FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit
                                 PUBLISH
                                                              January 10, 2017
                UNITED STATES COURT OF APPEALS
                                                            Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                     Clerk of Court
                     ____________________________________

UNITED STATES OF
AMERICA,

     Plaintiff - Appellee,

v.                                             No. 15-1295

MICHAEL EUGENE
SIMPSON,

     Defendant - Appellant.
                     _________________________________

             Appeal from the United States District Court
                     for the District of Colorado
                  (D.C. No. 1:14-CR-00265-PAB-1)
                     _________________________________

Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver,
Colorado, for Appellant Michael Eugene Simpson.

Robert Mark Russel, Assistant United States Attorney (Robert C. Troyer,
Acting United States Attorney, with him on the briefs), Denver, Colorado
for Appellee United States of America.
                      _________________________________

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit
Judges.
                 _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

     Based on a confidential informant’s report that Mr. Simpson had

drugs and guns, law enforcement officers obtained a search warrant for his
house. The search revealed cocaine, firearms, and ammunition, and a jury

later found Mr. Simpson guilty on 13 counts:

          Count 1: Possession of cocaine with intent to distribute, 21
           U.S.C. § 841(a)(1) (2012);

          Count 2: Possession of a shotgun and ammunition by a felon,
           18 U.S.C. § 922(g)(1) (2012);

          Counts 3-4: Possession of handguns and ammunition by a felon,
           18 U.S.C. § 922(g)(1) (2012);

          Count 5: Possession of an unregistered shotgun, 26 U.S.C.
           § 5861(d) (2012);

          Counts 7-14: Possession of ammunition by a felon, 18 U.S.C.
           § 922(g)(1) (2012).

The district court imposed concurrent sentences of 240 months’

imprisonment for Count 1 and 120 months’ imprisonment for the remaining

counts.

     Mr. Simpson argues that we should reverse the conviction or,

alternatively, the sentence. We affirm the conviction on Count 1

(possession of cocaine with intent to distribute) and Counts 2 and 5

(possession of an unregistered shotgun and ammunition). But we reverse

the conviction on the other counts based on plain error in the jury

instructions, remanding for a new trial. Finally, we reject Mr. Simpson’s

challenge to the sentence on Counts 1, 2, and 5.




                                   2
I.    Mr. Simpson’s Appellate Arguments and Our Conclusions

      Mr. Simpson raises four challenges to his conviction and one

challenge to his sentence.

      First, Mr. Simpson asserts that he should have been allowed to

represent himself at trial. We reject this assertion.

      At a hearing on the morning of trial, Mr. Simpson presented two

motions: a written motion to represent himself and an oral motion to

continue the trial. The district court asked Mr. Simpson if he was prepared

to represent himself without a continuance, and he responded that he was

not. From this exchange, the district court apparently understood that Mr.

Simpson was not asking to represent himself if the trial were to proceed

that morning. Based on this apparent understanding, the court denied the

motion for self-representation, reasoning that it had been untimely. Mr.

Simpson contends that his self-representation motion was not conditioned

on a continuance and was timely.

      We conclude that the court did not violate Mr. Simpson’s right to

self-representation. After denying a continuance, the district court did not

address the possibility that Mr. Simpson might want to represent himself at

that morning’s trial. But if Mr. Simpson wanted to do that, he needed to

make his desire clear. He didn’t, for he never told the district court

whether his self-representation motion was (1) a stand-alone motion or (2)


                                    3
conditioned on the grant of a continuance. As a result, the district court did

not err in treating the motion for self-representation as conditioned on the

grant of a continuance.

      The district court also properly ruled that Mr. Simpson’s motion for

self-representation had been untimely. In the district court’s view, Mr.

Simpson knowingly waited until the beginning of trial to seek a

continuance, using the request as a delay tactic. This reasoning was

permissible in light of Mr. Simpson’s previous request for a continuance

immediately before the trial was to begin.

      Second, Mr. Simpson challenges the denial of the request for a

continuance. We reject this challenge. The court had already granted one

last-minute continuance to Mr. Simpson and had no obligation to grant a

second last-minute request.

      Third, Mr. Simpson challenges the handling of a discovery request.

The request stemmed from the government’s installation of a pole camera

outside of Mr. Simpson’s house prior to the execution of the search

warrant. When Mr. Simpson learned of the camera, he asked for the

footage, but the government answered that the footage was no longer

retrievable because the camera’s hard drive had crashed. Mr. Simpson then

asked to conduct his own inspection of the hard drive, but the district court

denied the request. Mr. Simpson challenges the denial of that request,




                                   4
arguing that denial of this request violated the Federal Rules of Criminal

Procedure and the U.S. Constitution. We reject these challenges.

     Under the federal rules, Mr. Simpson would be entitled to discovery

only if he had made a prima facie showing that the hard drive would help

his defense. In his discovery motion, he tried to meet this standard by

suggesting that the hard drive might support a motion to suppress the

search warrant. In the motion, Mr. Simpson explained that the footage

might be recoverable from the hard drive and, if so, the footage might

show that the police informant had lied to law enforcement.

     But even if these possibilities materialized, they would not have

justified suppression of evidence: The movant cannot obtain suppression of

evidence by challenging the informant’s truthfulness; instead, the movant

must show that the police affiant knowingly or recklessly submitted false

information. Thus, Mr. Simpson’s discovery motion provided no reason to

believe that Mr. Simpson could satisfy his burden on a motion to suppress.

     We also reject Mr. Simpson’s constitutional challenges. Mr. Simpson

did not make these challenges in district court; thus, we review the

constitutional challenges only for plain error. Any possible error would not

be plain, for we cannot easily infer that the hard drive would have

supported Mr. Simpson’s defense or that the police had acted in bad faith.

     Fourth, Mr. Simpson challenges a jury instruction that defined

“constructive possession.” As Mr. Simpson argues, the instruction failed to


                                  5
include an element of constructive possession: that the defendant had the

“intent” to exercise dominion or control over the guns, ammunition, or

drugs. This challenge was not raised in district court; thus, we apply the

plain-error standard.

      We reject this challenge as it pertains to Counts 1, 2, and 5. On

Count 1, the jury found Mr. Simpson guilty of possession with intent to

distribute cocaine. On Counts 2 and 5, the jury was presented with

uncontroverted evidence that Mr. Simpson had held a loaded shotgun and

had tried to sell it. Thus, for Counts 1, 2, and 5, the omission of “intent”

from the jury instruction did not result in prejudice, which forecloses

reversal under the plain-error standard.

      For the remaining counts, however, we agree with Mr. Simpson. The

jury instruction constituted an obvious error that was reasonably likely to

create prejudice and to seriously affect the fairness, integrity, or public

reputation of the judicial proceedings. As a result, we reverse the

conviction on these counts and remand for a new trial.

      Fifth, Mr. Simpson contends that the district court erred in increasing

the sentence based on Sentencing Guideline § 3C1.2, “Reckless

Endangerment During Flight.” According to Mr. Simpson, he was sleeping

in his vehicle when police surrounded him and ordered him to show his

hands. Rather than comply, Mr. Simpson started his vehicle and rammed a




                                    6
police vehicle parked behind him, leading the district court to find reckless

endangerment of the police.

      Mr. Simpson argues that this conduct was not reckless because he

reacted instinctively, having just been awoken by individuals mistakenly

thought to be assailants. In our view, the district court did not clearly err

in finding that Mr. Simpson had known that he was surrounded by police.

As a result, the district court did not err in applying § 3C1.2 to determine

Mr. Simpson’s sentence.

II.   The Right to Self-Representation

      Defendants must clearly assert their constitutional right to self-

representation in order to invoke this right. Thus, if Mr. Simpson wanted to

represent himself even without a continuance, he needed to make clear that

his self-representation motion was not conditioned on the grant of a

continuance. But Mr. Simpson did not make that intent clear.

      Instead, Mr. Simpson appeared to package together his requests for

self-representation and a continuance. In addressing these requests, the

district court reasonably found that Mr. Simpson was seeking self-

representation as a delay tactic. This finding fell within the district court’s

discretion, and the district court did not err in denying Mr. Simpson’s

request to represent himself.




                                    7
      A.    The Sixth Amendment entitles criminal defendants to
            counsel and self-representation, but these rights lie in
            tension with one another.

      The Sixth Amendment provides criminal defendants with the right to

represent themselves. Faretta v. California, 

, 819-20 (1975). 1

But this right lies in tension with the Sixth Amendment right to counsel.

(noting that self-representation “cut[s] against the grain of this

Court’s decisions holding that the Constitution requires that no accused

can be convicted and imprisoned unless he has been accorded the right to

the assistance of counsel”). The right to counsel helps to assure a

defendant a fair trial. 

-33. By contrast, self-representation

ordinarily undermines the defendant’s chance of a favorable outcome.

McKaskle v. Wiggins, 

, 177 n.8 (1984). In light of this reality,

we have noted that the right to counsel serves “both the individual and

collective good,” while the right to self-representation protects only

“individual interests.” United States v. Mackovich, 

, 1237

(10th Cir. 2000) (citation omitted).

      This distinction results in “constitutional primacy” of the right to

counsel. United States v. Smith, 

, 1280 (10th Cir. 2005)

(citation omitted), abrogated on other grounds by Boyle v. United States,



1
      The right to self-representation is also provided in 28 U.S.C. § 1654
(2012) and Federal Rule of Criminal Procedure 44(a). United States v.
Treff, 

, 978 n.4 (10th Cir. 1991).

                                    8


(2009). Partly because of the primacy of that right, a

defendant wanting to proceed pro se must satisfy four requirements:

     First, the defendant must “clearly and unequivocally” inform
     the district court of his intention to represent himself. Second,
     the request must be timely and not for the purpose of delay.
     Third, the court must conduct a comprehensive formal inquiry
     to ensure that the defendant’s waiver of the right to counsel is
     “knowingly and intelligently” made. Finally, the defendant
     “must be ‘able and willing to abide by rules of procedure and
     courtroom protocol.’”

United States v. Tucker, 

, 1180 (10th Cir. 2006) (citations

omitted). In evaluating whether the defendant satisfied these requirements,

we “indulge in every reasonable presumption against waiver.” Brewer v.

Williams, 

, 404 (1977); 

(citation

omitted).

     B.     Standard of Review

     “When a motion to proceed pro se is made, we review de novo

whether a constitutional violation occurred and for clear error the factual

findings underlying the district court’s decision to deny the motion.”

.

     C.     The Necessity of a “Clear and Unequivocal” Request

     Mr. Simpson did not clearly and unequivocally seek an opportunity

to represent himself in the absence of a continuance.




                                   9
      1.    The Necessity of a Clear and Unequivocal Request to Protect
            the Trial Court

      In requiring “clear and unequivocal” expression of a request for

self-representation, we protect not only the defendant but also the

trial court. United States v. Mackovich, 

, 1236 (10th

Cir. 2000); United States v. Miles, 

, 836 (10th Cir.

2009). Without a clear and unequivocal request, the court would face

a dilemma, for an equivocal demand creates a potential ground for

reversal however the trial court rules. 

. If the

court determines that the defendant wants to proceed pro se, the

defendant can assert a violation of the right to counsel; if the court

provides counsel, the defendant can assert a violation of the right to

proceed pro se. 

the self-representation request to be clear and

unequivocal, we prevent the trial court from having to guess at the

defendant’s intent. 

Instead, the court can infer intent from

the defendant’s conduct and representations. 

see also United

States v. Loya-Rodriguez, 

, 858-59 (10th Cir. 2012) (finding

no clear request—even though the defendant expressly stated in a letter

that he wanted to communicate without his attorney—because the letter,

when “taken as a whole,” could “fairly be read” to conclude that the

defendant was not requesting self-representation). Thus, the absence of a



                                   10
clear, unequivocal request can allow the court to reasonably infer that the

defendant does not wish to proceed pro se. 

.

      2.    Mr. Simpson failed to clearly and unequivocally state
            whether he wanted to represent himself even without a
            continuance.

      We conclude that Mr. Simpson did not clearly and unequivocally

seek self-representation if the district court were to deny a continuance.

      On the morning of trial, Mr. Simpson presented the district court

with two motions. The first was a written motion for self-representation.

The motion did not expressly ask for a continuance, but implicitly did so

by mentioning future discovery procedures. R. vol. 1, at 184 (requesting

appointment of advisory counsel to “see that discovery procedures are

followed”). The second was an oral motion for a continuance, which was

based on the request for self-representation. Read together, the two

motions stated that Mr. Simpson wanted to obtain more time for trial and

to represent himself at the eventual trial.

      But what if the court were to deny the requested continuance? The

court explored this possibility, asking Mr. Simpson if he would be

prepared to proceed pro se that day; he replied that he would not. R. vol. 3,

at 167.

      In this setting, Mr. Simpson’s motion for self-representation could

reasonably be read as expressing one of two things:

      1.    I want to represent myself or


                                   11
     2.       I want to represent myself only if the court grants a
              continuance.

The district court believed that Mr. Simpson meant the latter and, as a

result, conflated the two motions and denied them:

     1.       First, the court denied the continuance, stating: “[T]his
              particular motion for a continuance is -- comes too late.”

     2.       Then, after Mr. Simpson presented further argument, the court
              denied the self-representation motion, responding: “I still find
              that the request for you to represent yourself . . . is late.”

176 (emphasis added). Mr. Simpson contends that the district

court should not have conflated the two requests, but we reject this

contention.

     We do so because Mr. Simpson did not clearly and unequivocally

state that he wanted to represent himself even without a continuance. We

must consider Mr. Simpson’s statements in context and consider the

inferences reasonably drawn by the district court. See United States v.

Miles, 

, 837 (10th Cir. 2009) (district court may “reasonably

dr[a]w . . . inference[s]” from a defendant’s action or inaction to decipher

the defendant’s intent). Thus, even when defendants appear to request self-

representation, their other statements or actions may render the requests

unclear or ambiguous. See United States v. Bennett, 

, 50-51

(10th Cir. 1976) (defendant expressly requested self-representation, but his

additional statements rendered his position on self-representation unclear);

see also United States v. Loya-Rodriguez, 

, 858 (10th Cir.


                                    12
2012) (defendant’s statement in a letter that he wanted “to communicate

without the help of an attorney” was unclear, given the context of the letter

and the defendant’s subsequent silence when the district court invited the

defendant to address the court if he wished). 2

      The written self-representation motion indicated a desire to engage in

further discovery. Then, when the pretrial hearing began, Mr. Simpson

orally requested a continuance. This request led the district court to ask

Mr. Simpson if he was prepared to represent himself without a

continuance; Mr. Simpson answered that he was not. This answer led the

court to understand that Mr. Simpson did not want to proceed pro se

without a continuance.

      We do not know if this understanding was correct, but it was at least

reasonable. See 

. Mr. Simpson could easily have

clarified that he wanted to represent himself even without a continuance.

But he admittedly “never asked if this w[ere] an option.” Appellant’s

Opening Br. at 20.

      In similar circumstances, we have indicated that the trial court could

reasonably conclude that defendants wanted to represent themselves only if

certain conditions were met. For example, in Stallings v. Franco, the

defendant filed multiple motions, one stating that he wanted to proceed pro

2
      The dissent appears to agree that the surrounding circumstances
bear on whether a defendant’s request is clear and unequivocal. See
Dissent at 2-4.

                                   13
se but adding: “‘Although I did ask to go pro-se, I am not prepared at this

time for trial, because I do not know the rules and procedures to a New

Mexico jury trial.’” 576 F. App’x 820, 823 (10th Cir. 2014). We concluded

that the defendant had not made a clear, stand-alone self-representation

request, as his motions could reasonably be read as “a request for

conditional . . . representation.” 

in United States v. Smith, the defendant made a self-

representation request, but was unprepared for trial. 

, 1281

(10th Cir. 2005). Even though the defendant did not request a continuance,

we assumed that granting the request “would mandate another lengthy

continuance to allow Mr. Smith to prepare for his own defense.” Id.; see

also United States v. Tucker, 

, 1181 (10th Cir. 2006) (noting

that in Smith, the need for a continuance was a “case-specific factor[] that

made it proper for the district court to deny the defendant’s motion”).

      We have also held that a defendant’s request is not unequivocal when

it simultaneously appears to request self-representation but adds a

qualification that confuses what the defendant wants. For example, in

United States v. Callwood, the defendant asserted that he preferred not to

be represented by counsel, but he also said that he “at least” wanted to

question a witness himself. 

, 1114 (10th Cir. 1995). We noted

that the defendant had “never made any other statement regarding his

3
      Though Stallings is not precedential, we regard it as persuasive.

                                     14
desire for self-representation.” 

Thus, we held that the

defendant had not unequivocally requested an opportunity to represent

himself. 

issue arose in United States v. Bennett, 

(10th

Cir. 1976). There the defendant asked to represent himself only at

particular portions of the trial (hybrid representation). 

. After the court denied that request, the defendant requested self-

representation and the court granted his request. 

But then the

defendant reiterated that he preferred hybrid representation, causing the

court to reinstate counsel. 

led the defendant to renew his

motion for self-representation. 

that the defendant’s

motions and statements, in context, failed to present “a clear and

unequivocal position on self-representation.” 

      Drawing on these opinions for guidance, 4 we conclude that Mr.

Simpson did not clearly and unequivocally say whether his self-

representation motion was a conditional motion or a stand-alone motion. 5


4
      The dissent distinguishes some of these cases, stating that they
entail greater ambiguity than exists here. Dissent at 5-7. Certainly
the facts differ in each case, but they show that the surrounding
circumstances can make a request for self-representation unclear or
equivocal.
5
      Mr. Simpson argues that the district court should have clarified
whether he wished to proceed pro se even without a continuance. See p. 19,
below. In making this argument, Mr. Simpson implicitly appears to
recognize that his request to proceed pro se was unclear in light of the

                                   15
We can draw two reasonable conclusions: (1) Mr. Simpson wanted to

represent himself even without a continuance, or (2) he wanted to represent

himself only if he obtained additional time. We read the record with a

presumption favoring exercise of the right to counsel; 6 we do not presume

that Mr. Simpson wanted to represent himself unprepared.

      The dissent disagrees, characterizing Mr. Simpson’s request for self-

representation as clear and unambiguous. Dissent at 2-4. In our view, the

approach fails to accord deference to the district court’s consideration.

This deference is particularly appropriate in light of the presumption

favoring exercise of the right to counsel. United States v. Smith, 

, 1280 (10th Cir. 2005); see pp. 8-9, above.

      There were two possible ways to read the record. The dissent points

to one possibility: that Mr. Simpson wanted to represent himself with or


denial of a continuance. See Appellant’s Opening Br. at 17 (“[T]he court
assumed without asking Mr. Simpson that in the absence of a continuance,
he would prefer to proceed to trial with his court-appointed counsel . . . .”
(emphasis added)); Oral Argument at 2:14-2:35 (response by Mr.
Simpson’s counsel—after being asked whether Mr. Simpson had
unequivocally expressed an intent to proceed pro se without a
continuance—stating that “the record isn’t quite that clear” (emphasis
added)); 

(“There was never a question to Mr. Simpson
saying, look, I’m not going to give you a continuance, so you . . . have to
pick, you have to go to trial with [your attorney] or you can represent
yourself. And that’s what we’re missing here.” (emphasis added)); 

(“Because the court treated the two [motions] as being one
motion . . . we never got the answer as to whether Mr. Simpson wanted to
represent himself even with no continuance.” (emphasis added)).
6
      See pp. 8-9, above.

                                  16
without a continuance and referred to future discovery only because he

hoped that he would obtain more time to prepare. Dissent at 3. But this is

not the only possibility. Mr. Simpson may have wanted to represent

himself only if he had time to prepare. After all, he moved for a

continuance shortly after requesting self-representation. And when

presenting the two motions, Mr. Simpson stated that he was unprepared to

represent himself without more time. Without an unequivocal request by

Mr. Simpson, the district court could reasonably infer that the motion for

self-representation had been conditioned on the grant of a continuance.

      3.    The government argued that in context, Mr. Simpson had
            failed to clearly and unequivocally seek self-representation
            in the absence of a continuance.

      The dissent questions the existence of an issue involving the clarity

of Mr. Simpson’s right to self-representation, stating that the government

did not raise the issue either in district court or on appeal. Dissent at 1-2.

We respectfully disagree.

      In district court, the government was never asked for its position on

self-representation. This issue did not arise until the day of trial, so the

government never had an opportunity to brief the issue. When the parties

appeared for trial, the district court questioned Mr. Simpson, who said that

he was unprepared to represent himself that day. The court then denied Mr.

Simpson’s motions, and Mr. Simpson proceeded to trial with counsel

without further objection. At this point, the government would have had


                                   17
little to say, for Mr. Simpson’s self-representation motion appeared to be

intertwined with his continuance request. Presumably for that reason, the

government was likely unaware that Mr. Simpson would eventually argue

that he had wanted to represent himself even without a continuance. Thus,

the government’s silence in district court tells us little. 7

         This issue arose on appeal, and the government spoke up. Like the

district court, the government interpreted Mr. Simpson’s request for self-

representation as conditional on a continuance: “Simpson plainly stated

that he was not able to represent himself on the day of trial. V.1 at 167. It

was abundantly clear that Simpson’s request for self-representation was

inherently linked to a request for significant delay.” Appellee’s Resp. Br.

at 13.

         The government did not question the clarity of the request for self-

representation if the district court were to continue the trial. Nor do we.

The difficulty lies if the court were to deny a continuance of the trial. In

that circumstance, the government argues that Mr. Simpson did not ask for


7
      After trial, Mr. Simpson filed a pro se motion for a new trial,
alleging denial of his right to self-representation. The government
did not respond to that motion. The dissent states that the
government could have responded. That is true, but the government
would have had little reason to do so. Mr. Simpson’s argument on
self-representation consisted of only a single sentence: “Mr. Simpson
was denied constitutional right to self presentation [sic].” R. vol. 1,
at 179. From this sentence, the government could not have known
that Mr. Simpson would eventually claim that he had wanted to
represent himself even without a continuance.

                                     18
self-representation. We do not go as far as the government does; rather, we

simply conclude that Mr. Simpson failed to clearly and unequivocally say

whether his request for self-representation was conditioned on a

continuance.

      4.    The district court was not required to further inquire into
            Mr. Simpson’s intent.

      Mr. Simpson argues that the district court should have asked for

clarification. But we have never required a district court to clarify an

equivocal request. See United States v. Tucker, 

, 1180 (10th

Cir. 2006) (noting that if a defendant does not “properly invoke[] his right

to self-representation,” the district court can deny the request); United

States v. Taylor, 

, 1143 (10th Cir. 1997) (noting that only

after a defendant makes an “unmistakable” self-representation request is

the trial court obligated to ensure that the defendant knowingly and

intelligently intends to waive counsel).

      In light of our presumption against waiver of the right to counsel, we

conclude that Mr. Simpson did not make an unequivocal request for self-

representation in the absence of a continuance. Thus, the district court had

no obligation to clarify Mr. Simpson’s intent.

      5.    The district court’s statements about Mr. Simpson’s lack of
            preparedness do not change the result.

      In denying the motion, the district court commented on Mr.

Simpson’s lack of preparedness to represent himself without a continuance:


                                   19
      [T]his particular motion for a continuance is -- comes too late.
      It’s on the day of trial. Mr. Simpson is not in a position to
      represent himself on this matter. . . .

            . . . [C]oming once again on the day of trial, the request
      to continue the trial, especially given the fact that Mr. Simpson
      is not in a position, understandably, since he is not an attorney,
      to step in and represent himself is too late.

R. vol. 3, at 169. But criminal defendants have a right to self-

representation even when they are unprepared. Godinez v. Moran, 

, 400 (1993). Pointing to this right, Mr. Simpson suggests that the

district court erred by disallowing self-representation based on a lack of

preparedness.

      This suggestion is unpersuasive. A district court’s comments

regarding a defendant’s lack of preparedness do not automatically justify

reversal. Here, the comments did not drive the ruling, for the district court

apparently believed that Mr. Simpson had conditioned his self-

representation motion on the grant of a continuance.

      Though Mr. Simpson’s characterization is possible, the court’s

comments are ambiguous; we therefore will not construe the comments as

improper. See United States v. Nacchio, 

, 1242 (10th Cir.

2009) (en banc) (“When a district court’s language is ambiguous . . . it is

improper for the court of appeals to presume that the lower court reached

an incorrect legal conclusion.” (ellipsis in original) (quoting Sprint/United

Mgmt. Co. v. Mendelsohn, 

, 386 (2008))).



                                  20
        Our case law permits us to affirm the district court, notwithstanding

the court’s statements about a defendant’s lack of preparedness, if the

district court’s decision appears to be justified by a valid reason. For

example, in United States v. Smith, the district court denied the motion for

self-representation, commenting that the defendant was “not capable of

representing [him]self because of [his] inability to handle these kinds of

complex issues.” 

, 1280 (10th Cir. 2005). We observed that

the court’s comments were not dispositive:

        While we agree with Mr. Smith that his knowledge of the law
        and his ability to represent himself have no bearing on his
        choice to proceed pro se, several other reasons support the
        District Court’s decision.

(citation omitted). In light of this observation, we

upheld the denial of the defendant’s motion for self-representation. 

        Similarly, in United States v. Bennett, the district court denied the

defendant’s self-representation motion on two grounds, one of which was

the defendant’s lack of qualifications to conduct a trial. 

, 50

(10th Cir. 1976). As in Smith, we acknowledged that a defendant’s “lack[]

[of] expertise or professional capabilities [could not] justify denying the

right of self-representation.” 

Nonetheless, we affirmed because

the record had shown forfeiture of the right to self-representation. 

Simpson relies on United States v. Baker, 

(10th

Cir. 1996), and United States v. McKinley, 

(10th Cir. 1995),

but reliance on these opinions is misplaced. In these cases, the district

courts did not provide valid reasons to disallow self-representation. In

Baker, the district court relied solely on its concern that the defendant had

lacked legal knowledge and would do a poor job of representing himself.

, 1267 (10th Cir. 1996). In McKinley, the district court gave

two reasons for denying the request for self-representation: the defendant’s

inability to competently represent himself and his use of the request for

self-representation as a delay tactic. 

, 1481-82 (10th Cir.

1995) (emphasis omitted). But, we rejected both reasons. 

McKinley are distinguishable because in the present case,

the district court’s ruling is supported by a valid reason: the absence of a

clear, unequivocal request for self-representation in the absence of a

continuance.

      D.    The district court properly denied Mr. Simpson’s motion for
            self-representation as untimely.

      Having interpreted Mr. Simpson’s motion for self-representation as

conditioned on the request for a continuance, the court concluded that the

motion was untimely. According to Mr. Simpson, his motion was timely

because it preceded impanelment of the jury. The government responds that

the district court viewed the motion as untimely because it had constituted



                                   22
a tactic for delay. In our view, the district court made a finding of

improper delay and this finding was reasonable under the record.

      1.    A motion for self-representation is timely if it precedes
            impanelment of the jury unless the motion constitutes a
            delay tactic.

      Until we addressed the issue in United States v. Tucker, our circuit

had not clearly said what it meant for a motion to be “untimely.” In United

States v. Mackovich, we set forth the requirements for a defendant to

invoke the right to self-representation. 

, 1236 (10th Cir.

2000). These requirements included the making of a request for self-

representation “in a timely fashion.” 

did not expressly

mention “delay” in articulating the timeliness requirement, we affirmed

because the defendant’s motion had constituted an attempt “to delay the

trial.” 

We tied the concept of “delay” to the requirement of a

clear, unequivocal request (the first requirement), stating that because the

motions had been intended to delay the proceedings, they had not qualified

as “unequivocal requests for self-representation.” 

States v. Akers, we cited Mackovich and identified the

same list of requirements. 

, 1097 (10th Cir. 2000). We held

that the defendant’s motion was “timely” because it had preceded the trial.

upheld the denial of the defendant’s self-representation motion

because it constituted a delay tactic. 

We treated this




                                   23
concept of “delay” as an additional requirement rather than nesting it

within one of the previously established requirements. See 

      The waters were muddied in United States v. Smith, 

(10th Cir. 2005). There we held that the defendant’s motion was untimely

because it constituted a delay tactic even though the motion had been made

six days before trial. 

. This determination seemed

to conflict with Akers. Under Akers, Mr. Simpson’s motion would have

appeared timely because it had preceded the trial.

      Clarity came with United States v. Tucker, 

(10th Cir.

2006). In Tucker, we acknowledged the lack of clarity regarding when a

self-representation motion is 

. In creating a new

bright-line rule, we explained that the concept of “delay” relates to the

timeliness of the request: “[A] motion for self-representation is timely if it

is made before the jury is impaneled, unless it is a tactic to secure delay.”

Our opinion in Tucker clarifies that a motion for self-

representation is untimely when

           the jury has already been impaneled or

           the defendant is attempting to delay the proceeding.




                                   24
      2.     The district court properly found that Mr. Simpson’s self-
             representation motion had constituted a tactic for delay.

      The resulting inquiry involves two steps. First, did the district court

make a finding of delay? Second, if the court made this finding, was it

erroneous?

      The district court made a delay finding. The district court did not

expressly state that Mr. Simpson was trying to delay the proceeding. But

we conclude that the district court did so implicitly.

      In denying Mr. Simpson’s motion, the district court apparently

applied the new rule set out in Tucker. There we listed three factors

bearing on consideration of the delay:

      [T]he determination whether a motion for self-representation is
      a tactic to secure delay . . . includes such considerations as
      [(1)] the actual delay that would be caused by granting the
      motion, [(2)] whether the delay could have been avoided if the
      defendant had made the request for self-representation earlier,
      and [(3)] whether the defendant had good reasons for not
      making the motion in a more timely manner.

. The district court tracked each factor in

finding that the motion was untimely.

      Tucker Factor No. 1 (actual delay). The district court expressed

concerns of actual delay, noting that a continuance of the trial would

disrupt the court calendar and “inconvenience government witnesses”

because “everyone [was] ready to go.” R. vol. 3, at 169-70.




                                   25
      Tucker Factor No. 2 (whether delay could have been avoided). Mr.

Simpson claimed that he had decided to represent himself two weeks prior

to trial. 

But the district court concluded that Mr. Simpson

could have avoided the delay, for he waited to file his motion or raise the

self-representation issue with his attorney until the day that the trial was to

begin. 

171-72, 176.

      Tucker Factor No. 3 (whether the defendant had provided good

reasons for the delay). The district court concluded that Mr. Simpson had

not provided good reasons for the delay. 

(“The reason [Mr.

Simpson] asks for a continuance I find is not a good one.”). This

conclusion contained three parts. First, the court discounted Mr. Simpson’s

assertion that he had not known when the trial was to begin. 

(“[T]here is no reasonable expectation that there wouldn’t be a trial

. . . .”). Second, the court rejected Mr. Simpson’s explanation for his

dissatisfaction with his attorney. 

, 175. Finally, the court noted

that Mr. Simpson had previously made a last-minute motion for a

continuance. 

(noting that Mr. Simpson had made his request

“once again” on “the day of trial”).

      The district court’s statements also reflected a finding of delay. For

example, the court asked Mr. Simpson why he had “delay[ed] in filing this

particular motion.” 

(emphasis added).




                                     26
      Finally, under Tucker, a finding that a motion is “untimely” can have

only two meanings: (1) the jury had been impaneled or (2) the defendant

was trying to delay the trial. See p. 24, above. Because the jury had not

been impaneled, the district court’s explanation implied that Mr. Simpson

had requested self-representation as a delay tactic.

      Of course, it is possible that the district court did not know the law.

For example, the district court may not have read Tucker. So perhaps the

district court’s timeliness finding was based on something other than

delay. But we decline to presume that possibility. “When a district court’s

language is ambiguous . . . it is improper for the court of appeals to

presume that the lower court reached an incorrect legal conclusion.”

United States v. Nacchio, 

, 1242 (10th Cir. 2009) (en banc)

(ellipsis in original) (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 

, 386 (2008)). Thus, we can fairly interpret the district court’s

ruling as based on Mr. Simpson’s use of a delay tactic.

      The record supports the district court’s findings. Mr. Simpson

asserts two primary challenges to the district court’s reasoning: (1) He

made his motion as soon as he could, and (2) the district court improperly

relied on the previous request for a continuance on the day of trial.

      We reject these challenges. Mr. Simpson argues that he made his

motion on the day of trial because he had just learned that his attorney had

failed to file various motions. Appellant’s Opening Br. at 21-22. But, at


                                   27
the pretrial hearing, Mr. Simpson admitted that he had actually decided

two weeks earlier to represent himself. R. vol. 3, at 170-72. He explained

that he had made this decision based on his attorney’s refusal to file

various motions. 8 

When asked why he had waited to seek

self-representation, Mr. Simpson said that he had needed to consult with

his attorney. 

. But Mr. Simpson’s attorney said that he had not

known about the request for self-representation until the morning of trial,

and the district court credited the attorney’s version of events. 

176. The district court did not err by believing the attorney over Mr.

Simpson. 9




8
     After learning that his attorney would not file these motions, Mr.
Simpson filed the motions on April 1, 2015, five days before trial. He
could have filed his self-representation motion then. Alternatively, he
could have requested self-representation when he appeared at the trial
preparation conference on April 3, 2015. Instead, Mr. Simpson waited until
the day of trial.
9
      The dissent acknowledges that Mr. Simpson decided to
represent himself two weeks before trial. Dissent at 10. But the
dissent then characterizes this as only an “inclination” that Mr.
Simpson decided to “act on” only later. 

The record does not
support this characterization: Mr. Simpson said that he had decided
to represent himself two weeks before trial, but admitted that he had
waited to file the motion because he wanted to consult with his
attorney about how that scenario would procedurally work. R. vol. 3,
at 170-72.


                                   28
       The district court also properly relied on Mr. Simpson’s prior request

for a continuance. 10 Mr. Simpson points out that the court had described

that request as “totally appropriate” and acknowledged that Mr. Simpson

had lacked “much control over that situation.” 

; see Appellant’s

Opening Br. at 22. But those comments are not dispositive. When granting

the initial continuance, the district court warned Mr. Simpson not to make

another last-minute request for a continuance. R. vol. 3, at 746 (noting that

Mr. Simpson “had [not] been diligent with this request” and stating that

any future last-minute motions “would be highly suggestive of some

manipulation by Mr. Simpson”). In light of this warning, we conclude that

the district court properly relied on the fact that it had already granted a

continuance on the day that the trial was to begin. As a result, we reject

Mr. Simpson’s challenge to the finding on timeliness.

III.   We affirm the denial of Mr. Simpson’s request for a continuance.

       Mr. Simpson also challenges the denial of his request for a

continuance. We reject this challenge.

       In considering this challenge, we apply the abuse-of-discretion

standard. United States v. Rivera, 

, 1475 (10th Cir. 1990) (en

banc). This standard requires us to consider Mr. Simpson’s diligence in

requesting a continuance, the likelihood that a continuance would

10
      Mr. Simpson’s trial had previously been scheduled for December 15,
2014. On that morning, Mr. Simpson moved to substitute counsel and
continue the trial. The district court granted this request.

                                   29
accomplish the stated purpose, the inconvenience from the requested

continuance, Mr. Simpson’s demonstration of need for the continuance, and

the expected harm to Mr. Simpson from denial of the continuance. 

provide reasonable support for the district

court’s ruling. The district court had previously obtained a last-minute

continuance based on a change in counsel, and Mr. Simpson admits that

another last-minute continuance “would have inconvenienced the court and

the prosecution.” Appellant’s Opening Br. at 22. The inconvenience would

affect not only the court and the prosecution but also jurors and witnesses:

      Of course, any continuance granted practically on the eve of
      trial inevitably will disrupt the schedules of the court, the
      opposing party, and the witnesses who have been subpoenaed
      or who have voluntarily arranged their schedules to attend the
      trial. When, as here, a jury trial is involved, there is additional
      potential inconvenience to jurors and to the court.

United States v. Rivera, 

, 1475 (10th Cir. 1990) (en banc)

(footnote omitted).

      Mr. Simpson’s only stated justification for the continuance was his

desire to represent himself, but that request had been denied. Thus, the

district court did not abuse its discretion when denying another

continuance of the trial.

IV.   The Pole Camera

      In their investigation, the police used information from a confidential

informant. The informant told police that on June 12, 2014, he had seen



                                   30
Mr. Simpson leave his house with a firearm. This information was included

in an affidavit used to obtain a search warrant for Mr. Simpson’s house.

      After the warrant was executed, Mr. Simpson learned that police had

installed a “pole camera” outside of his home on June 5, 2014. Mr.

Simpson thought that the footage might show that he had not left his house

with a firearm on June 12. As a result, he requested the footage. The

government responded that the footage had been stored on a hard drive, but

added that the hard drive had crashed, rendering the footage unavailable.

      Mr. Simpson moved for authorization to inspect the hard drive. He

explained that he might be able to recover the footage, which could reveal

that the informant had lied about Mr. Simpson leaving his house with a

firearm. If the informant had lied, Mr. Simpson theorized, he could move

to suppress the results of the search:

      If in fact [the informant] fabricated that information . . . and if
      law enforcement officers knew or should have known of the
      fabrication, that information should have been included in the
      affidavit in support of the application for the search warrant. It
      was not so included, and discovery thereof would give
      Defendant Simpson grounds for a second motion to suppress
      the results of the search warrant on the grounds that
      exculpatory material was omitted, either deliberately or with
      reckless disregard, from the search warrant affidavit.

R. vol. 1, at 93 (footnote omitted). The district court denied the motion.

According to Mr. Simpson, this denial violated Federal Rule of Criminal

Procedure 16, Brady v. Maryland, and Arizona v. Youngblood. We reject

these arguments.


                                   31
      A.    Federal Rule of Criminal Procedure 16

      Under Federal Rule of Criminal Procedure 16(a)(1)(E)(i), a criminal

defendant enjoys a right to discovery of information that is “material to

preparing the defense.” The district court did not err in applying this rule.

      1.    Mr. Simpson bore the burden to make a prima facie showing
            of materiality, and we review the district court’s ruling only
            for an abuse of discretion.

      The defendant bears the burden to make a prima facie showing of

materiality. United States v. Carrasquillo-Plaza, 

, 12 (1st Cir.

1989); 2 Charles Alan Wright, Federal Practice and Procedure § 254 (4th

ed. 2009). The district court ruled that Mr. Simpson had not made this

showing. We review this ruling only for an abuse of discretion. United

States v. Apperson, 

, 1191 (10th Cir. 2006).

      2.    In his discovery motion, Mr. Simpson did not make a prima
            facie showing of materiality.

      In his discovery motion, Mr. Simpson speculated that the footage

could diminish the informant’s veracity, which in turn could provide

grounds to suppress the results of the search warrant. But to justify

suppression, Mr. Simpson needed to attack the veracity of the police

affiant, not the informant. United States v. Long, 

, 661 (10th

Cir. 2014). Thus, the district court concluded that Mr. Simpson’s theory

would not support suppression of the evidence. R. vol. 3, at 824.




                                   32
      This ruling fell within the district court’s discretion. In the discovery

motion, Mr. Simpson stated that the police might have knowingly or

recklessly omitted information in the affidavit accompanying the

application for a search warrant. But Mr. Simpson did not indicate how

access to the hard drive would help to show that the police affiant had

knowingly or recklessly omitted information. As a result, the district court

did not abuse its discretion in denying Mr. Simpson’s discovery motion.

      3.    Mr. Simpson’s new arguments are not persuasive.

      On appeal, Mr. Simpson makes two new arguments for materiality of

the hard drive:

      1.    The police might have known that the confidential informant
            had provided false information, as one of the police officers
            testified at trial that he had been able to view some of the
            footage. 11

      2.    Access to the hard drive might have allowed impeachment or
            rebuttal of the confidential informant’s trial testimony. 12

Because Mr. Simpson did not make these arguments in district court, our

review is only for plain error. Molina-Martinez v. United States, 

, 1343 (2016). The plain-error standard contains four elements:


11
    The officer indicated that he had been able to log into a specified web
address to view the footage in real time. He did not state that he had
viewed the footage downloaded onto the hard drive.
12
     Mr. Simpson also alleges that the police affiant failed to mention the
installation of the pole camera or to explain why the footage had not been
reviewed. Appellant’s Opening Br. at 29. But Mr. Simpson could have
made these allegations without the footage.

                                   33
     1.       The district court made an error.

     2.       The error was plain.

     3.       The error affected the defendant’s substantial rights.

     4.       The error seriously affected the fairness, integrity, or public
              reputation of judicial proceedings.

United States v. Mendiola, 

, 1036 (10th Cir. 2012). In

rejecting Mr. Simpson’s arguments, we rely on the third element, which

requires a “reasonable probability” that the outcome would be different. 

     This burden entails more than allegations about what the video would

show. Instead, Mr. Simpson had to show prejudice based on evidence. See

United States v. Gonzales-Huerta, 

, 736 (10th Cir. 2005) (en

banc) (holding that the defendant “bears the burden to establish by a

reasonable probability based upon the record on appeal that his substantial

rights were affected”).

     Mr. Simpson cannot satisfy this burden because he cannot show what

would be depicted on the video. This inability is not Mr. Simpson’s fault;

nonetheless, this inability prevents Mr. Simpson from satisfying the third

element of the plain-error standard.

     B.       Brady v. Maryland

     Mr. Simpson argues that the government’s failure to provide the hard

drive violated the government’s disclosure obligations under Brady v.



                                     34
Maryland, 

, 87 (1963). Because Mr. Simpson did not make this

argument in district court, our review is for plain error. Molina-Martinez v.

United States, 

, 1343 (2016). For the second element, an

error is considered “plain” only if it is “so clear or obvious that it could

not be subject to any reasonable dispute.” United States v. Courtney, 

, 684 (10th Cir.), cert. denied, 

(Oct. 3, 2016).

      To prevail on his Brady claim in district court, Mr. Simpson had to

demonstrate three elements:

      1.    The prosecution suppressed evidence.

      2.    That evidence was favorable to Mr. Simpson.

      3.    The suppressed evidence was material.

United States v. Acosta-Gallardo, 

, 1117 (10th Cir. 2011).

      To decide this issue, we apply the second element of the plain-error

test (the existence of an obvious error) to the second element of Mr.

Simpson’s underlying claim (the favorable nature of the suppressed

evidence). In our view, Mr. Simpson has not satisfied his burden because

the hard drive would not obviously have favored Mr. Simpson.

      Our opinion in United States v. Acosta-Gallardo is persuasive. 

case, the police waited too long to disclose that a witness would

testify about the defendant’s handling of various jars used to store

methamphetamine. 

alleged a Brady violation, arguing

that if he had known about the proffered testimony earlier, he would have


                                   35
requested a continuance and had the jars fingerprinted. 

the defendant, the fingerprinting results might have been exculpatory. 

that the defendant had failed to satisfy Brady’s favorability

element, as “no one knows whether the results would have been favorable

to [the defendant].” 

one knows whether the hard drive would have been

favorable to Mr. Simpson. Mr. Simpson would need to successfully retrieve

the footage from the crashed hard drive and then show that the footage had

not depicted him brandishing a firearm. Thus, the footage was not plainly

favorable to Mr. Simpson’s defense. 13


13
     The Supreme Court’s opinion in Pennsylvania v. Ritchie does not
suggest otherwise. There a defendant accused of rape had requested access
to an agency’s file on the victim and a purported medical report. 

, 43-44 (1987). The agency asserted that no medical report existed, and
the prosecution was not aware of any such report. 

& n.4. Thus,
the trial judge refused to compel the agency to turn over the victim’s file.

. The Pennsylvania Supreme Court reversed, holding that the
defendant was entitled to review the agency’s file. 

       The U.S. Supreme Court affirmed in relevant part under Brady v.
Maryland. 

The Court acknowledged that it was “impossible to
say whether any information in the [agency] records may be relevant to
[the defendant’s] claim of innocence, because neither the prosecution nor
defense counsel ha[d] seen the information.” 

Nevertheless, the
Court remanded for the trial court “to determine whether [the file] contains
information that probably would have changed the outcome of his trial.”

     On its face, Ritchie appears to involve similar facts. Like the
defendant in Ritchie, Mr. Simpson sought information that may or may not
be exculpatory. But Ritchie is distinguishable for two reasons.


                                  36
     C.    Arizona v. Youngblood

     Mr. Simpson also relies on Arizona v. Youngblood, where the

Supreme Court held that the police’s bad-faith failure to preserve

potentially exculpatory evidence may violate the right to due process. 

, 58 (1988). Mr. Simpson asserts that the district court should have

inquired into the circumstances in which the hard drive crashed. Because

Mr. Simpson did not make this argument in district court, we confine our

review to the plain-error standard. See pp. 33-34, above. Under this

standard, we reject Mr. Simpson’s argument, for the existence of a

Youngblood violation was not obvious. 14

     Five factors bear on the inquiry into bad faith:



      First, the Ritchie Court was not reviewing Brady’s favorability
requirement. Rather, the Court was responding to the State’s specific
arguments regarding the third Brady prong (materiality). Because the Court
was not considering Brady’s favorability prong, our opinion in Acosta-
Gallardo constitutes the governing precedent. See United States v. L.A.
Tucker Truck Lines, Inc., 

, 37-38 (1952) (stating that an
opinion does not constitute binding precedent on an issue not discussed).

      Second, unlike in Ritchie, we are reviewing the district court’s ruling
under the plain-error standard. See United States v. Mota, 

,
649 (7th Cir. 2012) (noting that the plain-error standard in the Brady
context is stricter than the general Brady standard). We do not foreclose
the possibility that an error might have taken place; rather, we simply hold
that any error would not have been plain.
14
     Mr. Simpson also cites California v. Trombetta, 

, 489
(1984), where the Supreme Court held that the police must generally
preserve evidence with “apparent” exculpatory value. But Mr. Simpson’s
brief makes no argument supporting application of the Trombetta standard.

                                  37
      (1) whether the government had explicit notice that [the
      defendant]     believed   the [evidence]   was    exculpatory;
      (2) whether the claim that the evidence is potentially
      exculpatory is conclusory, or instead “backed up with
      objective, independent evidence. . .” ; (3) whether the
      government could control the disposition of the evidence once
      [the defendant] indicated that it might be exculpatory;
      (4) whether the evidence was central to the case; and
      (5) whether the government offers any innocent explanation for
      its disposal of the evidence.

United States v. Smith, 

, 1224-25 (10th Cir. 2008) (citation

omitted). Two factors weigh against Mr. Simpson.

      First, Mr. Simpson’s claim is conclusory, for he has no way of

knowing whether the hard drive would have contained anything

exculpatory.

      Second, the government had an innocent explanation for the loss of

the footage: The hard drive crashed.

      Mr. Simpson argues that further inquiry might have generated proof

of bad faith. But again, the district court did not plainly err by failing to

inquire further.

      According to Mr. Simpson, the court “never conducted any inquiry

into whether the government had knowledge of the [hard drive’s]

exculpatory value.” Appellant’s Opening Br. at 32. But the government

expressly represented that it had no such knowledge. Further inquiry could

have appeared unnecessary.




                                   38
      Mr. Simpson also points out that a police officer testified that he had

viewed excerpts of the footage without specifying what the excerpts

contained. 

Simpson could have asked the officer at trial what

the excerpts contained. And, even if the viewed excerpts did not show Mr.

Simpson with a gun on June 12, the officer might reasonably have believed

that Mr. Simpson’s appearance with a gun had appeared in a different part

of the footage. Thus, the police officer’s testimony does not plainly

suggest bad faith.

                                    * * *

      In applying the plain-error standard, we conclude that the district

court did not commit reversible error by disallowing further inquiry into

the unavailability of the hard drive.

V.    The Jury Instructions

      Mr. Simpson also challenges a jury instruction that defined

“constructive possession”:

           A person who, although not in actual possession,
      knowingly has the power at a given time to exercise dominion
      or control over an object, either directly or through another
      person or persons, is then in constructive possession of it.

Supp. R. vol. 3, at 204. Under this instruction, the jury could find

constructive possession over any items that Mr. Simpson knowingly had

the power to control, such as the guns, ammunition, and drugs.




                                   39
      During this appeal, the law changed when our court held that

constructive possession contains an additional element: intent. It was no

longer enough to show that Mr. Simpson knew about the items and could

control them. Instead, the government needed to also show that Mr.

Simpson had intended to exercise control over the items. United States v.

Little, 

, 1182 (10th Cir. 2016) (citing Henderson v. United

States, 

, 1784 (2015)).

      Because Mr. Simpson did not raise this objection in district court,

our review is for plain error. See United States v. Lin, 

, 1190

(10th Cir. 2005); see also pp. 33-34, above.

      The government concedes that the first two elements of the plain-

error test are satisfied: the existence of an error and the plain or obvious

nature of that error. See pp. 33-34, above. We agree with the parties that

the first two elements are satisfied.

      The parties’ disagreement involves the third and fourth elements:

whether the error affected Mr. Simpson’s substantial rights and seriously

affected the fairness, integrity, or public reputation of judicial

proceedings. Molina-Martinez v. United States, 

, 1343

(2016). We reject Mr. Simpson’s arguments on Counts 1, 2, and 5, but

agree with Mr. Simpson on the remaining counts.

      A.    Count 1 (Possession of Cocaine with Intent to Distribute)




                                   40
      Mr. Simpson cannot satisfy the third element of the plain-error test

with regard to Count 1. On this element, Mr. Simpson needs to “‘show a

reasonable probability that, but for the error,’ the outcome of the

proceeding would have been different.” 

States v.

Dominguez Benitez, 

, 76, 82 (2004)). He cannot meet that

burden here.

      For Count 1, the jury found not only that Mr. Simpson had possessed

cocaine, but also that he had intended to distribute the cocaine. Mr.

Simpson could intend to distribute the cocaine only if he intended to

possess it, for he could not distribute something that he didn’t have. See

United States v. Paredes-Rodriguez, 

, 55 (1st Cir. 1998) (“[I]t

simply makes no sense to assert that the same jury that found that [the

defendant] intended to distribute the cocaine could have simultaneously

found that he did not intend to possess it.”). Thus, we know that the

instructional error did not affect the outcome on the charge of possession

with intent to distribute.

      Because the jury found Mr. Simpson guilty on this count, we know

that the jury would have found that Mr. Simpson had intended to possess

the cocaine. 15 In these circumstances, the outcome on Count 1 would likely


15
      Mr. Simpson argues that “the jury’s verdict does not
necessarily mean that it found that Mr. Simpson intended to possess
the cocaine; it merely means that the jury [(1)] found that Mr.
Simpson had knowledge of, and the power to exercise control over,

                                  41
have stayed the same with a legally correct instruction on constructive

possession. Thus, we reject the challenge to Count 1 under the third

element of the plain-error test.

      B.    Counts 2 and 5 (Unlawful Possession of an Unregistered
            Shotgun and Ammunition)

      We also conclude that on Counts 2 and 5, Mr. Simpson cannot show a

reasonable likelihood of a different outcome without the erroneous jury

instructions.

      Police found a loaded shotgun inside Mr. Simpson’s garage. At trial,

an officer testified that Mr. Simpson had admittedly held the shotgun and

tried to sell it about a month prior to his arrest. R. vol. 3, at 645-46. Mr.

Simpson did not impeach the officer or present any evidence contradicting

the officer’s testimony. At closing argument, the government urged the

jury to consider that testimony when deciding the verdict. 

The

jury found that Mr. Simpson had possessed the loaded shotgun.

      In reaching this finding, the jury likely believed the officer’s

uncontradicted testimony that Mr. Simpson had intentionally handled the

shotgun and tried to sell it. 16 As a result, we believe that a properly


the cocaine, and that [(2)] the cocaine was intended for distribution.”
Appellant’s Supp. Br. at 14-15 (emphases in original). This argument
is foreclosed by Jury Instruction No. 17, which permitted a finding of
guilt only if “the defendant [had] possessed the substance with the
intent to distribute it.” Supp. R. vol. 3, at 193.
16
      Mr. Simpson claims that the record does not state when the
handling occurred. Appellant’s Supp. Br. at 6. But the officer

                                    42
instructed jury would probably have arrived at the same result. Thus, Mr.

Simpson failed to satisfy the third element of the plain-error test on his

challenge to Counts 2 and 5.

      C.    Counts 3-4 and 7-14 (Unlawful Possession of Handguns and
            Ammunition)

      The remaining counts involve the discovery of handguns and

ammunition for the handguns:

           Count 3: A Bersa .380 caliber handgun and ammunition was
            found in an unlocked safe in Mr. Simpson’s basement.

           Count 4: A Smith & Wesson .40 caliber handgun and
            ammunition was found under the driver’s seat of a car
            registered to Mr. Simpson’s wife.

           Counts 7 to 10: Ammunition was found in an unlocked safe in
            Mr. Simpson’s basement.

           Counts 11 to 13: Ammunition was found in Mr. Simpson’s
            kitchen cabinets and on top of his refrigerator.

           Count 14: Ammunition was found on a desk in Mr. Simpson’s
            basement.

Mr. Simpson jointly occupied each of these locations with his wife, and

visitors had access to these places. Thus, Mr. Simpson urges a reasonable

probability that a properly instructed jury would have found him not guilty

on Counts 3-4 and 7-14. We agree with Mr. Simpson.

      1.    The Third Element


testified that the incident had taken place in mid-May 2014. See R.
vol. 3, at 645. This period would have fallen within the alleged time-
period for Counts 2 and 5 (May 1, 2014, to June 19, 2014).

                                  43
      Under the third element of the plain-error standard, “[a] plainly

erroneous jury instruction affects a defendant’s ‘substantial rights’ if the

instruction concerns a principal element . . . of the crime, thus suggesting

that the error affected the outcome of the case.” United States v. Duran,

, 1330 (10th Cir. 1998).

      This test was satisfied, for the erroneous jury instruction had omitted

an important element of the crime, intent, and the defense’s theory had

focused on that element. To counter this defense, the government

emphasized in closing argument that the jury should find guilt if Mr.

Simpson had known of the handguns and ammunition and had enjoyed the

ability to control them. See United States v. Bader, 

, 869

(10th Cir. 2012) (noting that the prosecution’s theory at closing argument

bears on whether an erroneous jury instruction was prejudicial). The

government’s argument would have been untenable if the jury had been

told of the intent element.

      The government points to evidence that could support a finding of

intent. For example, a police informant testified that he had seen Mr.

Simpson discussing, holding, and brandishing firearms. In addition, a

police officer testified that Mr. Simpson had admittedly held each of the

handguns.

      Even with the government’s evidence, there is a reasonable

probability that the outcome would have been different with a correct jury


                                   44
instruction. The jury may or may not have decided to credit the testimony

of the informant, considering that Mr. Simpson had elicited evidence

bearing on impeachment. 17 See On Lee v. United States, 

, 757

(1952) (“The use of informers . . . may raise serious questions of

credibility.”).

      The government also points to the evidence that Mr. Simpson had

admitted holding the handguns. But the jury could have concluded that Mr.

Simpson had handled the handguns at a time different than that alleged in

the indictment.

      The district court instructed the jury that possession of the handguns

and ammunition must have taken place on or about June 19, 2014. The jury

was also told that the government had to prove beyond a reasonable doubt

that Mr. Simpson had possessed the guns and ammunition reasonably near

the dates reflected in the jury instructions.

      There was little evidence about when Mr. Simpson had handled the

handguns; the police officer said only that Mr. Simpson had admittedly



17
     According to the government, the finding of guilt on the drug count
suggests that the jury credited the informant’s testimony. Maybe. But the
jury could also have found guilt on the drug count based on the presence in
the house of almost 20 grams of cocaine and items used to sell cocaine
(baggies, scales, razor blades, and a glass beaker). We have no way of
knowing whether the jury believed the informant’s testimony. See United
States v. Alexander, 

, 1214-15 (10th Cir. 2016) (“[D]ue to
the instructional error we have identified, we cannot determine the basis
for the jury’s verdict.”).

                                   45
shown his wife how to fire the handguns in the two months prior to the

arrest.

      Based on that testimony, the jury could have concluded that Mr.

Simpson had not handled the handguns on or about June 19, 2014.

Therefore, the jury could reasonably have concluded that Mr. Simpson had

not intended to possess the handguns and ammunition on or about the

applicable dates. In these circumstances, the instructional error affected

Mr. Simpson’s substantial rights on Counts 3-4 and 7-14.

      2.    The Fourth Element

      Finally, we conclude that the instructional error seriously affected

the fairness, integrity, or public reputation of the judicial proceedings.

      To satisfy this test, a defendant would need to show that the error is

“particularly egregious” and that failure to notice the error would result in

a “miscarriage of justice.” United States v. Johnson, 

, 1264

(10th Cir. 2005). But because the present case involves a constitutional

error, our analysis is “less rigid[].” Id.; see Neder v. United States, 

, 12 (1999) (“[A]n improper instruction on an element of the offense

violates the Sixth Amendment’s jury trial guarantee.”).

      A failure to properly instruct the jury on an element would not

always satisfy the fourth element of the plain-error test. United States v.

Wolfname, 

, 1223 (10th Cir. 2016). But because the

government’s evidence on intent was not overwhelming, the instructional


                                   46
error seriously affected the fairness, integrity, or public reputation of the

judicial proceedings. See 

the failure to instruct on an

essential element of the crime satisfied the fourth element of the plain-

error test because the government’s evidence on the omitted element of the

crime was neither overwhelming nor uncontroverted).

                                      * * *

      We conclude that (1) the district court plainly erred in instructing the

jury on Counts 3-4 and 7-14, (2) the error affected Mr. Simpson’s

substantial rights, and (3) the error seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.

VI.   Reckless Endangerment

      Mr. Simpson’s arrest involved a struggle, resulting in a sentencing

enhancement. Mr. Simpson challenges the enhancement, and we reject the

challenge.

      As the police executed the search warrant, Mr. Simpson was sitting

in the driver’s seat of his car with the seat in a reclined position. He says

that he was asleep and intoxicated.

      While he was allegedly sleeping, the police parked a SWAT vehicle

behind Mr. Simpson’s car to block it in. The police then approached Mr.

Simpson’s vehicle in SWAT gear with guns and flashlights drawn,




                                   47
demanding that Mr. Simpson show his hands. He didn’t. Instead, he started

his car and backed it into the SWAT vehicle. 18

      At sentencing, the district court determined that this conduct

justified application of U.S. Sentencing Guideline §3C1.2, which provides

a two-level increase “[i]f the defendant recklessly created a substantial risk

of death or serious bodily injury to another person in the course of fleeing

from a law enforcement officer.” U.S. Sentencing Guidelines Manual §

3C1.2 (U.S. Sentencing Comm’n 2014). Mr. Simpson contends that he

reacted instinctively, for he had been drinking and was awoken by people

who he thought were assailants. Appellant’s Opening Br. at 34-36. We

reject this contention with respect to the sentence on Counts 1, 2, and 5.

      We review the district court’s finding for clear error. United States v.

Conley, 

, 1389 (10th Cir. 1997). In applying this standard,

we view the evidence and draw all reasonable inferences in the light most

favorable to the court’s finding. 

court found that Mr. Simpson had known that he was

surrounded by police officers and had acted purposefully. The court



18
    One of the police officers testified that Mr. Simpson had rammed the
SWAT vehicle at least three times; another officer testified that Mr.
Simpson had rammed into the vehicle only once. When sentencing Mr.
Simpson, the district court indicated that it believed that Mr. Simpson had
rammed the vehicle multiple times. R. vol. 3, at 900 (noting that Mr.
Simpson “was then ramming the vehicle that he was in into the back of the
[SWAT vehicle]”).

                                   48
acknowledged that Mr. Simpson had not heard the officers identify

themselves as police. But the court noted that

           the police had ordered Mr. Simpson to show his hands and

           Mr. Simpson could have seen the police through his windows.

R. vol. 3, at 900. Based on this conduct, the district court found that Mr.

Simpson had acted recklessly when starting his vehicle and ramming it into

the SWAT vehicle. 

      The district court’s determination was not clearly erroneous. Were

we the trier of fact, we might have come to a different conclusion. The

night was dark, and the police were shining flashlights at Mr. Simpson. Mr.

Simpson might have been afraid and unaware that the individuals were

police officers. But, viewing the evidence and drawing all reasonable

inferences favorably to the district court’s finding, we conclude that the

district court’s finding was not clearly erroneous. Thus, we affirm the

court’s application of the enhancement for reckless endangerment.

VII. Disposition

      We affirm Mr. Simpson’s conviction and sentence on Counts 1, 2,

and 5. For the remaining counts, we reverse Mr. Simpson’s conviction and

remand for a new trial.




                                   49
United States v. Simpson, No. 15-1295

EBEL, J., dissenting.

       Contrary to the majority opinion, I would hold that the district court erred by

denying Simpson his constitutional right to represent himself. Therefore, I would reverse

the convictions. Since I do not prevail on that issue, I am also writing separately to

supplement the majority’s reasoning on the pole-camera video evidence. On that issue, I

agree with the majority that there was no error regarding the exclusion of that evidence

insofar as the search warrant was concerned—and, regarding the use of that evidence for

impeachment at trial, Simpson has not satisfied the third prong of plain-error review. I

write separately only because of the potential for a new trial here during which Simpson

will have a new opportunity to request inspection of the pole camera video evidence for

trial purposes. In that eventuality, if Simpson were to preserve the issue properly, I

believe he has offered a theory of materiality that satisfies his prima facie burden under

Federal Rule of Criminal Procedure 16. Thus, if the government chooses to retry

Simpson on the remanded counts, Simpson should be allowed to examine the pole-

camera evidence.

                             I.   Right to self-representation

       The majority opinion finds two reasons why Simpson’s self-representation motion

was defective—that it was not “clear and unequivocal” and that it was a delay tactic.

          A. Clear and unequivocal

       Our case law requires a “clear and unequivocal” request to dispense with counsel.

While the majority opinion concludes that Simpson’s request was not clear enough, the
district court did not address that question and the government never argued it below or

on appeal.1 So at the outset I am skeptical of relying on an argument that was neither

argued below nor preserved on appeal.2

       Simpson in fact did clearly and unequivocally invoke his constitutional right to

represent himself. On the morning of trial, Simpson submitted a handwritten motion for

self-representation, which unambiguously asserted his right to proceed pro se. (Motion to

Proceed in Propria Persona, Sui Juris, R. Vol. I at 183-84) (“Comes now, Michael E.

Simpson, the Accused, proceeding in Propria Persona, Sui Juris[,] and respectfully moves

this court to grant the above entitled motion[.]”). His motion cites and explains the

touchstone Supreme Court case recognizing that constitutional right, Faretta v.

California, 

, 819-820 (1975), and enumerates reasons why he was



1
  See Oral Argument at 1:12-1:17 (statement by Simpson’s counsel: “It’s undisputed that
the motion clearly and unequivocally requested self-representation . . . .”).
2
  At oral argument, Simpson’s counsel responded to the panel’s questions about whether
the request was “clear and unequivocal,” see Oral Argument at 1:36-4:42, but aside from
that colloquy, there was no adversarial attention given to the topic. The majority says
that the government had no reason to argue this below because Simpson made the request
the day of trial and “the government was never asked for its position on self-
representation.” (Maj. Op. at 17). But as the majority acknowledges, Simpson filed a
post-verdict motion for new trial raising this self-representation issue and the government
could have responded at that time. Further, I disagree with the majority that the
government eventually “spoke up” on appeal by arguing the motions for self-
representation and continuance were “inherently linked.” (Maj. Op. at 17-18). In that
argument, the government was asserting that the two connected motions “support a
finding that Simpson’s request was untimely and manipulative,” (Aple. Br. at 12)—that is
quite different from arguing the “clear and unequivocal” prong of the self-representation
analysis. Moreover, the government cites to none of the cases relied upon by today’s
majority to find ambiguity in this case, and so Simpson would have no opportunity to
assist this Court in properly interpreting those authorities. It is for that reason, in part,
that we should not rely on arguments that were not made by the parties.
                                             2
dissatisfied with his lawyer, many of which had only arisen within the preceding few

days. This unambiguous written request should be the end of the matter.

       But the majority finds ambiguity in that document because it also requests the

appointment of advisory counsel for several purposes, including assistance with

discovery procedures.3 (Maj. Op. at 10-11). Contrary to the majority opinion, I would

not read this reference to discovery as “implicitly” requesting a continuance, (Maj. Op. at

11), thereby muddying the clarity of the written motion for self-representation. Instead,

the discovery reference only suggests that Simpson hoped his separate oral motion for a

continuance would be granted, and that an advisory lawyer could assist with discovery

matters before the newly scheduled trial date. But even assuming there was an implicit

request for a continuance in the written motion for self-representation, it would not dilute

the clarity of his distinct request for self-representation. It is difficult to imagine how a

defendant could be any more “clear and unequivocal” than what Simpson wrote in this

motion.

       The majority then turns to the oral colloquy between the trial court and Simpson to

find ambiguity where, in my view, there is none—at least none attributable to Simpson.

The record shows that Simpson (1) asked to represent himself and, because he was not

3
  The motion says: “The appointment of advisory counsel can relieve the Judge of the
need to explain and enforce basic rules of courtroom protocol or to assist the accused in
overcoming routine procedural or evidentiary obstacles that stand in the way of the
accused achievements of his own clearly indicated goals. U.S. v. Thomas, 

[sic]. Also, such assigned counsel would be available at least to meet
with the prosecuting attorney, to see that discovery procedures are followed. The
necessary motions are made, to confer with accused, to be present with the accused in the
courtroom during trial, and otherwise to do those things associated with the case, which
the accused is unable to do for himself.” (R. Vol. I at 184) (emphasis added).
                                               3
prepared to do so that day, he (2) requested a continuance. These are two separate, but

related, motions. I agree with the majority that the district court “conflated” them. (Maj.

Op. at 12). But the majority concludes this conflation was reasonable, and thus not

erroneous, because of a particular back-and-forth between Simpson and the district court.

That conversation is worth considering again:

       THE COURT:                  Okay. So, Mr. Simpson, let me just ask you this, and
                                   that is is [sic] what you are — you are asking for a
                                   continuance, but you are also asking to represent
                                   yourself in this proceeding, but with advisory counsel
                                   appointed?

       THE DEFENDANT:              Yes.

       THE COURT:                  Would you be prepared to go to trial today
                                   representing yourself?

       THE DEFENDANT:              No, sir, not today.

R. Vol. III at 167. When Simpson said he would not be prepared for trial that day, the

district court was assuming that Simpson only wanted to represent himself if he received

a continuance, i.e., that the self-representation motion was conditional on moving back

the trial date.

       But that interpretation was unreasonable. The context of the conversation was

whether to move back the trial date. As such, in responding that he was unprepared for

trial that day, Simpson was simply arguing that the court should grant the continuance

based on his lack of preparedness—he did not in any way state, nor imply, that he would

revoke his self-representation motion if a continuance was denied. To the extent that the

district court believed otherwise, that was not Simpson’s fault. Even still, however, the


                                             4
majority holds that Simpson should have clarified that “he wanted to represent himself

even without a continuance.” (Maj. Op. at 13) (emphasis added). But our case law has

never required that a defendant bolster an otherwise unmistakable motion for self-

representation with a supplemental assertion that he remains earnest in that request

notwithstanding the outcome on other pending motions.

       The majority then turns to case precedent that found ambiguity in the request for

self-representation under different circumstances. But those cases involved situations

where there was far more doubt as to whether the defendants actually were invoking their

self-representation right. In United States v. Miles, (cited by Maj. Op. at 12, 13), we

found waiver of the self-representation right when the district court asked the defendant,

“Are you now asking counsel to take over for you?,” to which he responded “I think, at

this point, yes.” 

, 837 (10th Cir. 2009). In other words, the defendant

affirmatively declared he wanted his lawyer to take over for him. That did not happen

here. In fact, just the opposite, as Simpson repeatedly expressed dissatisfaction with his

lawyer and affirmatively asked to represent himself.

       In Stallings v. Franco, (cited by Maj. Op. at 13), an unpublished case, the

defendant submitted multiple motions, one of which actually asked for appointment of a

lawyer outside the Public Defender’s office, and another stated: “Although I did ask to go

pro-se, I am not prepared at this time for trial, because I do not know the rules and

procedures in a New Mexico jury trial.” 576 F. App’x 820, 823 (10th Cir. Aug. 20,

2014) (unpublished) (emphasis added). With no accompanying request for a

continuance, and by prefacing his statement with the word “although,” it was reasonable

                                             5
for the district court in Stallings to conclude that he was qualifying or retreating from his

earlier motion for self-representation.

       In United States v. Smith, (cited by Maj. Op. at 14), the Tenth Circuit did not

expressly ground its decision on the ambiguity of the defendant’s request, but rather on

its untimeliness. 

, 1279 (10th Cir. 2005) (after reviewing the law,

including the “clear and unequivocal” standard, “we conclude that the District Court did

not err when it found that [defendant] did not intend to abide by courtroom decorum and

that his request was not timely made.”), abrogated on other grounds by Boyle v. United

States, 

(2009). That being said, the invocation of the self-representation

right in Smith was woefully ambiguous. The district court even asked if the defendant

sought to dispense with counsel, to which the defendant responded that “he did not have

the education to represent himself and simply wanted new counsel.” 

But

when the defendant indicated “he might have to be disruptive in trial in order to properly

defend himself,” 

the district court cautiously treated that statement as an

assertion of the self-representation right. The defendant’s comments in Smith, unlike

Simpson’s statements and written motion in our case, demonstrated a highly equivocal

invocation of the right.

       In United States v. Callwood, (cited by Maj. Op. at 14), the defendant informed

the district court that he “would prefer for counsel not to represent defendant or at least

the right to question the witness himself.” 

, 1114 (10th Cir. 1995)

(emphasis added). We held that, at most, he was requesting a “hybrid” representation

where he could “question the witnesses while continuing to retain counsel.” 

majority today correctly characterizes Callwood as a case where the defendant “never

made any other statement regarding his desire for self-representation.” 

is a

far cry from the one before us today. Simpson made clear his desire to go forward pro se

in a separate written motion and in his colloquy with the district court.

       In United States v. Bennett, 

, 51 (10th Cir. 1976), (cited by Maj. Op. at

15), the defendant repeatedly “vacillat[ed]” between requests for hybrid-representation

(splitting trial tasks between the defendant himself and trial counsel) and full self-

representation. At one point, the defendant stated: “It is my statement now that I know I

am not a qualified attorney to conduct a full trial, but there are certain aspects of the trial

that I feel that I am competent to proceed with.” 

(emphasis added). After the

defendant changed his mind multiple times, the district court concluded: “we have fenced

around long enough.” 

in the previously cited cases, Bennett involved a

degree of ambiguity that far exceeded the equivocation (if any) in Simpson’s colloquy

with the district court in this case.

       Although I believe the majority’s cited cases involved far more ambiguity than did

Simpson’s colloquy here, I agree with the majority about the purpose of the “clear and

unequivocal” standard from these cases—it is to avoid putting a district court in a

dilemma where “an equivocal demand creates a potential ground for reversal however the

trial court rules.” (Maj. Op. at 10). If the court has to guess at what the defendant wants,

then it may incorrectly determine that he either wanted to keep his lawyer (stripping him

of a right to self-representation), or that he wanted to proceed pro se, thereby



                                               7
surrendering his constitutional right to counsel. So defendants can make ambiguous

demands and then appeal their convictions no matter the court’s ruling.

       But that dilemma did not exist here. With this record, had the district court

granted the self-representation motion and Simpson lost at trial, Simpson could not have

successfully argued post hoc that he was unconstitutionally denied the assistance of

counsel—after all he waived that right by submitting a clear and unequivocal request to

represent himself. He might have had at least a colorable claim that the court abused its

discretion in denying his separate motion for a continuance, but that would have been a

separate matter. As described above, the fact remains that any ambiguity was created by

the district court itself—either by misunderstanding Simpson’s request, or by failing to

treat separately his scheduling request (the continuance) from his motion to invoke a

constitutional right (self-representation).



           B. Purpose of delay

       A motion for self-representation may be rejected if made for the purpose of

delaying the proceedings. See United States v. Tucker, 

, 1180 (10th Cir.

2006); United States v. Mackovich, 

, 1237-38 (10th Cir. 2000). The

government argues, and the majority today concludes, that Simpson’s request was a tactic

for delay. I disagree.

       At the outset, the district court never actually found that Simpson’s motion was

made for the purpose of delaying the trial. The majority acknowledges as much, but



                                              8
references several statements that it concludes amounted to the district court’s “implicit”

finding of intended delay. (Maj. Op. at 25). I am wary to sign on to that approach.

       Rather than hang the decision on implicit findings of the district court, I would

instead rely on what the court said explicitly. In considering Simpson’s request for self-

representation, the district court found that his earlier continuance request was “totally

appropriate” and acknowledged that Simpson did not have “much control over that

situation.”4 (R. Vol. III at 169). Yet the majority dismisses this explicit finding as “not

dispositive.” (Maj. Op. at 29). In my view, this finding has meaning. It makes this case

different from others like Mackovich, where the district court found the self-

representation motion was “merely an effort to again delay the trial, and [was] an abuse

of the judicial 

, and where the judge pointed to a long period of

disruptive tactics by the defendant, 

Mackovich, the district court here did

not find that Simpson had demonstrated such a pattern of delay tactics.

       Turning away from the district court’s findings, and looking to the record itself, it

appears that Simpson chose to represent himself not to manipulate the process or delay

the trial, but because he was genuinely dissatisfied with his lawyer. Consider first the

explanation that Simpson actually offered, both in his written motion and in the colloquy.

He explained that his motion was based on his lawyer’s failure to keep Simpson informed

about case developments and the failure to file certain motions that Simpson believed

were important to his defense. While a defendant’s purported intentions are not

4
 This was not Simpson’s first request for a continuance—his trial was originally
scheduled for December 15, 2014, but after Simpson’s family swapped out his lawyers
(without his knowledge) at the last minute, the district court pushed the trial date back.
                                              9
dispositive of whether a motion is intended for delay, they are at least a starting point for

analyzing the purpose of the motion.

       But the government dismisses Simpson’s explanation based on the timing of his

request. The government argues that if Simpson decided to represent himself two weeks

before trial, then why did he wait until the morning of trial to file the motion? The

majority concludes that Simpson could have requested self-representation earlier, and his

failure to do so suggests a purpose of delay. But I am not so sure.

       Consider the sequence of events leading up to the district court’s denial of the

motion on the morning of trial, April 6, 2015. A week and a half before the trial date,

Simpson asked his lawyer to file certain jurisdictional motions which Simpson had

written. But the lawyer found them frivolous and refused to file them.5 Upon learning

they were not filed, Simpson himself submitted them to the court on April 1. However,

on April 2, the district court denied those motions because they were not filed by

Simpson’s lawyer.6 On April 3, a Friday, the parties held a pretrial conference at which

Simpson learned that his motions were stricken. Over the weekend, on the eve of trial,

realizing that his lawyer would not file his motions and that he could not file them

5
  There was certainly an adequate basis to believe they were frivolous. In one motion,
Simpson argued he was a “Noble of the Al Moroccan Empire” and thus not bound by the
laws of the United States. (Dist. Ct. Doc. 127). In another, Simpson gave notice of a
name-change based upon “Divine Law; Natures Law; Universal Law; Moorish
Birthright; International Law; and Constitutional Law[.]” (Dist. Ct. Doc. 128). And
another sought a copy of a “Certified Delegation of Authority Order” that showed the
district court had jurisdiction to hear the case. (Dist. Ct. Doc. 129). Despite the frivolity
of these motions, however, there is no indication that they were not genuine.
6
  When a defendant is represented by counsel, a court will not ordinarily accept pro se
filings from that defendant. See United States v. Sandoval-De Lao, 283 F. App’x 621,
625 (10th Cir. 2008) (unpublished) (collecting cases).
                                             10
himself so long as he had a lawyer, Simpson may have tossed up his hands and finally

decided to act on his inclination to proceed pro se. That next Monday morning, April 6,

2015, he filed for self-representation.

       With this sequence of events in mind, the timing of Simpson’s self-representation

request does not suggest a purpose of delaying trial—but rather a late realization that his

lawyer was not representing his perceived best interests and that the court would not

consider his jurisdictional motions unless he dispensed with counsel.7 Moreover, to

confirm that his attempt to dispense with counsel was genuine, rather than a delay tactic,

Simpson again sought to represent himself after the trial for sentencing proceedings.

(Dist. Ct. Doc. 156, 158). In my view, that adds confirmatory support to the conclusion

that Simpson had genuinely wanted to represent himself all along.

       For the above reasons, I am not persuaded by the majority’s and the government’s

arguments. More fundamentally, I am concerned that today’s decision will water down a

constitutional right which ought to remain potent—the right to dispense with counsel.

Because I find, on this record, no ambiguity in Simpson’s request, and no evidence that

Simpson had a purpose of delay, I would reverse the convictions based on the district

court’s denial of Simpson’s constitutional right to self-representation. Thus, on this

issue, I respectfully dissent.




7
 The lateness of this decision itself does not make it untimely because, as the majority
acknowledges, a motion for self-representation is timely if made before the jury is
impaneled. See 

. Simpson’s motion was made before the jury
was impaneled.
                                            11
                               II.   Pole-camera evidence

       The majority also finds no reversible error in denying Simpson’s motion to inspect

the pole camera and hard drive. On this issue, I concur in the majority’s outcome and

rationale. I write separately on this issue only to add that, under Federal Rule of Criminal

Procedure 16, the government cannot block access to potentially material evidence in its

control when the defendant alleges a specific theory of how the evidence could be

material to his defense, and where the specific evidence cannot be knowable by the

defendant until it is produced by the government for the defendant’s examination.

       In Simpson’s original motion to inspect, he offered one theory of how the

surveillance footage would be material to his defense: access to the video would enable

him to challenge the search warrant based on reckless omissions by the affiant. The

district court denied that motion, and the majority correctly affirms that denial because

Simpson failed to make a prima facie showing that the video would be material to his

effort to challenge the search warrant.

       On appeal, for the first time, Simpson offers a second theory for why the video

would be material: it would enable him to impeach the government’s star eyewitness at

trial, Kenneth Tillman. I agree with the majority that Simpson has failed to establish a

“reasonable probability” that this impeachment theory, if adopted by the district court,

would have changed the outcome in the trial. (Maj. Op. at 34). Thus, at this stage of the

proceedings, where we are reviewing his claim for plain error, Simpson’s claim fails.

But because we are remanding on some counts, there is a possibility of a new trial. If that

occurs, the pole camera evidence may again become relevant and this time Simpson

                                            12
might timely ask to inspect that the pole camera and hard drive under the theory that it

may help him impeach the government’s star eyewitness at trial. Thus, because of that

eventuality, I would go further than the majority opinion. I would hold that Simpson’s

impeachment theory is valid and satisfies his prima facie burden to show materiality

under Federal Rule of Procedure 16, and thus the government must permit Simpson to

examine the pole-camera evidence if the government pursues a new trial on any

remanded counts.

       Consider what the video evidence would allegedly show. The pole camera was

installed across the street from Simpson’s home on June 5, 2015, and would have

captured footage of events occurring outside the residence after that date. Tillman, the

government’s star eyewitness, claimed at trial that Simpson exited his home on June 12,

2015, brandishing a firearm, (R. Vol. III at 374), and then Tillman entered the house and

Simpson began bragging about his other guns, (Id. at 376-77). But Simpson alleges the

video footage would prove Tillman was never at the house on the dates claimed, and so

could not have observed those events. It would also show, according to Simpson, a lack

of traffic associated with drug dealing. All of this would be helpful to Simpson’s defense

as impeachment evidence against Tillman—which would unquestionably be material in

light of the fact that Tillman was the government’s only eyewitness.8


8
 It is generally said that, under Rule 16, “conclusory allegations of materiality[do not]
suffice[.]” See, e.g., United States v. Mandel, 

, 1219 (9th Cir. 1990). But
Simpson does not just allege that the video would be material as a general matter—he
claims a specific use (impeachment) with respect to a specific witness (Tillman), and
even points out specific aspects of the video that would be exculpatory (Tillman’s
absence on particular date). There is nothing conclusory about Simpson’s claim.
                                            13
       With this, Simpson has met his prima facie burden. At least under Rule 16, we

should not fault Simpson for failing to prove in advance what the video would show.

That would be circular—Simpson needs the video to prove he is telling the truth, he

cannot be expected to first prove his story in order to get access to a video he says is the

very item needed to prove that story.9 Chief Justice John Marshall acknowledged this

impossibility over two centuries ago: “Now, if a paper be in possession of the opposite

party, what statement of its contents or applicability can be expected from the person who

claims its production, he not precisely knowing its contents.” United States v. Burr, 25 F.

Cas. 187, 191 (C.C.D. Va. 1807) (No. 14,694). And in a related context, the Supreme

Court recognized that “it is impossible to say whether any information in the [sought-

after] records may be relevant to [Defendant]’s claim of innocence, because neither


9
  The majority correctly cites to United States v. Acosta-Gallardo for the proposition that
Brady’s materiality requirement is not satisfied when “no one knows whether the
[disclosed item] would have been favorable to [the defendant].” 

, 1117
(10th Cir. 2011). While Acosta-Gallardo makes it difficult for Simpson to satisfy plain
error on his Brady argument, I do not view that case as dispositive of the alleged Rule 16
violation. Rule 16 is broader than the Brady rule. See, e.g., United States v. Muniz-
Jaquez, 

, 1183 (9th Cir. 2013) (“Rule 16 is thus broader than Brady.
Information that is not exculpatory or impeaching may still be relevant to developing a
possible defense.”); United States v. Caro, 

, 620 (4th Cir. 2010) (same);
United States v. Baker, 

, 424 (7th Cir. 2006) (same); Fed. R. Crim. P. 16
advisory committee’s note to 1974 amendment (stating that in revising Rule 16 “to give
greater discovery to both the prosecution and the defense,” the committee had “decided
not to codify the Brady rule”); 2 Charles Alan Wright, Federal Practice and Procedure
§ 256 (4th ed. 2009) (explaining that inculpatory material or ambiguous information falls
outside the scope of Brady but is discoverable under Rule 16). The Brady rule is a
constitutional floor—binding in federal and state courts alike—and the Federal Rules of
Criminal Procedure may, as they have done in Rule 16, provide a federal standard above
that floor. Thus, while the majority takes no position on this issue, I would note that
Acosta-Gallardo’s holding on Brady’s materiality requirement does not extend to the
more defense-favorable standard under Rule 16.
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prosecution nor defense counsel has seen the information.” Pennsylvania v. Ritchie, 

, 57 (1987) (remanding to determine whether certain nondisclosed records, the

information in which was unknown to all parties, would have changed the outcome of the

trial if properly disclosed).10

       A contrary conclusion would be a dangerous precedent in federal courts. To

permit the government to sit on allegedly unrecoverable evidence and prevent the

defendant from determining whether the evidence is recoverable would allow the

government to withhold potentially material evidence when the government alone can

assess the usefulness of that evidence. See generally United States v. Budziak, 

, 1113 (9th Cir. 2012) (“While we have no reason to doubt the government’s good

faith in such matters [referring to Rule 16 requests], criminal defendants should not have

to rely solely on the government’s word that further discovery is unnecessary.”). It is

particularly disconcerting when the defendant, as here, alleges a specific purpose for the

evidence that would be material to his legal defense. Thus, while I agree with the

majority’s treatment of this issue in full, I would hold further that, upon a new trial, the

government should allow inspection of the pole camera and hard drive.



                                       *      *       *




10
   As the majority correctly points out, this case is not squarely on point—it addresses
materiality in the context of a Brady violation, i.e., unconstitutional nondisclosure. But it
is instructive that the Supreme Court has also found it unfair for a defendant, at least in
the Brady context, to be forced to prove the materiality of a record he has not seen.
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       In sum, on the issue of self-representation, I conclude that the district court erred

by denying Simpson’s request. It was neither ambiguously invoked, nor motivated by a

desire to delay. Thus, all of Simpson’s convictions should be reversed. However, since

the majority disagrees with me on that dispositive issue, I turn to the evidentiary issue of

discovery of the pole-camera and hard drive. On that matter, I concur with the majority

that reversal is not warranted based on Simpson’s failure to satisfy plain-error review—

but I have written separately to add that the government’s refusal to allow inspection here

was improper and, upon any new trial on the counts that are being remanded, the

government should permit Simpson to examine the pole-camera and hard drive.




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