Filed: Jul. 31, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4844 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY W. HORNE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:07-cr-00212-JBF-JEB-1) Argued: May 15, 2009 Decided: July 31, 2009 Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, and NIEMEYER
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4844 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY W. HORNE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:07-cr-00212-JBF-JEB-1) Argued: May 15, 2009 Decided: July 31, 2009 Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, and NIEMEYER ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4844
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY W. HORNE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cr-00212-JBF-JEB-1)
Argued: May 15, 2009 Decided: July 31, 2009
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, and NIEMEYER
and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Edward Anthony Fiorella, Jr., FRAIM AND FIORELLA,
Norfolk, Virginia, for Appellant. D. Monique Broadnax, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
ON BRIEF: Dana J. Boente, Acting United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his arrest in a prostitution sting operation at a
Norfolk, Virginia motel, Anthony Horne was searched, and Norfolk
police officers found on him heroin and cocaine, and in his
room, cocaine base. Horne was charged in three counts with
possessing illegal drugs with the intent to distribute them. On
the government’s motion, the court later dismissed Count III,
charging Horne with possession of cocaine base with intent to
distribute it, and the jury convicted him on Counts I (heroin)
and II (cocaine). The district court imposed a variance
sentence of 144 months’ imprisonment -- the advisory Guideline
range was 262-327 months’ imprisonment.
On appeal, Horne challenges numerous aspects of his arrest
and trial. Having carefully considered each, we affirm.
I
Horne contends first that the district court erred in
denying his motion to suppress the drug evidence retrieved from
his pocket during the search incident to his arrest because
police officers did not have probable cause to arrest him for
solicitation of prostitution.
The record shows that at approximately 8:00 p.m. on
September 20, 2007, Horne approached undercover police officer
Kim Cole, who was dressed like and posturing as a prostitute.
2
When Horne inquired as to what Officer Cole was doing, she told
Horne that she was “working” because she needed money to pay for
her motel room. Horne asked for Cole’s motel room number, which
she provided, and Horne then instructed Cole to return to her
room and that he would be “up in a few minutes.” Officer Cole
asked Horne if he had any money, and Horne told her that he had
“the next best thing,” explaining that he meant “coke.” Before
he could give her “coke,” however, he indicated that he needed a
baby food jar and some baking soda in order to cook it. Officer
Cole told Horne that she could obtain the baking soda and a jar
from her room. When Officer Cole returned to her room, Horne
called, but she did not answer.
A few minutes later, Officer Cole exited her room and
returned to the sidewalk, where she again saw Horne, now wearing
only boxer shorts. He initiated a second encounter, during
which he talked about cooking the cocaine and told Officer Cole
that he did not need the baking soda anymore. Horne told
Officer Cole to return to her room and that he would be up in 15
or 20 minutes because they were “doing the cook now.” Before
separating, Horne asked Cole to pull up her sweatshirt. When
she did, Horne touched Cole between her legs and told her to
“hold that thing” for him. Cole responded that Horne would have
to “wait for that.” As Cole walked away, Horne asked Cole to
pull up the back of her sweatshirt, which Cole did.
3
Approximately 20 minutes later, Horne knocked on Officer
Cole’s door. When Cole opened the door and let Horne in, Horne
was arrested by police officers for solicitation of
prostitution. The police searched Horne and found drugs in the
pockets of his shorts.
In these circumstances, we have little difficulty
concluding that the police officers had reason to believe that
Horne came to Officer Cole’s room to follow through with his
offer to exchange drugs for sexual favors. The two had
conversations that were sexual in nature, one of which included
Horne making physical sexual advances toward Officer Cole, and
Horne changed into his shorts after the first conversation and
before returning to Cole’s room. Because Cole had previously
informed Horne that she was “working” and needed money, it was
reasonable for Officer Cole to conclude that when Horne said he
would come to her room with crack cocaine, he was intending to
pay for sex with the drugs.
Officer Cole testified that she had significant experience
working as an undercover prostitute, having previously served as
one seven or eight times, leading to 35 or 40 arrests. Based on
her experience and the facts of her encounter with Horne, she
reasonably concluded that Horne was soliciting sex, for which he
intended to pay with crack cocaine, a proposal that -– once he
came to her room to consummate -- violated Virginia Code § 18.2-
4
346(B) (providing that “[a]ny person who offers money or its
equivalent to another for the purpose of engaging in sexual acts
. . . and thereafter does any substantial act in furtherance
thereof shall be guilty of solicitation of prostitution”).
We affirm the district court’s findings that the police
officers had probable cause to arrest Horne for solicitation of
prostitution in violation of Virginia law. And because the
officers made a valid arrest upon probable cause, we conclude
that the search incident to arrest was constitutional. See
Virginia v. Moore, 128 S. Ct. 1598, 1608 (2008).
II
Horne next contends that the district court abused its
discretion in refusing to appoint substitute counsel to
represent him for a second time -– which would have been a third
appointed counsel.
At the outset, the district court appointed Arenda Wright
Allen to represent Horne. But because Allen refused to file a
specific pretrial motion designated by Horne, Horne became
displeased with her. Allen filed a motion to withdraw, and the
district court discharged her and appointed another attorney,
Jon Babineau, as substitute counsel.
Thereafter Horne became displeased with his second
appointed counsel and sought to discharge him because he refused
5
to follow Horne’s script for trial. When Babineau brought the
issue to the attention of the court with a “motion for inquiry,”
the court held a hearing, during which it advised Horne that the
court would not appoint a third counsel for Horne. Horne then
insisted that he would represent himself, a request that the
court granted.
In denying Horne’s request for a third substitute counsel,
the district court found first that Horne’s request was not
timely, inasmuch as it was made only five days before trial and
the court had already postponed the trial once in order to
provide Horne with the second substitute counsel.
The district court also found, after a thorough inquiry,
that Horne had not shown good cause for substitution of counsel
and that any friction between Horne and Babineau stemmed
“largely from the defendant’s own belligerence and disagreements
with Mr. Babineau as to trial strategy.” The court explained:
Mr. Babineau did not join in the defendant’s request
for new counsel to be appointed because Mr. Babineau
stated that he did not feel that there had been a
total breakdown in communication and that he could
still zealously represent the defendant at trial. Mr.
Babineau is the defendant’s second court-appointed
counsel and the defendant has had the benefit of two
well-respected and experienced defense attorneys. The
defendant’s first court-appointed counsel, Ms. Allen,
asked to withdraw because the defendant became
belligerent when she refused to file the motions the
defendant requested because she found them to be
without merit and frivolous. After listening to both
the defendant and Mr. Babineau explain the situation,
the court finds the defendant’s problem with Mr.
6
Babineau to be almost identical. The defendant does
not want Mr. Babineau to represent him because Mr.
Babineau will not follow the defendant’s exacting
instructions about how to proceed and what to say at
trial. The defendant does not want any of Mr.
Babineau’s legal advice or trial strategy, but merely
wants Mr. Babineau to read verbatim from the
defendant’s script.
Finally, the district court found that there had not been a
total breakdown in communication between Horne and Babineau so
as to preclude an adequate defense. Babineau himself confirmed
that he did not “believe there [was] a basis for [him] to
withdraw as counsel in this particular case,” and he promised
“zealously [to] represent [Horne] in the case.”
In light of the facts found by the district court, we
cannot conclude that the district court abused its discretion in
refusing to appoint a third substitute counsel for Horne. “An
indigent defendant . . . has no right to have a particular
lawyer represent him and can demand a different appointed lawyer
only with good cause.” United States v. Gallop, 838 F.2d 105,
108 (4th Cir. 1988); see also United States v. Gonzalez-Lopez,
548 U.S. 140, 151 (2006) (“[T]he right to counsel of choice does
not extend to defendants who require counsel to be appointed for
them”). Moreover, the determination of whether good cause
exists rests within the discretion of the trial court, see
Gallop, 838 F.2d at 108. We conclude that in the circumstances
of this case, the district court did not abuse that discretion.
7
III
As a corollary to the previous argument, Horne contends
that he “never clearly and unequivocally asserted his desire to
represent himself.” See Faretta v. California, 422 U.S. 806,
821 (1975) (holding that a defendant has a Sixth Amendment right
to self-representation); United States v. Frazier-El,
204 F.3d
553, 558 (4th Cir. 2000) (providing that a court may grant a
defendant’s request to represent himself if the request is (1)
timely, (2) clear and unequivocal, and (3) knowing, intelligent,
and voluntary).
During the hearing on Babineau’s motion for inquiry about
continued representation, Horne repeatedly expressed a desire to
represent himself if Babineau would not follow Horne’s script
for trial. And the district court repeatedly advised Horne that
it did not think it would be in his best interest to represent
himself, warning Horne of the disadvantages of self-
representation. Nonetheless, Horne persisted. After
admonishing and questioning Horne carefully, the district court
said to Horne, “And you are not going to come back to this court
later on and say, hey, the judge should never have let me
represent myself,” to which Horne responded, “I’m all right.”
The court then granted Horne’s request, concluding that Horne
“established that he had a full understanding of his
responsibilities and the possible consequences, and he clearly
8
and unequivocally expressed his desire to represent himself at
trial.”
On this record, we conclude that Horne effectively waived
his right to counsel and asserted his right to self-
representation and that the district court did not err by
allowing Horne to proceed pro se. See Faretta, 422 U.S. 806;
United States v. Singleton,
107 F.3d 1091, 1096-98 (4th Cir.
1997).
IV
Horne further contends that “[r]ather than permitting [him]
to represent himself at trial, the Trial Court should have
imposed reasonable conditions on trial counsel, or have provided
advisory counsel to [him].”
There is, however, no constitutional right to advisory
counsel or some other form of hybrid representation during self-
representation. See Singleton, 107 F.3d at 1102. On this
record, we conclude that the district court did not abuse its
discretion in refusing to provide advisory counsel to Horne,
especially when it explicitly warned Horne before he chose to
represent himself that the court would not appoint standby
counsel or advisory counsel.
9
V
Horne next contends that “the trial court committed ‘Plain
Error’ in failing to instruct the jury on the lesser included
offense of simple possession of a controlled substance.” He
argues that “the evidence would have permitted a jury rationally
to find [him] guilty of simple possession,” in violation of 21
U.S.C. § 844.
A review of the record, however, does not support Horne’s
assertion that evidence existed to support the lesser-included
offense, and thus we conclude that the district court did not
err in instructing the jury on only the offense of possession
with intent to distribute, in violation of 21 U.S.C. §
841(a)(1).
At trial, the government introduced Horne’s written
statement that he intended to exchange the controlled substances
on his person for sexual favors. The government also introduced
testimony regarding Horne’s statements to Officer Cole that he
would pay her with cocaine, the “next best thing” to money, and
testimony of Horne’s actions and sexual advances toward Cole,
implying that he would exchange drugs for sexual favors.
Moreover, Horne presented no evidence from which a reasonable
jury could have found that his intent was to possess the drugs
for personal use. Indeed, no one testified at trial that Horne
10
used drugs or that he possessed drugs for any purpose other than
distribution.
Thus, we cannot conclude that the district court erred in
not having given an instruction on the lesser-included offense
of simple possession. See United States v. Wright, 131 F.3d
1111, 1112 (4th Cir. 1997) (holding that a defendant is entitled
to an instruction on a lesser-included offense when the element
distinguishing the two offenses is “sufficiently in dispute
[such] that the jury could rationally find the defendant guilty
of the lesser offense but not guilty of the greater offense”
(internal quotation marks and citation omitted)).
VI
Horne also contends that the district court “failed to make
a satisfactory record of whether Horne knowingly and voluntarily
waived his right to testify.” Because he did not raise the
issue below, Horne asserts that “the error was plain, that it
affected his substantial rights, and [that it] warrants this
court’s review.”
While a waiver of the right to testify must be knowing and
intelligent, there is no affirmative duty on a district court to
advise the defendant of his right or to obtain an on-the-record
waiver of that right. See United States v. McMeans, 927 F.2d
162, 163 (4th Cir. 1991); see also Sexton v. French,
163 F.3d
11
874, 882 (4th Cir. 1998) (“[T]rial counsel, not the court, has
the primary responsibility for advising the defendant of his
right to testify and for explaining the tactical implications of
doing so or not”).
Thus, the district court did not err in failing to advise
Horne formally of his right to testify or to obtain an on-the-
record waiver of that right. Horne nonetheless was well aware
of the right. He discussed the right to testify with his
attorney prior to the suppression hearing, at which he elected
to testify. In addition, the district court advised Horne
before trial of the instructions that the court intended to give
in the event that Horne decided to testify, and the court
revisited the issue and advised Horne of the possible
implications of deciding to testify at the conclusion of the
government’s case-in-chief, noting that “you are going to have
to decide overnight whether you want to testify or whether you
don’t want to testify.” Because Horne “knew that he could
testify if he wanted to, his failure to testify . . . cannot be
the product of ignorance of his right. Instead, his failure to
testify was of his own choosing; he can not now approach the
court and complain of the result of his decision.” McMeans, 927
F.2d at 163.
12
VII
Finally, Horne contends that he was denied the opportunity
of having two police officers (Officer R.M. Jackson and Officer
J.V. Natiello) testify as witnesses in his defense. He contends
that these officers would have impeached the testimony of other
officers who testified at trial. Horne also contends that he
was denied access to witness Kennette Alleyne, the woman with
whom he shared his motel room. He argues that he “was not told
that he could have asked Alleyne what, if any, promises were
made to her in exchange for her refusing to cooperate with the
ongoing internal affairs investigation” regarding money
allegedly stolen from his motel room.
On the morning of trial, Horne advised the district court
that he did not intend to call any witnesses. But after the
government rested, Horne requested that Officers Jackson and
Natiello be summoned by the court to testify to impeach the
other officers based on his claim that money in his room was
missing after the search. Horne, however, did not make the
required showing that either of the witnesses would testify in
his favor by providing testimony material to his defense. See
United States v. Rivera, 412 F.3d 562, 569-70 (4th Cir. 2005).
These two officers had no contact with Horne, and they did not
provide any information regarding prior inconsistent statements
of any government witness. As a consequence, Horne could not
13
have shown that they would have provided testimony in his favor.
While Horne had a right to have witnesses called in his favor,
he did not have a right to conduct “an exploratory foray based
on mere speculation.” Rivera, 412 F.3d at 570.
In addition, we note that had the district court permitted
Horne to present evidence regarding money taken from his motel
room during the course of the search, the testimony might have
exposed Horne to the government’s introducing evidence of crack
cocaine found in his motel room –- the basis for Count III. As
it turned out, without the evidence, the government moved to
dismiss Count III on its agreement not to introduce this
evidence in its case-in-chief based on questions about the
constitutionality of the search of Horne’s motel room.
With respect to Kennette Alleyne, Horne did subpoena her to
trial, but she asserted her Fifth Amendment right to refuse to
testify in light of pending state charges. For that reason,
Horne said she could go. Accordingly, there is no issue that
the court denied Horne access to Alleyne. Moreover, had Alleyne
been willing to testify, she too might have opened the door to
the government’s presentation of evidence on Count III.
For the reasons given, the judgment of the district court
is
AFFIRMED.
14
