016
Before: GUY, BOGGS, and GRIFFIN, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Steven D. Jaeger, THE JAEGER FIRM, PLLC, Erlanger, Kentucky, for Appellant. B. Rene Shekmer, UNITED STATES ATTORNEY ’S OFFICE, Grand Rapids, Michigan, for Appellee.

_________________ OPINION

_________________ BOGGS, Circuit Judge. Before us is a case in volving the invocation of the right to selfrepresentation, voice-iden tification testimony, and a sentenci ng enhancement for possession of a firearm in furtherance of a drug crime. Because we find no error below, we affirm the judgment
of the district court. 

### >No. 15-2123 United States v. Pryor Page 2

I
Jermaine Pryor (who calls himself Al Gomono Bey) 1 was charged with conspiring with
three other men to distribute heroin between 2012 and 2014. Th e conspiracy operated by having interested persons call a phone number to speak to “Daffy Duck ” and negotiate a purchase of heroin. “Daffy” (allegedly Pryor) would then gi ve a location for the proposed transaction and inform members of the conspiracyof what to bring and where to bring it. Deputy Chauncey Shattuck listened in on four telephone calls between “Daffy” (now under the nom de guerre “Taz”) and an informant in January and Febr uary 2014 regarding buying heroin. Following a drug purchase on February 20 by the informant, pol ice maintained surveillance on the residence
where the sale occurred. While a search wa rrant was being drafted, a Dodge Magnum arrived and Pryor entered the house. Police observed Pryor through th e window as he picked up money and placed it into a bag, and then returned to his car and left. Deputy Michael Leasher followed the car from the house until it was stopped by an Ingham County sergeant and deputy for traffic violations. Pryor was ordered out of the vehicle and the officers observed that he had a .45- caliber Glock pistol holstered in side his waistband. Pryor inform ed the officers that he had a proper license for the weapon, which they verifi ed. After he was handcuffed and patted down, the police discovered wads of money in his pockets . Pryor was arrested fo r his connection to the drug transaction. The police later found in the car a cell phone with a di sconnected battery. They reconnected the battery and turned the pho ne on. Shattuck called the number for Taz and the phone rang.
Pryor made thirty-three phone calls while in ja il, which were recorded. In addition, Pryor had a recorded virtual meeting w ith a visitor via video feed. Pr yor was released, and Shattuck received disks from Detective Brad Delaney that Delaney stated contained recordings of the phone calls from Pryor and the twenty-minute video recording.
Shattuck listened to these phone calls and th e video recording (a to tal of about four hours of conversation) in preparation for further investigation. In wa tching the video, Shattuck found

1 While Jermaine Pryor prefers to be called “Al Gomono Bey,” he does not appear to have changed his legal name and the proceedings thus far have referred to him by his given name. As a result, we refer to the defendant throughout as “Pryor.”No. 15-2123 United States v. Pryor Page 3

that Pryor’s voice matched Taz’ s voice that he had heard earli er, and that the voices on the recordings were the same as that of the prison er in the video. In la te April 2014, Taz called Shattuck and the two spoke briefly. Shattuck thenmade four controlled drug purchases in July 2014, each time contacting Taz over the phone an d discussing the purchase details.

Officer Daniel Batora was also involved in the investigation of th e conspiracy. Batora listened to a twenty-minute reco rding of Pryor’s conversation inthe last week of April 2014 prior to placing a call on May 1 to a line tho ught to be one of Taz’s ever-changing phone
numbers. Batora identified the man on the other end of the line as Pryor and arranged a purchase of heroin. He made a total of three phone calls and purchases of heroin in May 2014.
Pryor was arrested again on December 2, 2014, and brought before a magistrate judge. There, he appeared to ob ject to the jurisdiction of the court, announcing that he had “no contracts with the United States corporation or anybody in this courtroom,” and repeatedly ignored the magistrate judge’s requests to be quiet. The court adjourned and brought him back the next day to complete his initial appearance. At this appearance, the court asked Geoffrey Upshaw to appear as standby counsel for Pryor and informed Pryor that Upshaw was “here if you wish to consult with him, but he d[id] not yet” represen t him. Pryor responded that he was “never going to consult with” Upshaw. He then began to object to the jurisdiction of the court, explaining that he was “not a part of your society. . . . I am a moor, and your laws d[o]n’t apply to me.” 2 The magistrate judge informed Pryor of his right to the assistance of counsel, and that counsel would be appointed at no cost if he could not afford representation. Pryor immediately stated “I don’t consent to that.” When the magistrate judge asked if he understood that counsel could be appointed for him, Pryor replied that he did not. The magistrate judge th en inquired if Pryor was asking the court to appoint counsel, and Pryor de nied consent to the court’s jurisdiction. The magistrate judge repeated his question, and Pryor answered “No. I don’t have—no, I don’t consent to anything.” When asked if he intended to hire his ow n attorney, Pryor indicated that he would not: “Why would I—I am not a minor and no one . . . will be talking for me.” Again, the magistrate judge repeated his question, and Pryor repeated his answer, saying “I’m not a

2 Pryor’s arguments were consistent with a branch of the “sovereign citizen” move ment, an ideology that rejects the legitimacy of United States jurisdiction over its adherents. See, e.g. , Michael Crowell, A Quick Guide to Sovereign Citizens , Admin. Just. Bull. (UNC Sch. of G ov’t, Chapel Hill, N.C.), Nov. 2015.No. 15-2123 United States v. Pryor Page 4

minor and I don’t need anyone to talk for me.” After being read the charges against him and asked if he understood them, Pryor said he did not. He repeated his denial of the court’s jurisdiction (“I’m not a part of your society. Your laws d[o]n’t apply to me.”). Citing Pryor’s “bizarre[]” behavior, the magistrate judge ordered that Pryor be refe rred to the Bureau of Prisons for a competency evaluation.
At the competency hearing on March 16, 2015, Pryor objected to being in court “under direct duress and coercion,” but in dicated that he was appearing “ in propria persona .” The magistrate judge observed that he had now appoin ted Upshaw as Pryor’s counsel, at least for the duration of the competency hearing, and Upshaw noted that Pryor did not wish for him to speak on his behalf. Pryor objected, but was warned that he would be removed from the courtroom if he continued to speak out of turn. Based on th e competency report, the court found that Pryor was competent to proceed in his case. When th e court was advising Pryor of his rights, Pryor repeatedly answered questions with questions of his own. The court stated: “If you are either unable or unwilling to answer my questions, I will have no alternative but to keep Mr. Upshaw on as counsel. You cannot represent yourself if you will not cooperate with the Court in answering questions.” The court directly asked Pryor, “do you wish to represent yo urself or do you wish to have counsel represent you?” Pr yor answered “I will be myself” and again challenged the court’s jurisdiction. The court rep eated the question, and Pryor asked if the judge was offering him a contract. 3 The court repeated itself one final time and warned that if Pryor did not answer the question, “I’m going to simply retain Mr. Upshaw as your attorney.” Pryor objected to being called “Mr. Pryor,” and the cour t appointed Upshaw as counsel, to which Pryor immediately and repeatedly objected.

3 Many sovereign citizens believe that by entering into a contract with the federal government, they lose their status as sovereign citizens and provide courts with jurisdiction over them. See Francis X. Sullivan, Comment, The “Usurping Octopus of Jurisdictional/Authority”: Th e Legal Theories of the Sovereign Citizen Movement , 1999 Wis. L. Rev. 785, 802 (“Once the Sovereign Citizen contracts with the federal government, he unknowingly surrenders his personal sovereignty and agrees to be bound by the illegitimate federal law.”). Indeed, a number of sovereign citizens believe that using a lawyer also constitu tes acceptance of the jurisdicti on of the court via contract with the government. See, e.g. , Charles E. Loeser, From Paper Terrorists to Cop Killers: The Sovereign Citizen Threat , 93 N.C. L. Rev. 1106, 1126 (2015); Taj Tarik Bey, 6-Week Civics Class: Class 4, at 2, http://rvbeypublications.com/sitebuildercontent/sitebuilderfile s/webcivicsclass4.pdf (last visited on Oct. 27, 2016) (“If one hires a Lawyer or an Attorneyof the Bar Association (A.B.A.) to ‘ re-present ’ you, then you have surrendered your Birthrights to that officer of the court! Jurisdiction is then assumed, and the officers of the court go straight to Adjudicating against you with sanctions , fines , and jail time , or both!”).No. 15-2123 United States v. Pryor Page 5

Pryor continued to object throughout the pro ceeding to the court or Upshaw taking any action on his behalf. The magistra te judge announced that any further objecti ons would result in Pryor being removed from the courtroom and adde d, “If you’re represented by counsel, that’s your doing. You have no one to blame but yourself for the situation that you’re in,” explaining that Pryor would not answer his questions and as such he could no longer “speak for [him]self.” But when the court asked Upshaw whether he ha d anything to offer the court, Pryor objected again: “I am not a minor. He will not speak for me.” Pryor was escorted out of the courtroom.
The next day at the initial pretrial confer ence, Pryor again continued his objections to Upshaw’s representation of him. When told by the court that he was now represented by counsel, Pryor objected: “I have no contr acts with this man. . . . I am here in propria

persona . . . .” The magistrate judge informed Pryor that if he spoke to the court directly rather than through counsel, he would be removed from the courtroom. Despite this warning, Pryor twice objected to Upshaw’s representation. On March 19, Pryor submitted an “Affidavit of truth” to the court, disclaiming the court’s ju risdiction, announcing that he had no contracts with any corporation or the United States of America, and stating “Geoffrey Upshaw will not represent me.” The document was rejected as not having co me through appointed counsel. Pryor continued to submit affidavits asserting his desire to appear in propria persona and contesting the court’s jurisdiction. After a furthe r message to the court a sserting his desire to proceed in propria persona (among other arguments), the court entered an order to automatically reject letters from Pryor and “advise[d] and recomme nd[ed] that Defendant Pryor consult with his counsel regarding this and all other aspects of the case.” Pryor continued to send letters objecting to deprivation of his ability to be in propria persona , jurisdiction, and other matters.

Just over two months later at the final pretrial conference of May 20, 2015, now before Chief Judge Robert Jonker, Pryor continued hi s objections to Upshaw acting as his counsel, among other objections. He interrupted the cour t on numerous occasions to raise his objections, which were often framed in legalistic—alb eit unorthodox—terms. His appointed counsel challenged the proposed voice identification by Bato ra and Shattuck on the basis that proper
foundation could not be establishe d and the officers were basing their identification on memoryNo. 15-2123 United States v. Pryor Page 6

alone, rather than on recordings that might have been made of their phone calls with Taz. The
court denied the motion.
At trial, Pryor raised objections to counsel and jurisdiction. After a jury trial, Pryor was convicted of conspiracy to distribute 100 grams or more of heroin. Pryor was sentenced on September 15, 2015, where he stated once again that “[t]he magistrate judge . . . appointed Geoffrey Upshaw over my objection” and made furt her objections to the court. His appointed counsel objected to th e quantity of drugs listed on the se ntencing report, the leadership sentencing enhancement, and the firearm enhancemen t, as well as to the report’s listing of Pryor
as “black or African-American” rather than “Moor s American,” his name appearing as Jermaine Pryor, and a Social Security number being relate d to him. The court denied the objections, finding that Pryor “ha[d] never e ngaged the process sufficiently to establish, assert, and enjoy the privilege of representing himself,” and se ntenced Pryor to 235 months in custody.

II
We begin with the threshol d issue of jurisdiction. Hagans v. Lavine , 415 U.S. 528, 538 (1974). Pryor challenges the jurisdiction of this court and the court below on a number of grounds. First, Pryor insists that he was tried for a state crime, which would deprive the federal courts of jurisdiction. But he was charged under 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), federal statutes properly passed by Congress that provide this court with federal-question subject-matter jurisdiction. See 18 U.S.C. § 3231 (2012). Next, Pryor argues that the United States lacks standing because ther e is no injured party in this cons piracy case. There is standing, however, because “the injury to [the United Stat es’] sovereignty arising from violation of its laws . . . suffices to support a crim inal lawsuit by the Government.” Vt. Agency of Nat. Res. v.
United States ex rel. Stevens , 529 U.S. 765, 771 (2000). Pryor also contends that the court did not establish personal jurisdiction over him and attempted to preserve this argument by indicating that he was appearin g specially before the distri ct court to contest personal jurisdiction. Federal courts ha ve personal jurisdiction over cr iminal defendants before them, whether or not they are forc ibly brought into court. See United States v. Alvarez-Machain , 504 U.S. 655, 660–62 (1992); Frisbie v. Collins , 342 U.S. 519, 522 (1952). We have jurisdiction over this appeal through 28 U.S.C. § 1291 (2012).No. 15-2123 United States v. Pryor Page 7

On a final note, Pryor also complained that he was in an Article II I court yet not before an Article III judge, which (as he did not waive th e issue), if true, may c onstitute a violation of
Article III. See Roell v. Withrow , 538 U.S. 580, 588–89 (2003); United States v. Ford , 824 F.2d 1430, 1435 (5th Cir. 1987) (en banc) (“It is suffi cient here to simply observe that such a [situation] would pose grave constitutional issues.” ). However, the district judge who presided below, the Honorable Robert J. Jonker, is a duly appointed Artic le III judge, as are the members of this panel. 153 Cong. Rec. 18210 (2007) ; 151 Cong. Rec. 12171 (2005); 132 Cong. Rec. 3430 (1986); 131 Cong. Rec. 27728 (1985). Likewise, the district court and this court are constitutionally created Article III courts. 28 U.S.C. §§ 41, 43, 102. As a result, the case is properly before us and we may decide this ma tter without fear of c onstitutional impropriety.

III
A. Right of Self-Representation
Although the issue has come before us on seve ral occasions, “Sixth Circuit jurisprudence concerning the standard of review applicable to claims asserting vi olations of the right to selfrepresentation is confused.” United States v. Evans , 559 F. App’x 475, 478 (6th Cir. 2014). We
have at times reviewed denials of motions for self-representation de novo, United States v.
Cromer , 389 F.3d 662, 679 (6th Cir. 2004), and for abuse of discretion, Robards v. Rees , 789 F.2d 379, 384 (6th Cir. 1986). We have also held that de novo review is required for review
of a waiver of a c onstitutional right. United States v. Ross , 245 F.3d 577, 583 (6th Cir. 2001).
Because we believe that under either standard of review the district court’s decision was justified, we will once again defer the determination of the proper standard of review for this question.
The Sixth Amendment guarantees the right of the accused “to have the assistance of
counsel for his defense.” U.S. Const. amend. VI. But it also “implies a right of selfrepresentation.” Faretta v. California , 422 U.S. 806, 820 (1975). “To thrust counsel upon the accused, against his considered wish, . . . violates the logic of the Amendmen t. In such a case, counsel is not an assistant, but a master . . . .” Ibid. As the right to self-representation and the right to counsel are “two faces of the same coi n,” the assertion of one necessarily requires theNo. 15-2123 United States v. Pryor Page 8

waiver of the other. United States v. Conder , 423 F.2d 904, 908 (6th Cir. 1970) (quoting United
States v. Plattner , 330 F.2d 271, 276 (2d Cir. 1964)). Becaus e the “dangers and disadvantages of self-representation during trial ar e so substantial,” a court must make a “searching or formal inquiry” before permitting a waiver of the right to counsel (although no such inquiry is required for the correlative waiver of right to self-representation 4 ). Hill v. Curtin , 792 F.3d 670, 677 (6th Cir. 2015) (en banc) (citation omitted). The objec t of the inquiry is to establish that the defendant “knowingly, intelligently, and voluntarily” waived the right and “his choice is made with eyes open.” Fowler v. Collins , 253 F.3d 244, 249 (6th Cir. 2001) (quoting Faretta , 422 U.S. at 835). “[N]o degree of legal knowledge is required” to a ssert the right, so long as the defendant appreciates what he is forgoing. United States v. McDowell , 814 F.2d 245, 250 (6th Cir. 1987).

In the Sixth Circuit, we have mandated a formal inquiry, using our supervisory powers, that federal district judges must undertake to determine whether a waiver is proper. Id. at 249– 50. Where a request to self-represent is clear, unequivocal, and timely, the court “must ask the defendant a series of questions drawn from, or substantially similar to, the model inquiry set
forth in the Bench Book for United St ates District Judges .” United States v. McBride , 362 F.3d 360, 366 (6th Cir. 2004); see also Cromer , 389 F.3d at 682.
After Pryor was adjudged competent, the magist rate judge attempted to inform him of his rights. To almost every question, however, Pr yor responded with a quest ion of his own, mostly addressed at the court’s jurisdic tion. When the magistrate judge asked directly whether Pryor wished to represent himself or have counsel represent him, the closest Pryor came to acknowledging that he wished to re present himself was his statement “I will be myself.” This statement can hardly be called a clear assertion of the right to self-representation, especially given Pryor’s failure to confirm that meaning of his statement upon repeated inquiries by the judge. We have found, where a defendant “repeat edly interrupted the judge, complained, and answered almost every question by contending that he did not understand,” a district court’s

4 Some courts have justified the lack of inquiry by asserting that the right to counsel “attaches automatically and must be waived affirmatively to be lost, while the [right to self-representation] does ‘not attach unless and until it [i]s asserted .’” Stano v. Dugger , 921 F.2d 1125, 1143 (11th Cir. 1991) (en banc) (second alteration in original) (quoting Dorman v. Wainwright , 798 F.2d 1358, 1366 (11th Cir. 1986)); see also Brown v. Wainwright , 665 F.2d 607, 610 (Former 5th Cir. 1982) (en banc).No. 15-2123 United States v. Pryor Page 9

denial of a motion for self-representation would not be reversed under anabuse-of-discretion
standard. United States v. Carradine , 621 F.3d 575, 579 (6th Cir. 2010), abrogated on other grounds by Dorsey v. United States , 132 S. Ct. 2321 (2012). Pryor’s refusal to prov ide a straight answer to the thrice-repeated question of whethe r he wished to be represented by counsel or by himself was a rejection of further inquiry into his waiver of couns el and justified the magistrate judge’s conclusion of the colloquy. A court faci ng such resistance can ha rdly be expected to proceed through the questions in anticipation that the defendant may change his mind and begin responding. See, e.g. , Carradine , 621 F.3d at 579.
This result is fully consistent with Faretta and similar cases. Faretta itself noted that “[t]he right of self-repres entation is not a license to abuse the dignity of the cour troom . . . [nor] a license not to comply with relevant rules of procedural and substantive law.” 422 U.S. at 834
n.46. The Faretta Court used Illinois v. Allen to explain this restriction on the right of selfrepresentation. Allen had held that an “obstreperous de fendant” could be removed from the courtroom “until he promises to conduct himself properly.” Illinois v. Allen , 397 U.S. 337, 343– 44 (1970); see also Faretta , 422 U.S. at 834 n.46. If a defendant may be removed from a courtroom for his disorderly behavior and waive hi s right to be present attrial, so too can he waive his right to act pro se and thus have appoint ed counsel act in his stead while he is removed
from the courtroom. See Faretta , 422 U.S. at 834 n.46; United States v. Dougherty , 473 F.2d 1113, 1125 (D.C. Cir. 1972). The refusal to provi de answers to the colloquy is similar to arefusal to attend proceedings, and the court may treat it as a waiver of the right to selfrepresentation. But this court has held that “no action agains t an unruly defendant is permissible except after he has been fully and fairly informed that his conduct is wr ong and intolerable, and warned of the possible consequences of continued misbehavior.” Gray v. Moore , 520 F.3d 616, 623 (6th Cir. 2008) (quoting Allen , 397 U.S. at 350 (Brennan, J., concurring)).
Here, the magistrate judge, after his attempts to have Pryor expressly state he wished to represent himself, clearly warned Pryor that failur e to respond to the ques tion would result in the appointment of Upshaw as his attorney. Pr yor’s answer was nonre sponsive, and so the magistrate judge permissibly appointed counsel and ended the colloquy. See Carradine , 621 F.3d at 579; cf. United States v. Knight , 896 F.2d 1369, 1990 WL 18055, at *5 (6th Cir.No. 15-2123 United States v. Pryor Page 10

1990) (unpublished table decision) (per curiam) (“Th e transcript demonstrates that quizzing [the defendant] as McDowell directs would have been futile.”); Raulerson v. Wainwright , 732 F.2d 803, 809 (11th Cir. 1984) (holding th e right to self-representation waived where the defendant
left the courtroom in the middle of the Faretta inquiry).
This finding is not the end of Pryor’s clai m, however, as defendants may assert the right to self-representation later in proceedings, where the assertion is timely and not an attempt to delay or manipulate proceedings. See, e.g. , Moore v. Haviland , 531 F.3d 393 (6th Cir. 2008) (holding that the court wa s required to perform a Faretta inquiry even after the defendant had begun trial with counsel); Robards , 789 F.2d at 383. This case pres ents the question of whether a defendant who has waived his right through a refusal to engage with court proceedings and procedure can reinvoke his right without a demonstration or prom ise that the conduct that caused
the initial waiver will not reoccur. Because we find that a defendant w ho has thus waived his right must make some indication that he will e ngage with the court at least to the extent of answering procedural questions such as the colloquy and that Pr yor made no such indication, we need not decide whether Pryor’s sc ores of objections to counsel’s actions and claims that he was appearing “ in propria persona ” 5 suffice to constitute a clear and unequivocal invocation of the right to self-representation. See Cromer , 389 F.3d at 682; United States v. Pittman , 816 F.3d 419, 426 (6th Cir. 2016) (finding that where a defendant rejects counsel, it may be the same as a choice to self-represent).
Having waived his self-representation right previously by reason of his nonanswers, Pryor needed to make a good-faith showing th at the problem would not reoccur. In Allen , the defendant agreed to behave and was permitted to return (and was in fact thrown out for disruption and then readmitted once again later when he made a new promise). See 397 U.S. at 340–41. Absent that promise, the court had no r eason to expect that Pryor would change his mind and answer the questions ra ther than treat the colloquy as another “offer to contract” and reject the inquiry anew. Havi ng set the status quo himself, Pryor bore the light burden of showing that his behavior had cha nged and he would proceed with the Faretta inquiry.

5 “ In propria persona ” is legally equivalent to “pro se” and was treated as such in Faretta

. See Faretta , 422 U.S. at 816, 839; In propria persona , Black’s Law Dictionary (10th ed. 2014) (“See pro se.”).No. 15-2123 United States v. Pryor Page 11

Courts dealing with defendants seeking to represent themselves face a dilemma: the potential for an unconstitutional denial of the right to counsel if the right to self-representation is too quickly provided or reversal for unconstitutional denial of the right to self-representation if the right to counsel is too vigor ously shielded. The method that our court has devised to avoid the predicament is to provide an opportunity for defendants to indicate their desire to waive the right to counsel and then to undertake a thorough review of the detriments and disadvantages that accompany such a waiver. Where the defendant through his own actions does not permit the
court to ascertain whether a waiver is knowing or vol untary, or even if he means to waive at all, he cannot use the court’s failure to acknowledge th e waiver later to take a mulligan and try his case again if he loses. This is not to say thatan obstreperous defendant has forever waived his right to self-representation; on the contrary, wh ere “he promises to conduct himself properly,”
the court should reinves tigate the invocation. Allen , 397 U.S. at 344. Pryor, however, made no such promise and instead simply continued to make objections and in terrupt the court. Accordingly, the district court had no indication that he would comply with and complete the colloquy this round, and Pryor’s right to self-representation remained waived.
B. Admission of Voice-Identification Testimony
Pryor also argues that the admission of the voice-identification testimony of Deputy
Shattuck and Officer Batora was in error. We review the district cour t’s admission of evidence
for abuse of discretion. See United States v. DeJohn , 368 F.3d 533, 542 (6th Cir. 2004). “The standard for the admissibility of an opinion as to the identity of a speaker is merely that the identifier has heard the voice of the alleged speaker at any time.” United States v. Cooke , 795 F.2d 527, 530 (6th Cir. 1986) (quoting United States v. Rizzo , 492 F.2d 443, 448 (2d Cir. 1974)).

It is clear that the di strict court did not ab use its discretion. Fi rst, although Shattuck’s initial conversations with “Taz” were without pr ior knowledge of Pryor’s voice, his listening to the phone calls and watching the video recordi ng made while Pryor was incarcerated provided him with a reliable exemplar. Defense counsel admitted that the recordings were of Pryor, acknowledging “we don’t dispute that the voice on the jailhouse r ecording is the voice of the defendant.” The order of listening to voices (the voice to be compared and the exemplar) is notNo. 15-2123 United States v. Pryor Page 12

dispositive of the admissibility of the testimony, as Federal Rule of Evidence 901(b)(5) permits testimony based on “hearing the voice at any time. ” Fed. R. Evid. 901(b )(5) (emphasis added);
see also United States v. Simms , 351 F. App’x 64, 69 (6th Cir. 2009). Additionally, because Shattuck was able to compare th e telephone calls with the video r ecording, he could confirm that those calls were made by the man in the video recording. Even Pryor’s argument that Shattuck could not confirm the accuracy of Detective Delaney’s assertion that the jail calls were from Pryor is unavailing; Shattuck identified Pryor in court, e ssentially making the connection between Pryor, the phone calls, and video. There is no requirement that the exemplar be from a
face-to-face conversation. See, e.g. , United States v. Mendiola , 707 F.3d 735, 741 (7th Cir. 2013). Nor must the witness be qualified as an expert. See, e.g. , United States v. Recendiz , 557 F.3d 511, 527 (7th Cir. 2009); cf. United States v. Harris , 786 F.3d 443 (6th Cir. 2015) (finding lay testimony permissibl e for handwriting comparison). Batora’s conversations were made after listening to the twenty-minute reco rding. Again, because defense counsel admitted that the recording was of Pryor, the recordings were a proper exemplar. Thus, Batora could compare the voice in the recording with his pe rsonal recollection of the voice on the phone calls that he made later to set up drug buys.
Pryor also argues that the conversations that Shattuck and Batora had with Taz were too brief to establish familiarity with the voice. We found in United States v. Cooper , 868 F.2d 1505 (6th Cir. 1989), that the district court’s admissi on of testimony by an officer who had listened to tape recordings of a conversation with a voice to be identified and spoken with a defendant for thirty seconds was not an abuse of discretion. Id. at 1519. There is no reason why it should matter whether the exemplar or the voice to be compared is of shor t duration; thus, relying on the multiple minute-long conversations that Shattu ck and Batora had with Taz to admit the testimony is not an abuse of discretion.
Finally, Pryor contends that the failure of the police to record the phone calls negotiating the purchase of heroin should preclude the testimony. Although such recordings would be helpful to a court and jury, they are not required. See Simms , 351 F. App’x at 69 (permitting testimony identifying a voice on a recording where witness had la st heard unrecorded exemplarNo. 15-2123 United States v. Pryor Page 13

two years previously). In sum, the court did not abuse its discretion in permitting the voiceidentification testimony.
C. Sentencing Enhancement for Possession of a Firearm in Furtherance of a Drug Crime
Pryor’s Guidelines sentencing range was e nhanced by application of USSG §2D1.1(b)(1), which provides that where a defendant is convict ed of a conspiracy to traffic under 21 U.S.C. § 841, “[i]f a dangerous weapon (i ncluding a firearm) was possessed, increase by 2 levels.” USSG §2D1.1(b)(1). “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. §2D1.1 comment. n.3(A). Pryor argues that there was insufficien t evidence to demonstrate that he possessed a
firearm in connection with his drug-trafficking offense. We review a district court’s interpretations of the Sentencing Guidelines de novo and factual fi ndings at sentencing for clear

error. United States v. Greeno , 679 F.3d 510, 514 (6th Cir. 2012). “A district court’s finding that a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly
erroneous standard of review.” United States v. Benson , 591 F.3d 491, 504 (6th Cir. 2010) (quoting United States v. Darwich , 337 F.3d 645, 664 (6th Cir. 2003)).
The application of §2D1.1(b)(1) involves a tw o-part test. First, the government has the burden of demonstrating “by a preponderance of th e evidence that ‘(1) the defendant actually or constructively “possessed” the weapon, and (2) such possession was during the commission of
the offense.’” United States v. Catalan , 499 F.3d 604, 606 (6th Cir. 2007) (quoting United States
v. Hill , 79 F.3d 1477, 1485 (6th Cir. 1996)). Once that burden is met, the enhancement applies unless the defendant can present evidence to showthat it was “‘clearly improbable’ that the weapon was connected to the offense.” Greeno , 679 F.3d at 514 (quoting Catalan , 499 F.3d at 606).
It is clear that Pryor posse ssed a firearm during the conspiracyto traffic in heroin. He was pulled over after leaving a hou se where heroin had been sold, having collected the proceeds of a drug transaction. There is no need for the government to demonstrate the connection
between the firearm and the crime to shift the burden. See United States v. Dixon , 262 F. App’x 706, 711 (6th Cir. 2008); United States v. Sanchez , 928 F.2d 1450, 1460 (6th Cir. 1991) (“TheNo. 15-2123 United States v. Pryor Page 14

government does not have to produce any further evidence establishing a connection between the weapon and the offense for § 2D1.1(b)(1) enhancement to be appropriate.”), abrogated on other grounds by United States v. Jackson-Randolph , 282 F.3d 369 (6th Cir. 2002). In Dixon , the
firearm was in a car that the defendant drove to the meeting place and le ft in an adjacent lot before walking to a building to perform a drug pur chase. Those circumstances were sufficient to
shift the burden to the defendant. Much like in United States v. Moses , 289 F.3d 847 (6th Cir. 2002), Pryor “kept [a] firearm[] in his [car] during th e period of the conspiracy. . . [and] used his [car] to perform acts in furthe rance of the conspiracy; namel y,” to collect drug proceeds. Id. at 850. The government has met its burden.
Once the burden shifts to the defendant, he must demonstrate that it was “clearly improbable” that the weapon was connected to the offense. In examining the probability of a connection, the court weighs a num ber of factors, including:
(1) the type of firearm involved; (2) the accessibility of the weapon to the defendant; (3) the presence of ammunition; (4) the proximity of the weapon to illicit drugs, proceeds, or paraphernalia ; (5) the defendant's evidence concerning the use of the weapon; and (6) whether the defendant was actually engaged in drug-trafficking, rather than me re manufacturing or possession.

Greeno , 679 F.3d at 515 (citations omitted). Here, the weapon was a Glock pistol, not an antique musket or hunting rifle that might be impractic al in connection with drug trafficking. The weapon was concealed on the defendant and was lo aded. Pryor was arrest ed with the proceeds on him in the car while departing from the loca tion of a drug transaction. While it is possible that Pryor happened to be carry ing his legally licensed firearm with him without any connection to the conspiracy, it is just as likely (if not far more so) that he brought the gun to protect himself
and his trade. Cf. United States v. Penaloza , 648 F. App’x 508, 519 (6th Cir. 2016); United
States v. Shults , 68 F. App’x 648, 654 (6th Ci r. 2003). This possibility is insufficient to show
that the connection to the o ffense was clearly improbable.
Because Pryor cannot demonstrate that th e district court committed clear error in applying the sentencing enhancement, we affirm the district court’s sentence.No. 15-2123 United States v. Pryor Page 15

IV
There is something peculiar in the fact that the only reason that Jermaine Pryor is able to raise his right to self-representation claims is because his appointed counsel is raising it for him; otherwise, Pryor would insist only on his juri sdictional defense. Here, however, neither argument is compelling. The Constitution provides defendants the choice to either use the assistance of counsel or go it alone. While we must be vigilant against re moving that right to the choice, Pryor himself refused to make the choice or engage the court. Where a court has tried and failed to perform a colloquy due directly to the defendant’s failure to cooperate and that
defendant has not made an indicatio n that he will cooperate in the future, the court may deem the right waived. The district court was justified in denying the reque st to proceed pro se, the voice testimony was properly admitted, and the senten cing enhancement was properly applied. For these reasons, we AFFIRM the judgment of the district court.