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 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

JERMAINE BENJAMIN PRYOR, 

Defendant-Appellant. 

┐

│

│

│

│

│

│

│

┘

No. 15-2123 

Appeal from the United States District Court 

for the Western District of Michigan at Grand Rapids. 

No. 1:14-cr-00208—Robert J. Jonker, 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 involving the invocation of the right to selfrepresentation, voice-identification testimony, and a sentencing 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. The 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 give a location for the proposed transaction and 

inform members of the conspiracy of 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 February 2014 regarding buying heroin. Following a 

drug purchase on February 20 by the informant, police maintained surveillance on the residence 

where the sale occurred. While a search warrant was being drafted, a Dodge Magnum arrived 

and Pryor entered the house. Police observed Pryor through the 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 inside his waistband. Pryor informed the officers that he had a 

proper license for the weapon, which they verified. After he was handcuffed and patted down, 

the police discovered wads of money in his pockets. Pryor was arrested for his connection to the 

drug transaction. The police later found in the car a cell phone with a disconnected battery. 

They reconnected the battery and turned the phone on. Shattuck called the number for Taz and 

the phone rang. 

Pryor made thirty-three phone calls while in jail, which were recorded. In addition, Pryor 

had a recorded virtual meeting with a visitor via video feed. Pryor 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 the video recording (a total of about four hours 

of conversation) in preparation for further investigation. In watching 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 earlier, and that the voices on the 

recordings were the same as that of the prisoner in the video. In late April 2014, Taz called 

Shattuck and the two spoke briefly. Shattuck then made four controlled drug purchases in July 

2014, each time contacting Taz over the phone and discussing the purchase details. 

Officer Daniel Batora was also involved in the investigation of the conspiracy. Batora 

listened to a twenty-minute recording of Pryor’s conversation in the last week of April 2014 

prior to placing a call on May 1 to a line thought 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 object 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” represent 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 then inquired if Pryor was 

asking the court to appoint counsel, and Pryor denied 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 own 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” movement, 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 Gov’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 referred 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 indicated that he was appearing “in propria persona.” The 

magistrate judge observed that he had now appointed 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 the competency report, the court found that Pryor 

was competent to proceed in his case. When the 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 yourself or do 

you wish to have counsel represent you?” Pryor answered “I will be myself” and again 

challenged the court’s jurisdiction. The court repeated 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 court 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”: The 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 constitutes acceptance of the jurisdiction 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/sitebuilderfiles/webcivicsclass4.pdf (last visited on Oct. 27, 2016) 

(“If one hires a Lawyer or an Attorney of 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 proceeding to the court or Upshaw taking any 

action on his behalf. The magistrate judge announced that any further objections would result in 

Pryor being removed from the courtroom and added, “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 had 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 conference, 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 contracts 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 jurisdiction, 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 come through appointed counsel. 

Pryor continued to submit affidavits asserting his desire to appear in propria persona and 

contesting the court’s jurisdiction. After a further message to the court asserting 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 recommend[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 his objections to Upshaw acting as his counsel, 

among other objections. He interrupted the court on numerous occasions to raise his objections, 

which were often framed in legalistic—albeit unorthodox—terms. His appointed counsel 

challenged the proposed voice identification by Batora and Shattuck on the basis that proper 

foundation could not be established and the officers were basing their identification on memory 
No. 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 further objections to the court. His appointed 

counsel objected to the quantity of drugs listed on the sentencing report, the leadership 

sentencing enhancement, and the firearm enhancement, as well as to the report’s listing of Pryor 

as “black or African-American” rather than “Moors American,” his name appearing as Jermaine 

Pryor, and a Social Security number being related to him. The court denied the objections, 

finding that Pryor “ha[d] never engaged the process sufficiently to establish, assert, and enjoy the 

privilege of representing himself,” and sentenced Pryor to 235 months in custody. 

II 

We begin with the threshold 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 there is no injured party in this conspiracy case. There is standing, 

however, because “the injury to [the United States’] sovereignty arising from violation of its 

laws . . . suffices to support a criminal 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 appearing specially before the district court to contest personal 

jurisdiction. Federal courts have personal jurisdiction over criminal defendants before them, 

whether or not they are forcibly 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 III court yet not before 

an Article III judge, which (as he did not waive the issue), if true, may constitute 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 sufficient 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 Article 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 matter without fear of constitutional impropriety. 

III 

A. Right of Self-Representation 

 Although the issue has come before us on several occasions, “Sixth Circuit jurisprudence 

concerning the standard of review applicable to claims asserting violations 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 constitutional 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 Amendment. 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 coin,” the assertion of one necessarily requires the 
No. 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)). Because the “dangers and disadvantages of 

self-representation during trial are 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-representation4). Hill v. Curtin, 792 F.3d 670, 677 (6th 

Cir. 2015) (en banc) (citation omitted). The object 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 assert 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 States 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 magistrate judge attempted to inform him of his 

rights. To almost every question, however, Pryor responded with a question of his own, mostly 

addressed at the court’s jurisdiction. 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 represent 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 “repeatedly 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 an abuse-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 provide a straight 

answer to the thrice-repeated question of whether he wished to be represented by counsel or by 

himself was a rejection of further inquiry into his waiver of counsel and justified the magistrate 

judge’s conclusion of the colloquy. A court facing such resistance can hardly 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-representation is not a license to abuse the dignity of the courtroom . . . [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 defendant” 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 his right to be present at trial, so too can he 

waive his right to act pro se and thus have appointed 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 provide answers to the colloquy is similar to a 

refusal 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 against an unruly defendant is permissible 

except after he has been fully and fairly informed that his conduct is wrong 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 failure to respond to the question would result in the 

appointment of Upshaw as his attorney. Pryor’s answer was nonresponsive, 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) (“The 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 the 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 claim, 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 was required to perform a Faretta inquiry even after the defendant had 

begun trial with counsel); Robards, 789 F.2d at 383. This case presents 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 promise that the conduct that caused 

the initial waiver will not reoccur. Because we find that a defendant who has thus waived his 

right must make some indication that he will engage with the court at least to the extent of 

answering procedural questions such as the colloquy and that Pryor made no such indication, we 

need not decide whether Pryor’s scores 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 that 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 reason to expect that Pryor would change his 

mind and answer the questions rather than treat the colloquy as another “offer to contract” and 

reject the inquiry anew. Having set the status quo himself, Pryor bore the light burden of 

showing that his behavior had changed 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 vigorously 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 voluntary, or even if he means to waive at all, 

he cannot use the court’s failure to acknowledge the waiver later to take a mulligan and try his 

case again if he loses. This is not to say that an obstreperous defendant has forever waived his 

right to self-representation; on the contrary, where “he promises to conduct himself properly,” 

the court should reinvestigate the invocation. Allen, 397 U.S. at 344. Pryor, however, made no 

such promise and instead simply continued to make objections and interrupt 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 court’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 district court did not abuse its discretion. First, although Shattuck’s 

initial conversations with “Taz” were without prior knowledge of Pryor’s voice, his listening to 

the phone calls and watching the video recording 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 recording is the voice of the 

defendant.” The order of listening to voices (the voice to be compared and the exemplar) is not 
No. 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 the telephone calls with the video recording, 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, essentially 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 permissible for handwriting comparison). Batora’s conversations were 

made after listening to the twenty-minute recording. 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 personal 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 admission 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 short duration; thus, relying on the 

multiple minute-long conversations that Shattuck 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 last heard unrecorded exemplar 
No. 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 enhanced by application of USSG §2D1.1(b)(1), 

which provides that where a defendant is convicted of a conspiracy to traffic under 21 U.S.C. 

§ 841, “[i]f a dangerous weapon (including 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 insufficient 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 findings 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 two-part test. First, the government has the 

burden of demonstrating “by a preponderance of the 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 show that 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 possessed a firearm during the conspiracy to traffic in heroin. He 

was pulled over after leaving a house 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) (“The 
No. 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 left in an adjacent lot 

before walking to a building to perform a drug purchase. 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 the period of the conspiracy . . . [and] used his 

[car] to perform acts in furtherance of the conspiracy; namely,” 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 number 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 mere 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 impractical in connection with drug trafficking. The 

weapon was concealed on the defendant and was loaded. Pryor was arrested with the proceeds 

on him in the car while departing from the location of a drug transaction. While it is possible 

that Pryor happened to be carrying 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 Cir. 2003). This possibility is insufficient to show 

that the connection to the offense was clearly improbable. 

 Because Pryor cannot demonstrate that the 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 jurisdictional 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 removing 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 indication that he will cooperate in the future, the court may deem the 

right waived. The district court was justified in denying the request to proceed pro se, the voice 

testimony was properly admitted, and the sentencing enhancement was properly applied. For 

these reasons, we AFFIRM the judgment of the district court.