                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 11-2348
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Mandel McDonald Benson,                *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: February 14, 2012
                                Filed: July 11, 2012
                                 ___________

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
                          ___________

SHEPHERD, Circuit Judge.

      Mandel McDonald Benson challenges his conviction for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g) and the 235-month
sentence the district court1 imposed. We affirm.




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
                                           I.

        On December 15, 2009, Benson shoplifted from a Wal-Mart store in
Bloomington, Minnesota. Officer Michael Utecht was in the proximity of the store
and observed Benson, who matched the description of the suspected shoplifter,
running away from the store. Officer Utecht yelled for Benson to stop. Instead of
stopping, Benson ran faster, and Officer Utecht began pursuing Benson. Benson ran
into the parking lot of a nearby strip mall. For two or three seconds, Officer Utecht
lost sight of Benson as Benson ducked down between two cars. When he reappeared,
Benson complied with Officer Utecht’s orders to stop and place his hands on his
head. After handcuffing Benson and placing him in the patrol car, Officer Utecht
searched the area where he had lost sight of Benson and found a triangular nylon case
containing a Ruger .357 revolver under one of the vehicles. Officer Utecht then took
Benson back to the store for a “show-up identification,” and a Wal-Mart employee
identified Benson as the shoplifter. Based on his arrest, the police were able to obtain
a search warrant to collect DNA evidence from Benson which additionally connected
him to possession of the handgun.

       On October 5, 2010, a grand jury indicted Benson on one count of being a
felon in possession of a firearm. Prior to trial, Benson moved to suppress the DNA
evidence as fruit of an unlawful seizure and arrest. The district court denied the
motion, holding Officer Utecht had reasonable suspicion to detain Benson and to
return him to Wal-Mart for the show-up identification. The district court also found
that probable cause to arrest Benson existed once he was positively identified by the
Wal-Mart employee.

      The trial began on January 18, 2011, and was scheduled for no more than three
days. After the jury was empaneled and the government had presented its case with
the exception of a final witness, Benson requested that the court discharge Reynaldo
Aligada, Jr., the Assistant Federal Public Defender who had been appointed to

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represent Benson. The court cautioned Benson, but he insisted in proceeding pro se
with Aligada as stand-by counsel. With the district court’s permission, the
government asked Benson a series of questions to determine whether his waiver of
counsel was knowing, voluntary, and intelligent. The government asked Benson
whether he understood that by proceeding pro se he would not be able to appeal his
conviction on the basis that he did not have an attorney. Benson’s response indicated
that he did not understand, and he added, “I’m not going to understand it.” Based on
this response, the district court denied the request to dismiss Aligada as counsel.
Benson continued his protest, clearly stating that he did not want Aligada to continue
as his counsel. The court announced three options: (1) have Aligada continue as
counsel, (2) appoint new counsel, which would require a delay in the trial, or (3)
allow Benson to proceed pro se with Aligada as stand-by counsel. Before the court
determined which option to adopt, Aligada moved to withdraw as counsel, asserting
that the relationship between him and Benson had broken down and that a conflict
existed between them. The court granted the motion and excused Aligada as counsel.
Over the government’s objections, the court appointed new counsel and continued the
trial until February 8, 2011.

       The district court appointed Leon Trawick to represent Benson. Trawick filed
a motion for a mistrial, arguing that his introduction mid-trial undermined the fairness
of the proceedings. He further argued that he intended to present a slightly different
defense than Aligada had planned. The court denied the mistrial motion. As the date
to resume trial approached, Trawick informed the court that he and Benson disagreed
over trial strategy and that Benson was again contemplating proceeding pro se. At
a status conference hearing the day before the trial was to resume, Benson requested
permission to proceed pro se, and Trawick questioned Benson extensively about his
request to proceed pro se, specifically focusing on Benson’s waiver of a claim of
ineffective assistance of counsel based on the pro se representation. Benson told the
court, “I don’t want this man [Trawick] representing me.” The court reserved ruling
on the request until the resumption of trial the following day. Before the jury

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returned, Benson reiterated his desire to proceed pro se. The court granted the
request, allowing Trawick to remain as stand-by counsel. As the jury returned, the
court informed it that Benson would be representing himself. The government then
called its final witness and rested its case. Benson offered an opening statement and
proceeded to recall three witness and to call two additional witnesses. After closing
arguments, the jury found Benson guilty of being a felon in possession of a firearm.

       After the trial, Benson requested that Trawick be reappointed to represent him
at sentencing. Despite the district court’s grant of this motion, Benson filed multiple
pro se motions and asked again, before sentencing, that he be allowed to proceed pro
se. The court granted his request, and Benson proceeded pro se at the sentencing
hearing. The district court denied Benson’s request for a downward variance to 180
months, sentencing him instead to 235 months, which was the bottom of the
applicable Sentencing Guidelines range.

                                           II.

       With newly-appointed counsel, Benson appeals his conviction and sentence.
First, he claims that the district court erred in denying his motion to suppress the
DNA evidence obtained after his arrest. Second, he argues that his waiver of the right
to counsel was not knowing, voluntary, and intelligent. Third, he argues that the
district court should have granted his motion for mistrial. Fourth, he asserts the
district court failed to set forth in the record sufficient explanation of the sentencing
factors in 18 U.S.C. § 3553(a). In addition to the brief submitted by his appointed
counsel, Benson has also submitted a pro se “supplement” to his appellate brief.
Therein he raises five additional arguments.




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                                          A.

       Benson argues that the DNA evidence tying him to possession of the handgun
should have been suppressed as fruit of an unlawful detention or arrest.2 After his
arrest, the government obtained a search warrant to seize DNA from Benson. This
DNA was compared to that found on the handgun, and the evidence was used at trial
to show that Benson possessed the handgun. The district court denied the motion to
suppress, holding that Benson’s detention and arrest did not violate the Fourth
Amendment. We review the district court’s factual findings for clear error and its
legal determination de novo. See United States v. Gaines, 639 F.3d 423, 427-28 (8th
Cir. 2011).

       The DNA that officers collected from Benson pursuant to a search warrant does
not constitute fruit of the poisonous tree based on Benson’s detention and arrest.
First, Officer Utecht had a reasonable, articulable suspicion that Benson had just
committed the shoplifting, and therefore Officer Utecht was justified in conducting
the Terry stop of Benson. See Terry v. Ohio, 392 U.S. 1, 21 (1968). “Various
behaviors and circumstances can contribute to, or be sufficient to provide, reasonable,
articulable suspicion. For example, unprovoked flight at the sight of an officer can
contribute to reasonable, articulable suspicion.” United States v. Horton, 611 F.3d
936, 940 (8th Cir. 2010) (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)), cert.
denied, 131 S. Ct. 1032 (2011). “Also, a stop typically is justified when a suspect
matches the description of a person involved in a disturbance near in time and



      2
       The district court found, and Benson does not challenge the finding, that the
handgun was abandoned property and thus not subject to suppression for any alleged
Fourth Amendment violation. See United States v. Tugwell, 125 F.3d 600, 602 (8th
Cir. 1997) (“A warrantless search of abandoned property does not implicate the
Fourth Amendment, for any expectation of privacy in the item searched is forfeited
upon its abandonment.”).

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location to the stop.” Id. (citing United States v. Hicks, 531 F.3d 555, 558 (7th Cir.
2008)).

       As the district court found, shortly after the shoplifting occurred, Officer
Utecht spotted Benson, who matched the description of the alleged shoplifter, running
away from the store. When Officer Utecht ordered Benson to stop, Benson instead
increased his speed and sought to evade Officer Utecht. These articulable facts
justify Officer Utecht’s seizure of Benson to investigate whether he was involved in
the shoplifting. Further, the placement of Benson in a patrol car and transporting of
him back to the store for identification does not violate the Fourth Amendment. See
United States v. Martinez, 462 F.3d 903, 908 (8th Cir. 2006) (“[T]he exigencies were
such that the officers could not dispel their suspicions that had prompted the Terry
stop until they transported Martinez back to the bank for the show-up
identification.”). Therefore, the district court properly denied the motion to suppress
the DNA evidence later collected because Benson’s stop and arrest did not violate the
Fourth Amendment.

                                          B.

        The next issue on appeal is whether Benson’s waiver of his right to counsel
was knowing, intelligent, and voluntary. In his brief, Benson claims that his waiver
of counsel was invalid because he did not make a clear and unequivocal request to
proceed pro se. Instead, Benson argues, the court made the offer of self-
representation in response to Benson’s repeated questioning of Aligada’s failure to
employ a defense expert to challenge the government’s DNA evidence. Benson
contends that his request at that time to waive his right to counsel was instead a
compulsion to accept the court’s offer. Although the court considered Benson’s
request to proceed pro se, it chose instead to dismiss Aligada as counsel, continue the
trial for several weeks, and appoint new counsel. Benson maintains that because he



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was not unequivocal in his first request to proceed pro se, his second request to do so
is necessarily invalid. We reject this argument.

       “This court reviews de novo a district court’s decision to allow a defendant to
proceed pro se.” United States v. Turner, 644 F.3d 713, 720 (8th Cir. 2011). Under
the Sixth Amendment, a criminal defendant is guaranteed, subject to limitations, the
right to the assistance of counsel; he is also guaranteed the right to represent himself.
Faretta v. California, 422 U.S. 806, 818-21 (1975). “Before permitting a defendant
to exercise the constitutional right to proceed pro se, the trial court must be satisfied
that the waiver of counsel is knowing and voluntary.” Turner, 644 F.3d at 720-21.

      In making the assessment of a waiver’s validity, we look to the
      particular facts and circumstances in the case, including the background,
      experience, and conduct of the accused. Meyer v. Sargent, 854 F.2d
      1110, 1114 (8th Cir. 1988). The “key inquiry,” we have said, is
      “whether the accused was made sufficiently aware of his right to have
      counsel and of the possible consequences of a decision to forgo the aid
      of counsel.” Id. (internal quotations omitted). We will uphold a district
      court’s grant of a defendant’s motion to represent himself “if the record
      shows either that the court adequately warned him or that, under all the
      circumstances, he knew and understood the dangers and disadvantages
      of self-representation.” United States v. Patterson, 140 F.3d 767,
      774-75 (8th Cir. 1998).

United States v. Kiderlen, 569 F.3d 358, 364 (8th Cir. 2009).

       These requirements were met in this case. The court and the government
warned Benson of the pitfalls of representing himself, including explicitly telling him
that he would have to follow the Federal Rules of Evidence and the Federal Rules of
Criminal Procedure. When Benson initially expressed some reservations about
proceeding without counsel, the district court took the extraordinary step of
continuing the trial for weeks so that Trawick could be appointed. When the trial


                                          -7-
resumed, Benson again sought the dismissal of his appointed counsel, and he was
clear and unequivocal in his desire to represent himself. Again, the district court
explained the difficulties Benson would face, but despite these warnings, Benson was
determined to have Trawick dismissed as counsel. See United States v. Taylor, 652
F.3d 905, 909 (8th Cir. 2011) (“[A] persistent, unreasonable demand for dismissal of
counsel and appointment of new counsel . . . is the functional equivalent of a knowing
and voluntary waiver of counsel. In such an instance, the trial court may proceed to
trial with the defendant representing himself.” (quoting United States v. Moore, 706
F.2d 538, 540 (5th Cir. 1983))). The record reflects that Benson’s decision to waive
his right to counsel was knowing and voluntary, and therefore we uphold the district
court’s decision to allow Benson to represent himself at trial.

                                           C.

      Next Benson argues that the district court should have granted his mistrial
motion. We review the denial of a motion for a mistrial for abuse of discretion.
United States v. Weaver, 554 F.3d 718, 723 (8th Cir. 2009). We will affirm a district
court’s denial of a mistrial absent an “abuse of discretion resulting in clear prejudice.”
United States v. Koskela, 86 F.3d 122, 125 (8th Cir. 1996).

       Benson argues that he was prejudiced by having Trawick appointed to the case
halfway through the trial. He also claims Trawick’s plan to follow a slightly different
defensive theory than Aligada prejudiced him. First, we can find no case that holds
the fact that counsel was substituted or dismissed mid-trial, in itself, necessarily
results in prejudice to a criminal defendant, nor does Benson suggest any specific way
he was prejudiced by Trawick’s substitution. Second, even if it could be argued that
Trawick intended to follow a different defensive theory, Trawick was never given the
opportunity to present that theory because Benson again sought to proceed pro se
before the trial resumed. Viewed from the position of the jury, after the weeks-long
continuance, Benson began representing himself with Trawick as stand-by counsel.

                                           -8-
As the district court held, there is nothing in the record to suggest that the
continuance or allowing Benson to proceed pro se necessarily resulted in prejudice
to Benson. Thus, the district court’s denial of the mistrial motion was not an abuse
of its considerable discretion.

                                         D.

       The final argument presented in the counseled brief is that the district court
failed to set forth enough reasons justifying the 235-month sentence to permit review
by this court. This argument raises an issue of alleged procedural error that was not
raised to the district court. Accordingly, our review is for plain error. See United
States v. Nissen, 666 F.3d 486, 490 (8th Cir. 2012). The 235-month sentence
imposed by the district court was at the bottom of the properly calculated Guidelines
range. “[W]hen a judge decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.” Rita v. United States, 551
U.S. 338, 356-57 (2007). In this case, the district court considered the presentence
report, heard arguments by Benson, took evidence, and referenced section 3553(a).
Although the district court did not recite every section 3553(a) factor, the court did
state that it had “taken into account the nature and circumstances of the instant
offense, as well as the history and characteristics of the defendant, and [found] that
the sentence imposed is sufficient but not greater than necessary to afford adequate
deterrence to future criminal conduct.” (Sent. Tr. at 60.) “If a district court
references some of the considerations contained in § 3553(a), we are ordinarily
satisfied that the district court was aware of the entire contents of the relevant
statute.” See United States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008) (quotation
omitted). The district court committed no procedural error at sentencing.




                                         -9-
                                         E.

       Finally, Benson has tendered a pro se supplemental brief for consideration by
this panel. It is Eighth Circuit policy not to address issues raised by a defendant in
pro se filings with this Court when he is represented by counsel. United States v.
Halverson, 973 F.2d 1415, 1417 (8th Cir. 1992) (per curiam). Nevertheless, we grant
Benson’s motion to file the pro se supplemental brief. We have reviewed this pro se
filing and find his additional arguments meritless.

                                         III.

     Accordingly, we grant Benson’s request to file the pro se supplemental brief,
and we affirm Benson’s conviction and sentence.
                     ______________________________




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