RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0025p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

C ARLOS E LLIS P OWELL (14-2506); E RIC J EROME P OWELL (14-2507); E ARNEST L EE P ROGE (15-1724), Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ ┘ Nos. 14-2506/2507/15-1724

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:12-cr-20052—Stephen J. Murphy III, District Judge. Argued: August 3, 2016 Decided and Filed: February 6, 2017 Before: GUY, BOGGS, and MOORE, Circuit Judges

_________________ COUNSEL

ARGUED: N.C. Deday LaRene, LARENE & KRIG ER, P.L.C., Detroit, Michigan, for Appellant in 14-2506. Domnick J. Sorise, Detroit, Michigan, for Appellant in 14-2507. Kevin M. Carlson, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant in 15-1724. Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: N.C. Deday LaRene, LARENE & KRIGER, P.L.C., Detroit, Michigan, for Appellant in 14-2506. Domnick J. Sorise, Detroit, Michigan, for Appellant in 14-2507. Kevin M. Carlson, Meli ssa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Mich igan, for Appellant in 15- 1724. Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. Carlos Ellis Powell, White Deer, Pennsylvania, pro se. GUY, J., delivered the opinion of the court in which BOGGS, J, joined, and MOORE, J., joined in part. MOORE, J. (pp. 28–36), delive red a separate opinion c oncurring in part and dissenting in part. 

### >Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 2

_________________ OPINION

_________________ RALPH B. GUY, JR., Circuit Judge. Defendants Carlos Powell, Eric Powell, and Earnest Proge, Jr., were tried together and convi cted of offenses arising out of a large-scale narcotics distribution operation in Detroit, Michigan. 1 First, all three defendants challenge the district court’s orders denyi ng their motions to suppress evidence derived from: (1) the collection of cellular-phone identification and location information; (2) the use of a GPS tracking device; and (3) the monitoring of video cameras installed on nearby utility poles. Second, raising Sixth Amendment claims, Carlos Powell argue s that he was denied his right to represent himself, and Earnest Proge contends that he wa s denied counsel of his choice. Third, Earnest Proge raises separate claims of error, including challenges to the sufficiency of the evidence, the jury instructions, and an error in the judgment entered against him. Finally, Carlos Powell has raised additional claims in a pro se brief. For the reasons that follow, we affirm the denial of the defendants’ motions to suppress; affirm the judgments entered ag ainst Carlos and Eric Powell, respectively; and vacate the judgment and remand for further proceedings consistent with this opinion with respect to Earnest Proge only.

I.
Overwhelming evidence established that Carlos Powell ran a lucrative narcotics distribution conspiracy and a re lated money-laundering conspiracy with his brother Eric Powell in Detroit, Michigan. The Powells’ drug op eration largely evaded detection until a DEA investigation in Arizona snared a middleman named Ted Morawa. Morawa had received large quantities of marijuana, cocaine, and heroin from Mexico and arranged or facilitated the transportation of drugs and cash to and from customers in the Midwest. Morawa decided to cooperate with the government in early 2010, and the information he provided included identifying Carlos Powell, a/k/a “50,” as his “number one” customer . At trial, Morawa described meeting with Carlos Powell a number of times and arranging for large quantities of marijuana,

1 Kenneth Daniels was also tried with these defendants, and his appeal was heard separately (No. 14-2242).Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 3

cocaine, and heroin to be transported to him be ginning in 2006. The investigation that followed led to the charges in this case.
Starting in March 2010, DEA agen ts in Detroit gathered evid ence by: obtaining warrants for prospective real-time cell-phone location data ; using a cell-site simu lator to identify unknown cell phones used by Carlos Powell, Eric Powell, and Juan Valle; placing a GPS tracking device on Eric Powell’s Chevy Silverado pickup truck; and monitoring three video cameras installed on public utility poles. The evidence at trial includ ed recordings from pole cameras installed near three “stash” locations: a house on Conley Street in Detroit, a house on Stricker Avenue in Eastpointe, and a warehouse on Sherwood Avenue in Center Line, Michigan.
The DEA’s surveillance—electronic and in-p erson—led agents to request that the Michigan State Police make four tr affic stops that resulted in the seizure of drugs and/or cash on June 23, June 28, September 17, and October 22, 2010. Defendants did not challenge the validity of the stops themselves, but argued that the evidence obtai ned as a result of those stops should be suppressed as fruit of ear lier illegal searches or seizures.
On June 23, ten kilograms of heroin was seized from Benny Whigham’s Volkswagen Passat when he was stopped as he returned from Chicago travel ing in tandem with Eric Powell and Earnest Proge in Eric’s Silverado. The three men had been under surveillance in Chicago, and both vehicles were followed back into Mich igan before Whigham wa s stopped. On June 28, Juan Valle met Carlos Powell at the Conley Str eet location and Valle was seen putting something in his Nissan Murano before driving away. Valle was followed and stopped, and $259,000 in cash was found in a hidden compartment of the Nissan.
On September 17, $2.2 million in cash was seized from a Ford Flex driven by Earnest Proge. Earlier that day, Carlos and Eric Powell were observed at the Stricker Avenue location. After Carlos left, Eric came out wearing latex gloves and put thr ee suitcases into a Ford Flex. Eric Powell drove the Flex to the warehouse on Sherwood Avenue, where he was joined by Proge and another man. Proge later drove away in the Flex, while Eric Powell and the other man followed in the Silverado. When the police stopped Proge, he acted very nervous, said he did not have his license, and drove away—narrowly mi ssing an officer and le ading police on a high-Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 4

speed chase—before he was finally stopped. Th e Silverado exited the highway after Proge was first stopped, and then sped away to follow the ch ase when Proge fled from the officers. Proge told the officers that there was a lot of cash in the car, but that he was only the driver. Officers seized three locked suitcases from the Flex th at contained $2.2 million in cash, a drug ledger, and a newspaper article about a drug arrest. Carlos Po well’s fingerprints were on the article, and Eric Powell’s print was on the packaging.
On October 22, suitcases containing $2 million in cash, a ledger, and 12 kilograms of cocaine were seized from a Toyota driven by Marg arita Lopez de Vallejo. She testified that she delivered drugs and transported money for a drug supplier named Paul Rodr iguez. Several days before the stop, she delivered drugs to Eric Powe ll and then waited at a hot el in Ann Arbor. On the day of the stop, Eric Powell was followed from the Stricker Avenue location to the hotel, where Proge joined him and helped transfer th e suitcases into a waiting Toyota. When de Vallejo left the hotel in the T oyota, she was followed and stoppe d by the Michigan State Police.
Finally, nine search warrants were execute d on November 17, 2010. From the Stricker Avenue location alone, the DEA seized five kilograms of heroin, $5 million in cash, several loaded firearms, seven cell phones, money counters, drug ledgers, and digital scales. Searches of three residences—two belonging to Carlos Powell and one belonging to Eric Powell—resulted in the seizure of firearms, luxury cars, expensive jewelry, and a total of more than $3 million in cash. Also, two firearms were seized from Earn est Proge’s residence. Again, defendants did not challenge the validity of those searches, but argued that the warrants were obtained with evidence derived from earlier unlawful searches or seizures.

The initial indictment was re turned in January 2012, and mo tions to suppress evidence were filed in April and November 2012. In January 2013, fourteen defendants—including Carlos Powell, Eric Powell, and Earnest Prog e, Jr.—were charged in a 29-count superseding indictment with various drug-trafficking, m oney-laundering, and firearm offenses. After extensive briefing and several evidentiary hearings , the district court denied defendants’ motions to suppress for the reasons stated in the orders it entered on January 4, May 3, and July 23, 2013. Trial was scheduled to commence in February 2014, but a stipulated 60-day extension of the pretrial and trial dates was entered into in January 2014.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 5

In February 2014, pro se documents were filed on behalf of Carlos Powell and Eric Powell asserting that they were “trust property” of the Moorish Science Temple of America and claiming to revoke their citizenship and terminate the district court’s power. Those filings were stricken by the district court because they had “no legal authority, were not filed by Defendants’ attorneys, and [did] not bear on this case.” Referencing similar prior filings in a related matter, the district court cautioned that “any further suchdocuments will be dealt with more severely.”
During the final pretrial conf erence held on March 26, 2014, th e district court severed the trial of three of the defendants and emphasized that trial of the remaining defendants would commence as scheduled on April 29, 2014. It was during this conference that Carlos Powell’s retained counsel gave the first indication that his client wanted to represent himself. The district court offered to conduct the requir ed inquiry then, or wh enever counsel would like, and agreed to defense counsel’s suggestion that the inquiry be made after he had a chance to talk with his client. Then Earnest Proge’s reta ined counsel asked to make a reco rd of her client’s decision to reject the government’s plea offer and stated that her client wanted new counsel. The district court questioned Proge about his deci sion to reject the pl ea offer, extended the time for Proge (or any of the defendants) to enter a guilty plea, and invited Proge’s attorneys to file a motion to withdraw as counsel.
Carlos Powell’s request to proceed pro se was heard and denied during the continued conference held on April 10. The government sought reconsideration of that ruling, asking that Powell be allowed to represent himself with the aid of sta ndby counsel. Although the motion was denied, it resulted in an order that clarified the basis for the denial of Powell’s request to represent himself. Earnest Proge’s attorneys file d the anticipated motion to withdraw on April 3, representing that there had been a complete br eakdown in the attorney-client relationship. The district court heard from Proge and his couns el during a hearing on April 16, and denied the motion in an order entered April 22. On recons ideration, the district co urt allowed only one of Proge’s attorneys to withdraw and indicated that the other a ttorney could be appointed to represent him at trial. Trial pr oceeded as scheduled on April 29, 2014.
At the conclusion of the ten-day trial, but wh ile the jury was still deliberating, Carlos Powell, Eric Powell, and Earnest Proge violated their bond and fled the jurisdiction. The juryNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 6

returned verdicts finding all three defendants gu ilty of conspiracy to possess with intent to distribute and to distribute heroin, cocaine, and marijuana (Count 1). The defendants were also convicted of possession with intentto distribute the following: one kilogram or more of heroin on June 23 (Eric Powell and Earnest Proge) (Count 2); five kilograms or more of cocaine on October 22 (Carlos and Eric Po well) (Count 3); and one kilogr am or more of heroin on November 17 (Carlos Powell) (Count 4). Carlos Powell and Earnest Proge were convicted of possession of a firearm in furtherance of a drug-trafficking offense and being a felon in possession of a firearm, respectively (Counts 5 and 8). Finally, all thr ee defendants were found guilty of conspiracy to launder the proceeds of the drug trafficking (Count 10). Other substantive money-laundering charge s were dismissed before trial, and the jury acquitted Earnest Proge of the charge of possession with intent to distribute cocaine on October 22 (Count 3). 2

The United States Marshal Service apprehende d Eric Powell in Atlanta, Georgia, and arrested Carlos Powell and Earnest Proge with in a few weeks of each other in St. Louis, Missouri. The defendants were returned to Michigan for sent encing. Carlos and Eric Powell received concurrent life sentences on the dr ug and money-laundering offenses, and Carlos Powell also received a consecutive five-year term of for the firearm conviction. Earnest Proge was sentenced to concurrent terms of impr isonment of 120, 240, and 360 months, but, as the government concedes, the judgment incorrectly stated that he had been found guilty on Count 3. These consolidated appeals followed. 3

II. Motions to Suppress Evidence
On appeal from the denial of a motion to suppress, “we review the district court’s findings of fact for clear erro r and its conclu sions of law de novo .” United States v. Hurst , 228 F.3d 751, 756 (6th Cir. 2000). In doing so, the evid ence must be considered “in the light most likely to support the district court’s decision.” Id . (quoting United States v. Navarro-Camacho ,

2 Daniels did not flee and was convicted of one count of structuring financial transactions to evade reporting requirements in connection with the purchase of a luxury car in the name of Carlos Powell (Count 15).
3 The life sentences for Carlos and Eric Powell were announced at sentencing. Although the written judgment provided a twenty-year sentence to be served concu rrently for Count 10, an oral sentence controls when it conflicts with the written sentence. See United States v. Denny , 653 F.3d 415, 421 (6th Cir. 2011); United States v. Penson , 526 F.3d 331, 334 (6th Cir. 2008).Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 7

186 F.3d 701, 705 (6th Cir. 1999)). For the reasons discussed, we affirm the district court’s denial of the motions to suppress evidence.
A. Standing
The Fourth Amendment’s exclusionary reme dy “encompasses both the ‘primary evidence obtained as a direct result of an illegal search or seizure’ and, relevant here, ‘evidence later discovered and found to be derivative of an ille gality,’ the so-called ‘fruit of the poisonous
tree.’” Utah v. Streiff , 136 S. Ct. 2056, 2061 (2016) (quoting Segura v. United States , 468 U.S. 796, 804 (1984)); see also Wong Sun v. United States , 371 U.S. 471, 488 (1963). However, because Fourth Amendment rights are personal, suppression of evidence as “the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, no t by those who are aggrieved solelyby the introducti on of damaging evidence.” United States v. Padilla , 508 U.S. 77, 81-82 (1993) (per curiam) (“Co-conspirators and codefendants have been accorded no special standing.”).

The district court found that Carlos and Eric Powell had “standing” to assert the alleged Fourth Amendment violations by vi rtue of their co-ownership of the relevant phones, vehicles, and property, but that Earnest Proge did not. We assume, since the government does not argue otherwise, that the Powells may pursue the Fourth Amendment claims they press on appeal. Proge contends that he had standing to challe nge his arrest on September 17 as the product of “evidence unlawfully gathered earlier that day” through use of the GPS device on Eric Powell’s vehicle and video surveillance out side the Sherwood Avenue ware house. Because we find that the district court did not err in denying the Powells’ motions to suppress evidence—including evidence derived from the GPS tracking and th e pole cameras—we need not decide whether Proge met his burden to establish standing to challenge his seizure as fruit of the poisonous tree. See Rakas v. Illinois , 439 U.S. 128, 130 n.1 (1978); United States v. Smith , 263 F.3d 571, 582 (6th Cir. 2001).

B. Cell-Phone Location Information
The government obtained five judicially authorized warrants between March 11 and October 5, 2010, which permitted the government to receive “real time” cell-phone locationNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 8

information—including cell-site location inform ation (CSLI) and GPS data—for six cell-phone numbers for periods of 30 or 45 days each. Each warrant required the cellu lar service provider to initiate a signal to the target cell phone and to report the cell phone’s location to the DEA when requested. The first of the warrants sought real-time location info rmation for a known cellphone number subscribed to by Carlos Powell. Th e district court found that the affidavit in support of that warrant included “informant testimony, confirmed by independently verified evidence, that Carlos Powell was a major play er in a drug trafficki ng ring in Detroit.” United States v. Powell , 943 F. Supp. 2d 759, 782 (E.D. Mich. 2013). The affidavit stated that obtaining Carlos Powell’s cell-phone location information would assist in finding him and identifying his associates, the locations used to store narcotics, and the assets derived from the narcotic sales. Id

. Importantly, the government does not ask us to decide whether the long-term tracking of cell phone location information in this case should be deemed a search for purposes of the Fourth Amendment. The possibility that it coul d constitute a search was suggested in dicta in United States v. Skinner , 690 F.3d 772, 780 (6th Cir. 2012) (holdi ng short-term cell-phone tracking was not a search), cert. denied , 133 S. Ct. 2851 (2013), and was not resolved in United States v. Carpenter , 819 F.3d 880, 886-90 (6th Cir. 2016) (holding that request for historical CSLI information was not a search), petition for cert. filed , No. 16-402 (U.S. Sept. 26, 2016). Indeed, because the government took the precaution of securing warrants for cell-phone location information in this case, it is not necessary to decide that issue as long as there was either probable cause or the Leon good-faith exception applied. 4

Probable cause supports a search warrant wh en the affidavit demonstrates “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v.
Gates , 462 U.S. 213, 238 (1983). The district court detailed the information in Agent Donovan’s March 11 affidavit and concluded th at it provided a substantial ba sis for the magistrate judge to find probable cause to issue the warrant “unde r traditional probable cause analysis.” Powell ,

4 Three other circuits have also concluded that use of historical cell-phone location information is not a search. See United States v. Graham , 824 F.3d 421 (4th Cir. 2016) (en banc), petitions for cert. filed , Nos. 16- 6308/6694 (U.S. Sept. 26, 2016; Oct. 27, 2016); United States v. Davis , 785 F.3d 498 (11th Cir.) (en banc), cert. denied , 136 S. Ct. 479 (2015); United States v. Guerrero , 768 F.3d 351 (5th Cir. 2014), cert. denied , 135 S. Ct. 1548 (2015).Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 9

943 F. Supp. 2d at 782. Also, despite finding that the affidavit would not satisfy its own newly articulated probable-cause standard, the district court denied defendants’ motions to suppress because the DEA agents had relied on the judicially issued warrants in good faith. Id . at 775-84; see also id . at 780 (acknowledging that “no authoritative court has stated plainly that [the district court’s proposed] showing is required”). As suc h, the first hurdle defendants face on appeal is the good-faith exception.
Because the purpose of the exclusionary rule is to deter Fourth Amendment violations, Herring v. United States , 555 U.S. 135, 140-41 (2009), courts will not suppress evidence “obtained in objectively reasonable reliance on a subsequently invalida ted search warrant,” United States v. Leon , 468 U.S. 897, 922 (1984). Asserting a Franks claim, defendants argued that the Leon good-faith exception should not apply because Agent Do novan intentionally or recklessly omitted material information from the affidavit he submitted in support of the March
11 warrant. See id. at 923 (citing Franks v. Delaware , 438 U.S. 154 (1978)). Defendants point specifically to the following statements from later affidavits submitte d in support of other warrants: namely, that it is “common for individua ls involved in narcotics trafficking to obtain cellular telephones in nominee or fictitious names to avoid detection by law enforcement” and to “very often maintain one cellular telephone to communicate with th eir close associates and/or drug suppliers and . . . a second, third, or even a fourth cellular telephon e to communicate with customers, and/or outside associates.” Defendants contend that these statements would have lessened the likelihood that Carlos Powell could be expected to us e a cell phone subscribed to in his own name to conduct drug-related activities.
However, as the government aptly responds, this allegedly omitted information would not have been material to the magistrate judge’s probable-cause determination. See United States v.
Rose , 714 F.3d 362, 370 (6th Cir. 2013) (citing Franks , 438 U.S. at 171-72). The March 11 warrant was sought in order to determine Carlos Powell’s locatio n by tracking his personal cell phone. Whether Carlos had other ce ll phones (which he apparently di d), or used those other cell phones to conduct drug-related business (which he apparently did), would not undermine the finding of probable cause to believe that Carlos Powell was involved in an ongoing drugtrafficking conspiracy and that following him would yield evidence of that conspiracy. HavingNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 10

failed to make “a substantial preliminary showi ng” that would have entitled defendants to a Franks hearing, this claim cannot overcome the good-faith exception. Franks , 438 U.S. at 155.
Defendants also argue that the March 11 warrant was “overbroad” because it was based on probable cause to believe that th e cell-phone location information would lead to evidence of a crime—not that the location information itself would be evidence of a crime. But, the warrant issued on a finding of probable cause to believe th at evidence of drug trafficking would be found by tracking the location of Carlos Powell’s cell phone . The district court rejected defendants’ argument that the affidavit was so lacking in in dicia of probable cause as to render reliance on it objectively unreasonable. Powell , 943 F. Supp. 2d at 783-84 (citing Leon , 468 U.S. at 914). Defendants’ assertion that the warrant was “facially deficient” is equally unavailing. See Leon , 468 U.S. at 923 (“[A] warrant ma y be so facially deficient— i.e. , in failing to particularize the place to be searched or the th ings to be seized—that the executing officers cannot reasonably presume it to be valid.”). The district court di d not err in finding that evidence derived from the March 11 warrant was admissible at trial and did not taint th e probable cause underlying the second and subsequent cell -phone location warrants.

C. Cell-Phone Identification Information
DEA agents obtained a series of pen-register /trap-and-trace orders between March 11 and November 4, 2010, which purported to authorize the use of a cell-site simulator device to detect and record cell-phone identification information (such as the phone number, serial number, or mobile equipment identifiers) for unknown cell phone s that were being used by Carlos Powell, Eric Powell, and Juan Valle, respectively. Each of the applications requ ested authorization to use a cell-site simulator in the vicinity of the targ et individual in order to detect the radio signals autonomously transmitted by the target cell phone (and other cell phones in the area) to identify the phone to the network for authentication. Th at process would be repeated at different locations until the target cell-phone number was id entified—here, that included the identificationNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 11

of several prepaid cell phones subscr ibed to in fictitious names us ing a post office box address in California. 5

Defendants assert that the identification information was obtained “illegally”—and therefore evidence derived from that information should be suppressed—because the use of a cell-site simulator to capture “autonomously” transmitted information could not be authorized under the pen-register/trap-and-trace statute. The statute, as ame nded, defines a “pen register” as “a device or process which records or decode s dialing, routing, a ddressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communicat ion.” 18 U.S.C. § 3127(3); see also § 3127(1) (incorporating definitions from 18 U.S.C. § 2510). Defendants contend that this definition should be interpreted restrictively to include the recording or dec oding of information only if it is transmitted with a wire or electronic communication ( i.e. , only when sending a text or making a call). Whether the statute should be construed as defendants urge, however, is an issue of first impression that is immaterial to the suppression issue before us.
As the district court recognized, the exclusi onary rule is not an available remedy for a statutory violation unless the Constitution require s it or the statute expressly provides for it. See Carpenter , 819 F.3d at 890 (citing United States v. Abdi , 463 F.3d 547, 556 (6th Cir. 2006)); United States v. Page , 232 F.3d 536, 541 (6th Cir. 2000). Defendants clarified in reply that they do not claim that the cell-phone identification in formation was obtained in violation of the Fourth Amendment. See also Smith v. Maryland , 442 U.S. 735, 745-46 (1979) (holding use of pen register to record dial ed calls was not a search); Carpenter , 819 F.3d at 886-90 (holding collection of CSLI was not a search); United States v. Bah , 794 F.3d 617, 630-31 (6th Cir.), cert. denied , 136 S. Ct. 561 (2015) (holding officer’s sc an of magnetic strip on credit card for identifiers was not a search). Nor does the pen- register/trap-and-trace st atute itself provide for the suppression of evidence as a remedy for its violation. See United States v. Thompson ,

5 Defendants also claimed that the DEA used the cell-site simulator to collect cell-phone location information without obtaining a warrant ( i.e. , location tracking). However, the district court found no evidence that the DEA had done so, and defendants have not shown that the district court’s finding in that regard was clearly
erroneous.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 12

936 F.2d 1249, 1250-51 (11th Cir. 1991) (holding suppression not available remedy for violation of 18 U.S.C. § 1321 et seq. ). We agree with the district court that use of a cell-site simulator to identify the six unknown cell phones did not undermine the probable cause supporting the second and subsequent warrants for the cell-phone location information. 6

D. Pre- Jones Warrantless GPS Vehicle Tracking
Defendants moved to suppress evidence derive d from the warrantless GPS tracking of Eric Powell’s Chevrolet Silverado between June 10 and November 17, 2010. Although considerable evidence of drug trafficking had been uncovered by June 2010, Agent Donovan testified that a warrant was not obtained because he believed—based on direction from superiors at the DEA and advice from the United States Attorney’s Office—that one was not required by the Fourth Amendment. Two year s later, the Supreme Court in Jones held that placement of a GPS tracking device on a defendant’s vehicle was a physical intrusion that constituted a search for purposes of the Fourth Amendment. United States v. Jones , 132 S. Ct. 945, 948-51 (2012). 7

Here, without deciding whether such GPS tracking could ever be reasonable in the absence of a warrant (a que stion also not decided in Jones ), the district court assumed that the DEA’s tracking of the GPS device placed on the Silv erado violated the Fourth Amendment. The district court nonetheless denied the motions to suppress based on a detailed review of the facts surrounding each traffic stop and search. See Powell , 943 F. Supp. 2d at 785-91 (applying independent-source, inevitable-discovery, and/or attenuation doctrines). Because it was not necessary to its decision, the district court d eclined to reach the question of whether the goodfaith exception would also apply. Id. at 787 n.11. With the benefit of this court’s intervening decision in Fisher , we do the opposite and affirm on th e basis of the good-faith exception. See United States v. Fisher , 745 F.3d 200, 201 (6th Cir.), cert. denied , 135 S. Ct. 676 (2014).

6 The DOJ has since issued a policy regarding the use of cell-site simulators in criminal investigations that, among other things, adheres to the view that the pen-register statute applies but adopts a general practice of obtaining a warrant for the use of a cell-site simulator. See DOJ Policy Guidance: Use of Cell-Site Simulator Technology , U.S. Dep’t Just. (Sept. 3, 2015), https ://www.justice.gov/opa/file/767321/download.
7 The Jones majority did not decide whether tracking the vehicle over a 28-day period might also have violated an objectively reasonable expectation of privacy, although Justice Alito’s concurrence suggested that it might. Jones , 132 S. Ct. at 964 (Alito, J., concurring in the judgment); see also id . at 957 (Sotomayor, J., concurring) (noting “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntar ily disclosed to third parties”).Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 13

The exclusion of evidence obtained in violation of the Fourth Amendment is “intended ‘to deter future Fourth Amendment violations.’” Id . at 203 (quoting Davis v. United States , 564 U.S. 229, 236-37 (2011)). “[B]ecause the extent to which the exclusionary rule is justified by these deterrence principles varies with the culp ability of the law enforcement conduct, the costbenefit analysis should focus on the ‘flagrancy of the police misconduct’ and on whether the police misconduct was ‘deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.’” Id . (quoting Herring , 555 U.S. at 143-44). “When police act in good faith, however, ‘conduc t[ing] a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.’” Id . (alteration in original) (quoting Davis , 564 U.S. at 249-50).

In Fisher , this court held that the officers had an objectively reasonable good-faith belief that the warrantless GPS tracking they conducted in May and June of 2010 “was lawful and was sanctioned by then binding appellate precedent.” Id . at 201. Specifically, atthe time of the GPS tracking in Fisher , “the Supreme Court had strongly indi cated, and the Sixth Circuit and three other circuits had held, that th e warrantless use of electronic trac king devices was permissible.” Id . at 203. Also, as the Seventh Ci rcuit has recognized, “circuits th at did not have their own GPS precedent prior to Jones have uniformly concluded that [t he Supreme Court’s decision in] Knotts is binding appellate precedent for the purpose of Davis ’s good-faith exception, even when police officers’ GPS monitoring lasted for a longer period of time.” United States v. Taylor , 776 F.3d 513, 518 n.2 (7th Cir. 2015) (per curiam) (citing cases); see also United States v. Knotts , 460 U.S. 276 (1983) (holding that monitoring of a si gnal from a beeper was not a search). Here, the GPS tracking took place during roughly the same period as in Fisher , and the DEA agents acted in objectively reasonable reliance on the th en binding appellate preced ent. Finding that the good-faith exception applies, we affirm the deni al of the defendants’ motion to suppress evidence derived from the warrantless GPS vehicle tracking in this case.
E. Utility-Pole Camera Surveillance
Finally, defendants challenged evidence obtain ed as a result of the warrantless video surveillance conducted through the installation of video cameras on three public utility poles for periods of up to 90 days each. One camera was inst alled near the Conley Street location in AprilNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 14

2010, and the other two cameras were installed near the Stricker Avenue location and the warehouse on Sherwood Avenue in August 2010. Ther e is no dispute that all three of those locations were used in connecti on with the defendants’ drug operation and were not places where the defendants resided. The district court deni ed defendants’ motions to suppress the video recordings (and evidence derived from them) b ecause there was neither physical intrusion nor violation of any reasonable expe ctation of privacy. Guided by this court’s recent decision in
Houston , we affirm the district c ourt’s denial of the defendant s’ motion to suppress this evidence. United States v. Houston , 813 F.3d 282 (6th Cir.), cert. denied , 137 S. Ct. 567 (2016).

The court in Houston held that remote surveillance of a rural farm with a utility-pole camera for a period of ten weeks without a warrant “did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.” Id . at 285. This court emphasized that “the Fourth Amendment does not ‘preclude an officer’s obs ervations from a public vantage point where he has a right to be and which renders the activities clearly visible.’” Id . at 288 (quoting California v. Ciraolo , 476 U.S. 207, 213 (1986)). Further, the court reject ed the claim that the length of the period of monitoring made the surveillance constitutionally unreasonable, explaining that law enforcement may use technology to augment their activities and that it is the possibility—not the practicability—of in-per son surveillance from a public vant age point that is critical. Id . at 288- 90; but see id . at 296-97 (Rose, J., concurri ng) (finding harmless error).

The district court reviewed the evidence— including photographs of the properties and video footage taken by the pole cameras—and found th at each of the cameras viewed areas that were clearly visible from a public vantage point. Defendants argue that the camera at the Conley Street location looked into an area between the house and an unattached garage. However, the district court specifically found that this camer a was positioned looking over a half-solid, halflattice array, “to a location where the public coul d easily see from another vantage point.” With respect to the Stricker Avenue location, the district court found th e pole camera observed a driveway that was open and accessible to public vi ew. Finally, the distri ct court found that the pole camera outside the Sherwood Avenue wareh ouse viewed a common yard between buildings that was “open to many directions and surrounded by roads and alleyways” and had noNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 15

obstructions that would prevent someone from observing the defendants “comings and goings.” See, e.g. , United States v. Wymer , 654 F. App’x 735, 743-44 (6th Ci r. 2016) (holding warrantless surveillance of commercial property from utility-p ole cameras that recorded for five months was not a search), cert. denied , _ S. Ct. _, 2017 WL 276211, 2017 WL 276212 (Jan. 23, 2017). Defendants have not demons trated that those findings were clearly erroneous.

We affirm the district court’ s denial of the defendants’ motions to suppress evidence.
III. Request for Self-Representation
Carlos Powell’s claim that he was depriv ed of his Sixth Amendment right to selfrepresentation asserts structural error for which harm need not be shown in order to reverse. McKaskle v. Wiggins , 465 U.S. 168, 177 n.8 (1984). There is uncertainty in this circuit concerning the standard for reviewing such claims. See United States v. Evans , 559 F. App’x 475, 478 (6th Cir. 2014). Decisions denying a defe ndant’s request for self-representation have been reviewed de novo and for abuse of discretion. See, e.g. , United States v. Jones , 489 F.3d 243, 247 (6th Cir. 2007); Robards v. Rees , 789 F.2d 379, 383-84 (6th Ci r. 1986). We need not resolve this uncertainty, however, because we w ould affirm the district court under either standard of review. See United States v. Pryor , 842 F.3d 441, 448 (6th Cir. 2016); United States v. Clark , 774 F.3d 1108, 1112 (7th Cir. 2014). 8

A. Faretta
The Sixth Amendment guarantees a criminal de fendant the right to counsel, as well as the corollary right to waive counsel and proceed pro se even when the court believes that it would not be advisable. Faretta v. California , 422 U.S. 806, 807, 819-20 (1975). A defendant’s waiver of the right to counsel must be made knowingly, intelligently, and voluntarily. Iowa v. Tovar , 541 U.S. 77, 87-88 (2004); see also United States v. Martin , 25 F.3d 293, 295 (6th Cir. 1994). As a result, before a defendant may be deemed to have validly waived the right to counsel, he must be warned specifically of the “dangers and disadvantages of self-representation.” Faretta ,

8 Under a de novo standard, we review the dist rict court’s legal conclusions de novo and the underlying factual findings for clear error. United States v. Cromer , 389 F.3d 662, 679 (6th Cir. 2004); see also United States v. Bush , 404 F.3d 263, 270 (4th Cir. 2005); United States v. Mackovich , 209 F.3d 1227, 1236 (10th Cir. 2000).Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 16

422 U.S. at 835; see also Hill v. Curtin , 792 F.3d 670, 677-78 (6th Cir.) (en banc), cert. denied , 136 S. Ct. 593 (2015). This court has instructed district judges to “ask the defendant a series of questions drawn from, or substantially sim ilar to, the model inqui ry set forth in the Bench Book for United States District Judges .” United States v. McBride , 362 F.3d 360, 366 (6th Cir. 2004). The model inquiry is to be followed by “a str ong admonishment that the court recommends against the defendant trying to represent himself or herself.” United States v. Williams , 641 F.3d 758, 767 (6th Cir. 2011).
But, a defendant’s right to self-re presentation “is not absolute.” Martinez v. Court of Appeal of Cal. , 528 U.S. 152, 161 (2000); see also Indiana v. Edwards , 554 U.S. 164, 171 (2008) (citing cases). “[T]he govern ment’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in act ing as his own lawyer.” Martinez , 528 U.S. at 162. A defendant must assert the right to se lf-representation clearly, unequivocally, and in a timely manner, and “courts will balance any such assertion against consid erations of judicial delay.” Martin , 25 F.3d at 295-96. Even a clear request made prior to trial may be denied when it “is merely a tactic to secure a delay in the proceeding.” Robards , 789 F.2d at 383 (noting that the defendant in Faretta “had a genuine inclination to conduct his own defense”). In assessing the facts and circumstances of a particular case, the trial judge is “in a unique position to balance the defendant’s Sixth Amendm ent right against de lay, defense gamesmanship, and other practical concerns.” United States v. Cunningham , 564 F. App’x 190, 194 (6th Cir. 2014). That includes “distinguish[ing] between a manipulative e ffort to present partic ular arguments and a sincere desire to dispense with the benefits of counsel.” Halder v. Tibals , 561 F. App’x 454, 464 (6th Cir. 2014) (quoting United States v. Frazier-El , 204 F.3d 553, 560 (4thCir. 2000)); see also United States v. Bush , 404 F.3d 263, 271-72 (4th Cir. 2005).
B. Analysis

Carlos Powell retained counsel at the time of his indictment and did not indicate a desire to represent himself until the day of the fina l pretrial conference. At defense counsel’s suggestion, and without objection from Powell, the district court agreed to conduc t the required inquiry after counsel had a chance to talk with his c lient. During the con tinued conference, the district court reiterated that no continuance would be grante d and confirmed that Powell wasNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 17

asserting his right to represent himself. There is no disput e that the colloquy that followed complied with Faretta and was consistent with the mode l inquiry required by this court.
In ruling on the record, however, the district court denied Po well’s request in reliance on inapposite case law and a ba lancing of factors that we re inapplicable to an asserted right to selfrepresentation. The government moved for reconsideration “out of an abundance of caution concerning the risk of this becoming an issue on appeal,” asking that Powell be allowed to represent himself with the aid of standby counsel. Powell makes much of that motion on appeal, but we view it as reflecting the government’s legitimate attempt to hedge against the very claim of structural error being made here. In fact, the motion resulted in an order that clarified the basis for the district court’s deci sion. Specifically, the district court assumed that the request was timely, but found that the “colloquy and surrounding circumstances co nvinced [it] that Powell’s request was not made in good faith but was intended as a tactic to delay the tria l.” It is that order we must review.
Powell contends that his waiver of the right to counsel was improperly rejected because the arguments he wanted to make were deemed “mer itless.” It is true that a defendant’s lack of legal skill or knowledge will not prevent him from competently or intellige ntly waiving his right to counsel. Faretta , 422 U.S. at 835; see also Godinez v. Moran , 509 U.S. 389, 400 (1993) (“[A] criminal defendant’s ability to represent himself has no bearing on his competence to choose self-representation.”). Nor is a defendant prev ented from competently waiving his right to counsel because he “articulate[s] be liefs that have no legal support.” United States v. James , 328 F.3d 953, 955 (7th Cir. 2003) (upholding waiver of counsel by a defendan t whose defense was based on meritless Moorish Scienc e Temple legal beliefs). In James , however, the issue arose because the defendant rejected appointed counsel, represented himself at trial, and then claimed on appeal that he should not have been allowed to proceed pro se because his beliefs were meritless. Here, in contrast, the challenged statements by the district court were central to the warning required by Faretta in an attempt to impress upon Powe ll the perils of dispensing with counsel in order to re-file documen ts that would not be considered.
Specifically, the district court inquired into the circumstances of Powell’s request and determined that it did not arise out of conflict or dissatisfaction with his retained counsel of moreNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 18

than two years. Rather, Powell explained: “It’s particular documents I need to file, and also you stated that the attorney didn’t file the documents so you’re st riking them.” Everyone understood Powell to be referring to the stricken documents from the Moorish Science Temple of America. The district court explained to Powell that the stricken documents would not be considered because they were “meritless” and “irre levant” to the substance of his case. 9

That is, since Powell’s request was expressl y premised on his desire to file those documents, the district court asked: Now, if I hear you correctly, you’re sayi ng in order to file documents that may have a very negative impact on your case and get that op portunity, you want to fire your lawyer. And then the additional consequence[] is to have this trial . . . without him at your side becau se it’s so important for you to file these documents. Is that what you’re saying? Powell replied that he had “Constitutional issues ,” and asked, “So how el se will I get them filed?” The district court told Powell that his counsel’s unwilli ngness to file those documents should tell him that he “may nothave a real good Constitutiona l argument there.” Asked again whether he wanted to fire his at torney in order to file documents that had “no legal significance,” Powell stated that his “life was on the line” and he wanted to present himself the best way he could. Then, despite having reviewed the mode l inquiry with counsel, Powell claimed not to understand what a “criminal” action was; stated th at he had heard he was charged with a crime but that he had not “presented himself”; and asked if he could defend himself with the “Constitution and treaties.” Powell also asked about standby counsel before agreeing that he would be on his own. Finally, Powell acknowledged that the rules of evidence and procedure would apply to him, saying he w ould get no “special privileges.”
The district court proceeded to candidly expr ess its skepticism aboutPowell’s intentions, noting that Powell is a “very sharp fellow,” perhaps sharper than he was letting on, and insinuating that Powell was “engaged in a ploy to avoid trial at the last minute.” The district

9 Powell’s appeal described those do cuments as embodying the Moorish Science belief that, because he claimed Moorish ancestry, the court’s authority was circumscribed by treaty obligations with the Moorish Empire. See James , 328 F.3d at 954. Powell does not challenge the distri ct court’s assessment of these claims as irrelevant and frivolous. See United States v. Cannon , 560 F. App’x 599, 601 (7th Cir. 2014) (rejecting jurisdictional arguments based on Moorish Science Temple beliefs as frivolous). Self-representation is not a license to disregard “relevant rules of procedur al and substantive law.” Faretta , 422 U.S. at 834 n.46.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 19

court added that, having seen some of the gov ernment’s evidence, it might behoove Powell to “be more familiar with some of these meritless arguments.” The district court admonished Powell again about the perils of dispensing with counsel—particularly as he seemed to be armed with meritless theories—before Powell declared that his decision was voluntary. In the order denying reconsideration, the distri ct court made explicit its finding that Powell’s assertion of the right to self-representation “was not made in good faith but was intended as a tactic to delay trial.” Powell contends that there was no fact ual basis for this infe rence. We disagree.
The timing and circumstances of Powell’s requ est support the district court’s finding. Although circumstances will vary from case to case, the district court could consider Powell’s relationship with his counsel, the timing of his re quest, and the fact that his request was based at least in part on the refusal of counsel to file frivolous documents. See, e.g. , United States v. Mackovich , 209 F.3d 1227, 1237 (10th Cir. 2000); see also United States v. Edelmann , 458 F.3d 791, 809 (8th Cir. 2006). Powell elected to retain c ounsel at the time of his indictment and did not express dissatisfaction with counsel’s representation or indi cate any desire to represent himself for more than two years. It was not un til the day of the final pretrial conference that Powell first indicated that he wanted to represent himself—tw o years after indictment, six months after resolution of the last of the suppre ssion motions, and only after a firm trial date was imminent. 10

Powell’s request was premised on his couns el’s unwillingness to file the stricken documents—not resistance to being represented by counsel. Even some of Powell’s answers to the model inquiry echoed theories reflected in the stricken documents. The district court’s skepticism of Powell’s motives is also supportedby the fact that he pr eviously filed similar Moorish Science Temple documents in two rela ted proceedings. Yet, Powell did not file, attempt to file, or seek to dismiss counsel fo r not filing, documents based on his Moorish Science Temple beliefs until one month before trial in the two-year-old case . The circumstances surrounding Powell’s proffered waiver of the right to counsel permitted the district court to infer

10 Powell claims to have acknowledged that no continuance would be granted. But, the record shows that Powell neither asked for a continuance nor stated that one would not be necessary if he were allowed to represent himself. Nothing about Powell’s implicit acquiescence in di strict court’s statements about the firmness of the trial date would have precluded him from asking for more time to prepare on the eve of trial.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 20

that it was a manipulative effort to present friv olous arguments rather than “a sincere desire to dispense with the benefits of counsel.” Frazier-El , 204 F.3d at 560; see also Bush , 404 F.3d at 271-72; Mackovich , 209 F.3d at 1237-38. The district cour t did not err in fi nding that Powell’s assertion of his right to self -representation was not made in good faith but was intended as a tactic to delay the trial. We affirm the de nial of Powell’s request to represent himself. 11

IV. Withdrawal of Counsel
Earnest Proge argues that he was deprived of his right to counsel of choice when the district court refused to allow his retained counsel to withdraw. The Sixth Amendment guarantees “the right of a defendant who does not require appointed counsel to choose who will represent him.” United States v. Gonzalez-Lopez , 548 U.S. 140, 144 (2006). Deprivation of that right is structural error that does not require a showing of prejudice or th at the counsel defendant received was ineffective. Id . at 148. But, that right “is circumscribed in several important respects.” Id . at 144 (quoting Wheat v. United States , 486 U.S. 153, 159 (1988)). Among those limitations is the trial court’s di scretion “in balancing the right to counsel of choice against the needs of fairness” and “the demands of its calendar.” Id . at 152; see also Wilson v. Mintzes , 761 F.2d 275, 280 (6th Cir. 1985). A district court’ s decision to deny a motion to withdraw or for substitute counsel is reviewed for abuse of discretion. See United States v. Chambers , 441 F.3d 438, 446 (6th Cir. 2006).
Once a defendant brings “any serious dissatisfac tion with counsel to the attention of the district court,” the court has an obligation to inquire into the source and nature of the dissatisfaction and may grant a motion to withdraw or for substitute counsel if there is a showing of good cause. Benitez v. United States , 521 F.3d 625, 632 (6th Cir. 2008) (quoting United States v. Iles , 906 F.2d 1122, 1131-32 (6th Cir. 1990)). Appellate courts reviewing the denial of such a motion generally consider four factors: “the timeliness of the motion”; “the adequacy of the court’s inquiry into the matter”; “the extent of the conflict between th e attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense”; and “the balancing of these factors with the public’s interest in the prompt

11 The district court did not know Powell would flee during the jury’s deliberations, but the fact that he did is consistent with the finding of dilatory intent.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 21

and efficient administration of justice.” United States v. Mack , 258 F.3d 548, 556 (6th Cir. 2001); see also Benitez , 521 F.3d at 632 (reviewing a motion to substitute retained counsel). Balancing these factors, we hold that the distri ct court abused its discretion by allowing one but not both of Proge’s attorneys to withdraw under the circumstances.
It was during the final pretri al conference one month before trial that Proge’s counsel stated that Proge wanted new counsel and was “prepared to either pe tition the government for that counsel and/or obtain private counsel.” In making a record of Proge’s decision to reject the plea offer against the advice of counsel, Proge sa id he felt like it was “an apple being forced down [his] throat” and that there was not “enough tim e to make a proper decision.” The district court extended the time for Proge to enter into a plea agreement, but put off his request for new counsel and invited his attorneys to file a mo tion to withdraw. That motion was filed three weeks before trial, a hearing was held two weeks before trial, the motion was denied in toto one week before trial, and motions for reconsideratio n were granted in part, and denied in part, one day before trial.
This court has considered a request for new c ounsel made just days or weeks before trial to be untimely. See United States v. Trujillo , 376 F.3d 593, 606-07 (6th Ci r. 2004) (finding request made three days before trial was untimely); United States v. Williams , 176 F.3d 301, 314 (6th Cir. 1999) (finding moti on for substitute counsel made two weeks before trial was untimely). Although Proge’s requestwas not made on the eve of trial, the government relies on this court’s finding in Chambers that a motion for substitution of counsel made one and a half months before trial was untimely. Chambers , 441 F.3d at 447. But, in Chambers the request was untimely because the defendant’s complaint was that his counsel would not allow him access to certain discovery materials when discovery had been complete for nearly a year. Id .; see also United States v. Marrero , 651 F.3d 453, 464-65 (6th Cir. 2011) (finding defendant belatedly conveyed his dissatisfaction with co unsel). Here, the breakdown that motivated Proge’s request for new counsel occurred the da y before the final pretrial conference. Cf. United States v. Israel , __F. App’x__, 2016 WL 6407245, at *3 (6th Cir. Oct. 31, 2016) (“We are not persuaded defendant acted diligently in bringing his concerns to th e district court’ s attention.”).Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 22

Once the defendant made his dissatisfaction known, the district co urt was obligated to inquire into the source and nature of the conflict. Benitez , 521 F.3d at 634. To satisfy this requirement, “the district court simply must a llow a defendant the opportunity to explain the attorney-client conflict as he perceives it.” Marrero , 651 F.3d at 465. This “not only aids in determining whether ‘good cause’ has been shown, but serves to ease the de fendant’s distrust, to preserve the integrity of the trial process, and to foster confidence in the jury verdict.” Iles , 906 F.2d at 1131. The district court did not conduct any inquiry when new counsel was requested, but Proge, his attorneys, and the pros ecutor had an opportunity to address the issue during a hearing 21 days later and in the supplemental briefing and motions for reconsideration that followed. While an earlier inquiry might have served its purposes better, the district court’s inquiry into the source of Proge’s conflict with counsel was adequate.

The motion to withdraw outlined the efforts ma de to negotiate the plea offer and made clear that there had been a complete breakdow n in communication with Proge after lengthy discussions with him regarding the plea offer. The district court described Proge’s chief complaint to be his attorneys’ opposition to him pr oceeding to trial, but explained that Proge was free to reject his attorneys’ ad vice to accept the plea offer. “[A] defendant’s differences of opinions with his attorney do not create a complete breakdown of communication that compromises his defense.” Marrero , 651 F.3d at 466; see also United States v. Griffin , 476 F. App’x 592, 596 (6th Cir. 2011) (finding no conflic t when dissatisfaction was over counsel’s encouragement of a guilty plea). Also, “a lack of communication result ing from a defendant’s refusal to cooperate with his attorney does not constitute good cause for substituting counsel.”
Marrero , 651 F.3d at 466; see also United States v. Vasquez , 560 F.3d 461, 468 (6th Cir. 2009).
In this case, however, the record belies the conclusion that th ere was either no conflict or that Proge was entirely to blame. There was not just a disagreement over whether it was in Proge’s best interest to accept the plea offer. It was during the lengthy discussions about the plea offer that Proge’s attorneys told him that they had not been retained to represent him at trial, had not prepared for trial, were not equipped to repres ent him at trial, and woul d seek to withdraw if he did not accept the plea offer. Proge claimed to be surprised by this, in sisted that he did not want attorneys who did not want to fight for him, and repeated that he wanted to hire a newNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 23

lawyer to represent him at tria l. Defense counsel agreed th at there was an irreconcilable breakdown in the attorney-client relationship and that, as would become apparent, Proge did not have the resources to pay for further repres entation. The conflict between Proge and his attorneys resulted in a complete lack of comm unication that weighs strongly in his favor.
Finally, the court must balance the defendant’s “right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice.” Wilson , 761 F.2d at 280. When a request for substitute counsel would “almost certainly necessitate a last-minute continuance, the trial judge’s actions are entitled to extraordinary deference.” Vasquez , 560 F.3d at 467 (quoting United States v. Whitfield , 259 F. App’x 830, 834 (6th Cir. 2008) (per curiam)). But, a trial court may not arbitrarily and unr easonably interfere with a defendant’s right to counsel of choice in the na me of calendar control. Wilson , 761 F.2d at 281. The district court put off making inquiry into the conflict despite a specific request for new counsel and indication of a serious conflict, which cont ributed to the likelihood that a last-minute continuance would be necessary. Nor is this a case in which new counsel was sought based on frivolous complaints about attorney performance. See United States v. Saldivar-Trujillo , 380 F.3d 274, 278 (6th Cir. 2004). Considering that the request for new couns el was made timely and more than a month before trial, that th e inquiry was delayed th ough adequate, and that there was a complete breakdown in the attorney-client relationship, the insistence that trial go forward without allowing for substitute counsel violated Proge’s Sixth Amendmen t rights. The district court abused its discretion in denying the motion of re tained counsel to withdraw in this case. 12

V. Sufficiency of the Evidence
Although reversal of Proge’s convictions is required by the violation of his Sixth Amendment rights, we still must decide his suffi ciency-of-the-evidence claims because reversal on that ground would preclude retrial. See United States v. Nelson , 725 F.3d 615, 619 (6th Cir. 2013). The question for this court is whether, “after viewing the eviden ce in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of

12 “[A] defendant relying on court-appointed counsel has no constitutional right to the counsel of his choice.” Daniels v. Lafler , 501 F.3d 735, 740 (6th Cir. 2007); see also Gonzalez-Lopez , 548 U.S. at 151. Here, despite hints that appointed counsel might be necessary, Proge’s trial counsel was not appointed to represent him until after the motion to withdraw was denied and trial had begun.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 24

the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Proge does not challenge the sufficiency of the evid ence to support his firearm conviction (Count 8) and cannot be retried on the substantive drug ch arge for which he was acquitted (Count 3). For the reasons that follow, we hold that the evidence was sufficient to support Proge’s convictions for: conspiracy to possess with intent to distribute and to distribute marijuana, five kilograms or more of cocaine, and one kilogramor more of heroin (Count 1); possession with intent to distribute one kilogram or more of heroin (aiding and abetting) (Count 2); and conspiracy to commit money laundering (Count 10).
First, in order to establish a drug conspi racy in violation of 21 U.S.C. § 846, “the government must prove, beyond a reasonable doubt, ‘(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.’” United States v. Gibbs , 182 F.3d 408, 420 (6th Cir. 1999) (quoting United States v. Welch , 97 F.3d 142, 148 (6th Cir. 1996)). Once the ex istence of the conspiracy is proven, only slight evidence is needed to connect a defendant to the conspiracy. Id . at 422. Proge’s knowledge and intent to join the conspiracy may be inferred from his co nduct and established by circumstantial evidence. United States v. Martinez , 430 F.3d 317, 330 (6th Cir. 2005). Proge does not dispute that there was overwhelming evidence that the conspiracy to distribute drugs existed. Instead, he argues that the evidence failed to prove more than his me re association with the Powells. This claim is without merit.
Proge was not just seen associating with the Po wells. It is true that Proge was not in the Volkswagen with Whigham when the ten kilograms of heroin was seized on June 23. But, Proge was observed waiting with Whigham and Eric Powe ll for the heroin to be loaded into the Volkswagen, was followed as he and Eric Powell traveled in tandem with the Volkswagen, and was seen leaving the highway to double ba ck when Whigham was stopped. Proge was subsequently stopped on September 17 transporting $2.2 million in cash in locked suitcases loaded by the Powells, after meeting Eric Powell at the warehouse, and while being followed by Eric Powell and a coconspirator in the Silverado. Proge stopped initially, but fled at high speed (with the Silverado taking up the chase) before finally being stopped. There was evidence that Proge told officers that there was a lot of cash in the car but that he was just the driver. WhenNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 25

Eric Powell transported suitcases from the Strick er Avenue location to a hotel in Ann Arbor on October 1, Proge was seen helping to load a heavy suitcase into a Toyota that was sitting in the parking lot. There was also evidence that Proge was present on October 22, when suitcases containing cash and 12 kilograms of cocaine were transferred to Margarita Lopez de Vallejo’s Toyota in the same hotel parking lot. When viewed in the light most favorable to the prosecution, the evidence was suffi cient to lead a rational trier of fact to conclude that Proge knowingly and intentionally joined the drug-distribution conspiracy.
Count 2 charged Proge, Whigham, and Eric Powell with possessio n with intent to distribute one kilogram or more of heroin on June 23, 2010. Proge argues that there was insufficient evidence to establish that he had act ually or constructively possessed the heroin that was seized from the Volkswagen. See United States v. Newsom , 452 F.3d 593, 609 (6th Cir. 2006). However, Proge does not dispute that the evidence was sufficient to lead a rational juror to conclude he was guilty under either a Pinkerton coconspirator liability theory or an aidingand-abetting theory. See United States v. Martin , 920 F.2d 345, 348 (6th Cir. 1990) ( Pinkerton theory).
Lastly, to establish a money-laundering conspi racy “the government must prove (1) that two or more persons conspired to commit th e crime of money laundering, and (2) that the defendant knowingly and voluntaril y joined the conspiracy.” United States v. Prince , 618 F.3d 551, 553-54 (6th Cir. 2010); see also Whitfield v. United States , 543 U.S. 209, 212 (2005) (holding that an 18 U.S.C. § 1956(h) conspiracy does not require pr oof of an overt act). There was ample proof that a money-la undering conspiracy ex isted, and the evidence was sufficient to lead a rational juror to conclude that Proge conducted or attempted to conduct a financial transaction knowing that it involved the proceeds of drug trafficking and with intent to promote the drug trafficking. United States v. Skinner , 690 F.3d 772, 782 (6th Cir. 2012) (finding evidence sufficient where defendant “knowingly and routinely transported drug proceeds in furtherance of the drug-tr afficking conspiracy”); see United States v. Kelso , 468 F. App’x 551, 555 (6th Cir. 2012) (noting that the “paradigmatic example” of promotional money laundering is a drug dealer using the proceeds of a drug transaction to purchase additional drugs).Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 26

The government concedes that the judgment incorrectly stated that Proge was found guilty on Counts 1, 2, 3, 8, and 10, when the jury found him not guilty on Count 3. On remand, Proge is entitled to en try of judgment of acquitt al with respect to Count 3. But, because Proge has not prevailed on his sufficiency-of-the-evid ence claims, retrial is not precluded on remand with respect to Counts 1, 2, 8, and 10.

VI. Apprendi and Alleyne
Carlos Powell filed a separate pro se supplemental brief raising additional claims of sentencing error. We need not address his additi onal claims since he is represented by counsel who has filed a brief on appeal. See United States v. Williams , 641 F.3d 758, 770 (6th Cir. 2011). But, we exercise our discretion to do so in order make clear th at his sentences do not violate Apprendi v. New Jersey , 530 U.S. 466 (2000), or Alleyne v. United States , 133 S. Ct. 2151 (2013).
Powell’s claim that his sentence on the multip le-object drug conspiracy could not exceed the five-year maximum for conspiracy involving an unspecified quantity of marijuana is based on a misapprehension of our decision in United States v. Dale , 178 F.3d 429 (6th Cir. 1999). In Dale , we held that “when an indictment charges a defendant with a multiple-object conspiracy and the jury is instructed to agree unanimously as to whether one drug or both drugs referred to in the indictment are the objects of the conspir acy, the defendant must be sentenced as if the conspiracy involved only the drug with the lower penalty when the jury returns a verdict not specifying the substance found. ” United States v. Tosh , 330 F.3d 836, 840 (6th Cir. 2003) (emphasis added). Dale does not apply, here, because the juryreturned a verdict specifically finding that the drug conspiracy involved at least five kilograms of cocaine and at least one kilogram of heroin (Count 1).
Apprendi held that “[o]ther than the fact of a prior convic tion, any fact that increases the penalty for a crime beyond the prescribed statut ory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Apprendi proscribed judicial fact-finding that increased the statutory maximum, and Alleyne extended that principle to apply “with equal force to facts increasing the mandatory minimum.” 133 S. Ct. at 2160. He re, the drug quantitiesNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 27

that increased the statutory pe nalties for Powell’s drug-conspi racy conviction to a term of imprisonment of not less than ten years or more than life were charged in the indictment, submitted to the jury, and found beyond a reasonable doubt. See 21 U.S.C. §§ 846 and 841(b)(1)(A). The same is true for Powell’s co nvictions on the substantive drug offenses, which the jury specifically found had involved at leas t five kilograms of co caine and at least one kilogram of heroin, resp ectively (Counts 3 and 4). To the extent that Powe ll also complains that the district court engaged in im permissible fact-finding in dete rmining his sentences, judicial fact-finding that results in a Guidelines range above the minimum but not exceeding the maximum sentence would not violate Apprendi or Alleyne

. See United States v. Cooper , 739 F.3d 873, 884 (6th Cir. 2014); United States v. Johnson , 732 F.3d 577, 584 (6th Cir. 2013).

VII.

We AFFIRM the denial of defendants’ motions to suppress; AFFIRM the judgments entered against Carlos Powell and Eric Powell, respectively; and VACATE the convictions of Earnest Proge and REMAND for entry of judgment of acquitt al on Count 3 and for further proceedings with respect to Counts 1, 2, 8, and 10.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 28

______________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

______________________________________________________ KAREN NELSON MOORE, Circu it Judge, concurring in part and dissenting in part. What more could Earnest Proge or Carlos Powell have done? At their Fina l Pretrial Conference on March 26, 2014, both men raised serious concer ns with their legal representation. Proge moved to substitute his retained counsel. Powell m oved to represent himself. With their trial for orchestrating one of the largest drug-trafficking conspiracies inthe history of Detroit weeks away, both men sought to avail themselves of f undamental protections th at the Sixth Amendment enshrines: for Proge, the right to counsel of choice; for Powell, th e right to self-r epresentation.
The facts of what followed are sobering. The government urged the district court to grant Powell’s Faretta motion and Proge’s motion to substitute counsel. The district court declined. It forced Proge to proceed with anattorney who, by her own repeat ed admissions, had not prepared for trial. It refused to allow Powell to re present himself, even though Powell knowingly and voluntarily waived his right to counsel.

Those were structural errors. The district court erred when it refused to allow Proge to substitute his retained counsel. And it erred when it denied Powell’s Faretta motion. I agree with the majority in vacating Proge’s convic tion and provide more detail supporting that decision. Because I believe that Carlos Powell s hould have been permitted to represent himself, I respectfully dissent from Part III of the majority.

I. RIGHT TO COUNSEL OF CHOICE
“The right to select counsel of one’s choice . . . has been regarded as the root meaning of the constitutional guarantee” that the Sixth Amendment embodies. United States v. GonzalezLopez , 548 U.S. 140, 147–48 (2006). “Given the necessarily close working relationship between lawyer and client, the need for confidence, and th e critical importance of tr ust . . . the [Supreme] Court has held that the Sixth Am endment grants a defendant ‘a fa ir opportunity to secure counsel of his own choice.’” Luis v. United States , 136 S. Ct. 1083, 1089 (2016) (quoting Powell v. Alabama , 287 U.S. 45, 53 (1932)). The district cour t denied Proge this opportunity when itNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 29

forced him to proceed to trial with an atto rney who was unprepared to defend her client. Because that was a structural error, Gonzalez-Lopez , 548 U.S. at 152, I agree with the majority that we must vacate Proge’s conviction.
We weigh four factors when re viewing a district court’s deni al of a defendant’s motion to substitute counsel: (1) “the timeliness of the mo tion”; (2) “the adequacy of the court’s inquiry into the defendant’s complaint”; (3) “whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense”; and (4) the balance between “the accused’s right to counsel of hi s choice and the public ’s interest in the prompt and efficient ad ministration of justice.” United States v. Mooneyham , 473 F.3d 280, 291 (6th Cir. 2007) (quoting United States v. Salvidar-Trujillo , 380 F.3d 274, 277 (6th Cir. 2004)). Here, all four factors m ilitate in favor of granting Proge’s motion, and the district court abused its discretion when it ruled otherwise.
1. Timeliness: Proge’s request to subs titute counsel was timely because—as the government wrote in its brief recommending that the district court grant that request—Proge raised this issue one day after his relationship with his attorn eys deteriorated completely. R. 268 (4/17/14 Gov’t Supp. Br. at 3–4) (Page ID #2055–56).
In their motion to withdraw, Proge’s atto rneys—Patricia Maceroni and Linda Bernard— explained that on March 25, 2014, they met with Pr oge to review a Rule 11 plea agreement. R. 258 (4/3/14 Mot. to Withdrawat 4) (Page ID #1995). The next day , at the Marc h 26 Pretrial Conference, Bernard explained to the district court that Proge wanted to reject the plea agreement and proceed to trial. R. 490 (Final Pretrial Confer ence Tr. at 29) (Page ID #4205). Neither Bernard nor Maceroni, however, was prepar ed to assist Proge in that effort: their representation had been limited to negotiating a plea agreement and filing pretrial motions. R. 587 (4/16/14 Hr’g Tr. at 41) (Page ID #9143). Accordingly, Proge’s attorneys “did not obviously prepare for trial.” Id. at 44 (Page ID #9146). Proge’s rejection of the plea agreement thus triggered “a complete breakdown in the attorn ey-client relationship such that [his attorneys could] no longer be effective advocates for Mr. Proge .” R. 258 (4/13/14 Mot. to Withdraw at 4) (Page ID #1995). One day after that complete breakdown, Proge, understa ndably concerned thatNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 30

his attorneys “didn’t want to represent [him] in trial,” R. 587 (4/15/14 Hr’g Tr. at 51) (Page ID #9153), informed the district court that he wished to seek new counsel.
The district court reasoned that Proge’s re quest was not timely because “[t]he first indication that he was dissatisfi ed with his attorneys arose right before the final pretrial conference, and [his attorneys’ motion to withdraw ] was ultimately not filed until less than three weeks before the trial.” R. 282 (4/22/14 Order at 4) (Page ID #2147). I fail to see how Proge could have moved to substitute counsel sooner . He implored the district court to allow him to hire a new attorney within one day of learning that his attorneys were not ready to continue representing him. That was a timely request.
2. Adequacy of court’s inquiry: “Once a de fendant” informs the district court that he wishes to substitute retained counsel, “the district court is obligated to inquire into the defendant’s complaint and determine whether there is good cause for the substitution.” Benitez v. United States , 521 F.3d 625, 632 (6th Cir. 2008). “[W]here a district court is on notice of a criminal defendant’s dissatisfac tion with counsel, the court has an affirmative duty to inquire asto the source and nature of that dissatisfaction—regardless of whether the attorney is courtappointed or privately retained.” Id. at 634. The districtcourt failed to fulfill that duty here.
At the Final Pretrial Conference, Bernard informed the district court that she and Maceroni would be filing a motion to withdraw from representing Proge. R. 490 (Final Pretrial Conference Tr. at 27) (Page ID #4203). The district court responded: “I’ll tell you right now, you may not have those motions gran ted I hate to tell you, okay?” Id. The district court’s unwillingness to allow Maceroni and Bernard to withdraw became clearer during its subsequent colloquy with Proge. After hearing from Bernard, the district court asked Proge a few questions about why he wanted to rejecthis plea agreement, but did not ask any substantive questions about Proge’s dissatisfacti on with his attorneys. Id. at 32–34 (Page ID #4208–10).

It was not until three week s later—at a hearing on Apr il 16—that the district court actually asked Proge why he had moved to substitute counsel. First, however, the district court telegraphed its thoughts on the matter : “I think this is a ploy. I think he’s trying to delay the trial. I think he’s trying to in terfere with the administration of justice.” R. 587 (4/16/14 Hr’g Tr.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 31

at 49) (Page ID #9151). By the time Proge reve aled his complete dissatisfaction with his attorneys—“I don’t want attorneys that don’t want me. . . . I don’ t feel that I would get proper representation from them.”—it wa s clear that the district court had already made up its mind. Id. at 52 (Page ID #9154). Put simp ly, the district court predicat ed its inquiry on the background assumption that Proge was trying to disrupt his trial. That inquiry was thus inadequate.
3. Conflict between attorney and client: This factor alone s hould have impelled the district court to grant Proge’s request to substitute counsel.

Consider how Bernard and Maceroni characteriz ed their relationship with Proge in their motion to withdraw: “Both Ms. Bernard and Ms. Maceroni affirmatively state that there has been a complete breakdown in th e attorney-client relationship such that they can no longer be effective advocates for Mr. Proge.” R. 258 (4/3 /14 Mot. to Withdraw at 4) (Page ID #1995). They repeated this claim in a supplement to that motion: “[T]here has been an irreconcilable breakdown in the attorney-client re lationship. Both attorneys believ e, as officers of the Court, that they cannot be effective counsel for Mr. Pr oge.” R. 267 (Supp. to Defense Counsels’ Mot. to Withdraw at 1–2) (Page ID #2050–51).
The district court nonetheless rejected Bern ard’s and Maceroni’s motion to withdraw. R. 282 (4/22/14 Order at 9) (Pag e ID #2152). Curiously, the distri ct court characterized that motion as “ Earnest Proge’s motion for withdrawal of attorneys.” Id. (emphasis added). Not so: it was Proge’s attorneys who were pleading with the distri ct court to release them from representing Proge.
Proge’s attorneys were not finished. Maceron i filed a motion for reconsideration, arguing that her continued representation of Proge would for ce her to violate multiple Michigan Rules of Professional Conduct. R. 284 (Maceroni Mot. for Recons. at 1–2) (Page ID #2159–60). Maceroni added: “[I]n forcing Counsel to continue representing Mr. Proge through trial, Counsel cannot meet her respons ibilities under the Michigan Ru les of Professional Conduct. The ramifications to Counsel’s professional standing will be damaging and long lasting.” Id. at 3 (Page ID #2161).Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 32

Bernard echoed Maceroni’s concerns in a separate motion for reconsideration, writing that she “would not like [her] professional standi ng in the legal community to be compromised as a result of the ineffective and inefficient handling of this matter.” R. 288 (Bernard Mot. for Recons. at 3) (Page ID #2207). Bernard had even more serious concerns. She informed the district court that she had “never handled a crimin al jury trial or bench trial in federal court.” Id. at 2 (Page ID #2206). And she revealed that sh e had “limited knowledge of the [Federal Rules of Evidence] and the [Federal Ru les of Criminal Procedure].” Id.
Presented with a broken attorney-client relati onship, the district court allowed Bernard to withdraw—but ordered Maceroni to continue re presenting Proge. R. 302 (4/28/14 Order at 7) (Page ID #2406). Proge was thus forced to ente r the trial of his life with an attorney who believed adamantly that her professional rela tionship with him was damaged beyond repair.

4. Interests of Justice: This final prong requires us to “consider both [Proge’s] rights and the rights of the public.” Cobb v. Warden, Chillicothe Corr. Inst. , 466 F. App’x 456, 463 (6th Cir. 2012). Plainly, the districtcourt’s denial of Maceroni’s motion to withdraw prejudiced— grievously—Proge’s right to be represented by an attorney of his choosing. In an effort to counterbalance this constitutional violation, the di strict court reasoned that allowing Maceroni to withdraw would have “seriouslyprejudice[d] the administration of justice and the government’s limited public resources.” R. 302 (4 /28/14 Order at 7) (Page ID #2406).
The government saw things differently. Inits April 17 supplemental brief, the government wrote that although allowing Proge to substitute his counsel would impair the government’s interest “in moving [Proge’s] case to completion,” the di strict court should nonetheless allow Proge’s attorney s to withdraw “and require [P roge] to immediately find new counsel.” R. 268 (4/17/14 Gov’t Supp. Br. at 6–7) (Page ID#2058–59). The government repeated this recommendation in its April 28 response submission, where it wrote that “the government continues to believe that the most cautious approach would be to allow counsel to withdraw from the case.” R. 298 (4/18/14 Gov’t Resp. at 1) (Page ID #2370). The government’s repeated request that the district court grant Proge’s motion to substitute counsel undercuts the district court’s conc lusion that the public interest w ould have been best served by denying that motion.Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 33

* * *
“[E]rroneous deprivation of the right to counsel of choice [ca rries] ‘consequences that are necessarily unquantifiable and indeterminate . . . .’” Gonzalez-Lopez , 548 U.S. at 150 (quoting Sullivan v. Louisiana , 508 U.S. 275, 282 (1993)). Here, how ever, at least some of the consequences of the district cour t’s error are crystallin e. In late April 2 014, Proge went to trial represented by an attorney who ha d told him, and the district c ourt, that she was unprepared to defend Proge. He was prosecuted by an Assistant United States Attorney who twice implored the district court to allow Proge to change attorneys. And he was tried by a district judge who responded to Proge’s plaintive requests to subst itute counsel by declaring his belief that Proge was trying to game the system.
The district court’s denial of Proge’s requ est to substitute counsel vitiated a core protection of the Sixth Amendment. That was an abuse of discretion, and I thus join the majority in vacating Proge’s conviction.

II. RIGHT TO SELF-REPRESENTATION
“The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at l east occasionally, be the accused’s best possible defense.” McKaskle v. Wiggins , 465 U.S. 168, 176–77 (1984). “[D]enial of the Faretta right is a structural error for which [a defend ant] need not show any prejudice.” Washington v. Renico , 455 F.3d 722, 734 (6th Cir. 2006). Just so here. Powell validly waiv ed his right to counsel. The district court nonetheless refused to allow Powell to represent himsel f: it first denied Powell’s
Faretta motion after applying the wrong legal standard, then refused to reconsider that denial when the government argued that the district court had er red. Because the district court should have granted Powell’s motion to proceed pr o se, I would vacate Powell’s conviction.
At the outset, I note that our “jurisprudence concerning the standard of review applicable to claims asserting violations of the ri ght to self-representa tion is confused.” United States v.
Evans , 559 F. App’x 475, 478 (6th Cir. 2014); compare United States v. Jones , 489 F.3d 243, 247 (6th Cir. 2007) (de novo) with United States v. Bowker , 372 F.3d 365, 385 (6th Cir. 2004) (abuse of discretion), vacated on other grounds by Bowker v. United States , 125 S. Ct. 1420Nos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 34

(2005). This question remains open in our circuit. See United States v. Williams , 641 F.3d 758, 766 (6th Cir. 2011). Even if we were to review for an abuse of discretion the district court’s denial of Powell’s Faretta motion, as the government recomm ends, I would still reverse.

Faretta set an important limitation on the right to self-representation: “[I]n order to represent himself, the accused must knowingly and intelligently forgo” his Sixth Amendment right to counsel. United States v. Bankston , 820 F.3d 215, 223 (6th Cir. 2016) (quoting Faretta v. California , 422 U.S. 806, 835 (1975)); see also Martinez v. Court of Appeal of California, Fourth Appellate Dist. , 528 U.S. 152, 161 (2000) (“[T]he righ t to self-representation is not absolute. The defendant must voluntarily and intelligently elect to conduct his own defense . . . .” (internal quotation marks and citations omitte d)). To this end, “[w]hen an accused wishes to represent himself, the district court must as k 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. Ross , 703 F.3d 856, 867 (6th Cir. 2012) (internal quotation marks omitted).
The purpose of this inquiry is not to determine whether a defendant will represent himself as well as an attorney would. Rather, it is to en sure that the defendant is “aware of the dangers and disadvantages of self-representation, so that the record will establish that” his waiver of the right to counsel is knowing and voluntary. Faretta , 422 U.S. at 835. Accordingly, “the competence that is required of a defendant s eeking to waive his right to counsel is the competence to waive the right , not the competence to represent himself.” Godinez v. Moran , 509 U.S. 389, 399 (1993).
The district court failed to appreciate this distinction. Powell know ingly and intelligently waived his right to counsel. At the Final Pretrial Conference, Powell’s attorney informed the district court that Powell wished to proceed pro se. R. 490 (Final Pretrial Conference Tr. at 23) (Page ID #4199). The district c ourt held a hearing on Powell’s Faretta motion two weeks later, on April 10, 2014. R. 287 (4/10/14 Hr’g Tr.) (Page ID #2174). At that hear ing, the district court first informed Powell that in no event would it grant a continuance of Powell’s scheduled trial date; Powell said that he understood. Id. at 6–7 (Page ID #2179–80). Powell explained that he wished to represent himself so that he could file documents related to the teachings of theNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 35

Moorish Science Temple—documents, Powell explai ned, that his retain ed attorney was not willing to file. Id. at 7–8 (Page ID #2180–81). The district court told Powell that he could be sentenced to life in prison if he were convi cted; again, Powell said that he understood. Id. at 8–9 (Page ID #2181–82). The district court then asked Powell a series of questions patterned after the Bench Book ; Powell answered each one by acknowledgi ng that he appreciated fully the court’s admonitions about the perils of representing himself at trial. Id. at 9–14 (Page ID #2182– 87). And when the district court asked Powell if he was voluntarily invoking his Faretta right, Powell responded that he was. Id. at 15 (Page ID #2188).
Despite Powell’s knowing and voluntary waiver of his right to counsel, the district court denied Powell’s request, re lying on our decisions in United States v. Sullivan , 431 F.3d 976 (6th Cir. 2005), and United States v. Trujillo , 376 F.3d 593 (6th Cir. 2004). Id. at 17–19 (Page ID #2190–92). That was an error: Sullivan and Trujillo concern the right to counsel of choice, not the right to self-representation. Sullivan , 431 F.3d at 979; Trujillo , 376 F.3d at 606. The government noted this mistake in its motion for reconsideration. R. 263 (4/16/14 Gov’t Mot. for Recons. at 4–5) (Page ID #2006–07). Moreov er, the government wrote that Powell’s Faretta motion arguably “satisfied the c onditions for self-repres entation,” and it implored the district court to reconsider its denial of that motion. Id. at 3, 5–6 (Page ID #2005, 2007–08).

The district court held firm. In an order dated April 23, 2014, the di strict court justified its denial of Powell’s Faretta motion largely on the strength of Powell’s attorney: “Powell ha[d] been ably represented by [his attorney] for over two years,” the district court wrote, and the genesis of Powell’s request for se lf-representation was not his atto rney’s incompetence but rather Powell’s desire to “file additiona l frivolous documents related to the Moorish Scie nce Temple.” R. 286 (4/23/14 Order at 5) (Pag e ID #2171). Powell, the districtcourt reasoned, was simply trying to delay his trial. Id. at 6 (Page ID #2172).
The district court, in other words, did just what Faretta and its progeny forbid. The district court reasoned that Powe ll would probably stand a better ch ance of prevailing at trial if he were represented by counsel. And the district court reasoned that the documents Powell wished to file were, from a legal standpoint, frivolous. It th en denied Powell’s Faretta motion because it determined that the motion must have been a ruse. Thus, although PowellNos. 14-2506/2507/15-1724 United States v. Powell, et al. Page 36

demonstrated that he was competent to waive his right to counsel, the district court erroneously denied that right on the assumption that Powe ll would do a poor job representing himself. Cf. Godinez , 509 U.S. at 399.

Faretta makes plain that a defendant may waive hi s right to counsel ir respective of “his technical legal knowledge” or “how well or poorly [the defendant] has mast ered the intricacies of” trial procedure. Faretta , 422 U.S. at 836. Faretta thus teaches that although a defendant “may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual wh ich is the lifeblood of the law.’” Id. at 834 (quoting Illinois v. Allen , 397 U.S. 337, 350–51 (1970) (Brennan, J., concurri ng)). That respect was absent from the district court’s denial of Powe ll’s request for self-representation.
Powell’s waiver of his right to counsel wa s both knowing and volunt ary. The district court erred by refusing to honor that waiver. And the majority errs in affirming the district court. I would vacate Powell’s conviction on the ba sis of the district court’s violation of Faretta

.