     Case: 17-30065    Document: 00514554164       Page: 1   Date Filed: 07/13/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                    No. 17-30065                      FILED
                                                                  July 13, 2018
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

             Plaintiff - Appellee

v.

TYRONE LARRY SMITH, also known as Marques Stewart, also known as
Tyrone Letron Smith, also known as Tyrone Latron Smith, also known as
Tyrone L. Smith, also known as Troy Green, also known as Antoine Lavell
Franklin, also known as Michael Mummadd, also known as Taz; LACOYA
WASHINGTON,

             Defendants - Appellants



                Appeals from the United States District Court
                    for the Western District of Louisiana


Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Defendants Tyrone Smith and Lacoya Washington were convicted of sex
trafficking involving a fourteen-year-old girl. On appeal, Washington
challenges the sufficiency of the evidence against her, the denial of her motion
for severance, and the reasonableness of her sentence. Finding no error, we
AFFIRM her conviction. Smith challenges the sufficiency of the evidence
against him, the denial of his motion to suppress, and the denial of his motion
to reassert his right to counsel. We find that the district court erred in denying
Smith’s motion for counsel. We REVERSE his convictions.
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                                  No. 17-30065
                                        I.
      In the summer of 2015, Tyrone Smith resided with Lacoya Washington
and her four children at Washington’s apartment in Shreveport, Louisiana.
During this time, Smith met B.R., a fourteen-year-old from Texas, on the
dating website Plenty of Fish. The relationship moved to texting and telephone
calls. B.R. told Smith that she was nineteen. Smith suggested that B.R. come
to Louisiana and live with him, and B.R. agreed.
      In June 2015, B.R. took a Greyhound bus to Shreveport. B.R. testified
that Washington picked her up at the bus station and the two met Smith at
the apartment. Shortly after her arrival, Smith told B.R. “there’s someone
outside waiting and you pretty much need to go to the car, have sex with him,
get money, and come inside.” B.R. testified that when she objected, Smith told
her that if she refused, she would “get in trouble for it.” She said that after the
incident Smith told her “[t]his is what you’re going to be doing from now on.
You better be okay with it.” Smith arranged similar “car dates” three or four
times.
      Smith later instructed B.R. to take photographs on his cell phone, some
of which he sent to Washington. Smith used the photographs to create an
online advertisement for prostitution on the website Backpage.com. He paid
for the ad with a prepaid gift card bought with Washington’s money. Smith
used Washington’s email address and his phone number. B.R. claimed that
Smith and Washington collaborated on the text of the ad. The next day, Smith
posted a second ad using his own email address.
      B.R. testified that when men responded to the ad, Smith or Washington
told her what to charge. B.R. estimated that she had sex with six men who
responded to the ad. She testified that Washington or Washington’s boyfriend
drove her to the motels to meet the men. Washington also paid for the motel
rooms, using money that Smith gave her from customers. B.R. testified that
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                                No. 17-30065
after a customer left, they would “keep [the room] for the night” and “drink
[and] do coke.” Washington provided the cocaine.
      On July 6, Smith and B.R. got into a fight because she had locked him
out of the hotel room. Smith slapped B.R. and told Washington to leave the
room. The fight continued. B.R. said she wanted to leave and locked herself in
the bathroom. Smith entered the bathroom and hit B.R. approximately three
times with a closed fist. He then got his gun, threatened suicide, and pointed
the gun at B.R. The two eventually “calmed down” and went to sleep.
      On July 7, Shreveport Police Department Officer Miles discovered the
online ads, suspected that B.R. was a minor, and arranged a sting operation.
Miles called the listed number to set up a meeting. When they arrived at the
hotel, SPD officers detained B.R., who told them that she was a minor, that
Smith was her pimp, and that he had beaten her. Officers searched the room
and found Smith’s telephone, the prepaid gift card, and a loaded gun.
      Officers learned that the room was rented under Washington’s name,
located her, and took her into custody where she made a statement.
Washington told the police she believed B.R. continued to engage in
prostitution because she was afraid of Smith. Officers also located Smith, who
provided a statement where he admitted that he had met B.R. online and that
he knew she was having sex with adult men in Shreveport.
      Smith and Washington were charged with sex trafficking in violation of
18 U.S.C. § 1591(a)(1) & (b)(1)–(2). Smith was also charged with interstate
prostitution by coercion or enticement under 18 U.S.C. § 2242. Smith and
Washington were jointly tried in a three-day bench trial. As explained in more
detail below, Smith proceeded pro se. Washington was represented by counsel.
      Both were convicted as charged. Smith received a 384-month sentence
for Count 1 and a concurrent 240-month sentence for Count 2. Washington was
sentenced to 292 months.
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                                        No. 17-30065
                                               II.
       On appeal, Washington challenges the sufficiency of the evidence against
her, the district court’s denial of her motion for severance, and the
reasonableness and constitutionality of her sentence.
                                               A.
       Washington argues that the government provided insufficient evidence
that she intentionally assisted or participated in trafficking B.R. 1 She admits
that she participated in a series of “otherwise innocent conduct” including
renting the hotel rooms, driving Smith and B.R. to hotels, and socializing with
them. She further concedes that “at some point she became aware of what was
going on and did nothing to stop it,” but argues that “failure to protect B.R. is
not equivalent to intentionally assisting in the crime.”
       “When a defendant challenges a bench-trial conviction on sufficiency-of-
the-evidence grounds, we focus on ‘whether the finding of guilt is supported by
substantial evidence, i.e., evidence sufficient to justify the trial judge, as the
trier of fact, in concluding beyond a reasonable doubt that the defendant is
guilty.’” 2 In doing so, “[w]e ‘should not weigh evidence, nor should [we]



       1 Washington was convicted under 18 U.S.C. § 1591, which criminalizes sex trafficking
of a minor and sex trafficking by force, fraud, or coercion. To show a violation of Section 1591,
the government must prove the following elements:
       (1) that the defendant knowingly recruited, enticed, harbored, transported,
       provided, obtained, or maintained by any means [the victim];
       (2) that the defendant committed such act knowing or in reckless disregard of
       the fact that means of force, threats of force, fraud coercion, or any combination
       of such means, would be used to cause the person to engage in a commercial
       sex act [or that] the person had not attained the age of 18 years and would be
       caused to engage in a commercial sex act;
       (3) that the defendant’s acts were in or affected interstate [or] foreign
       commerce.
FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (Criminal Cases), Offense Instruction
No. 2.86 (2015) (internal punctuation omitted).
       2 United States v. Tovar, 719 F.3d 376, 388 (5th Cir. 2013) (quoting United States v.

Esparza, 678 F.3d 389, 392 (5th Cir. 2012)) (some internal quotation marks omitted).
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                                       No. 17-30065
determine the credibility of witnesses.’” 3 Instead, “we must ‘view all evidence
in the light most favorable to the government and defer to all reasonable
inferences by the trial court.’” 4
       The record is replete with evidence of Washington’s involvement. At
trial, the government presented evidence that Washington permitted Smith to
use her money and email address to post an online prostitution advertisement.
Washington allegedly approved the ad’s text and some of the photographs.
According to B.R., Washington told her how much to charge customers, drove
her to meet clients, and obtained the hotel rooms. Washington denied many of
these claims at trial; however, the trial court made clear that it found
Washington’s innocent explanations “noncredible,” and there is ample
evidence supporting her knowing involvement.
                                              B.
       Washington also contends that the district court erred in trying her
alongside Smith. We review the denial of a motion to sever for abuse of
discretion. 5 “The threshold for finding such discretion to have been abused . . .
is especially high when the trial is to be to the court rather than a jury.” 6 “[T]he
defendant bears the burden of showing specific and compelling prejudice that
resulted in an unfair trial, and such prejudice must be of a type against which
the trial court was unable to afford protection.’” 7 Washington “is entitled to
reversal . . . only if [s]he identifies specific events during trial and demonstrates
that these events caused [her] substantial prejudice.” 8




       3  Id. (quoting United States v. Turner, 319 F.3d 716, 720 (5th Cir. 2003)) (alterations
in original).
        4 Id. (quoting United States v. Mathes, 151 F.3d 251, 252 (5th Cir. 1998)).
        5 United States v. Thomas, 627 F.3d 146, 156 (5th Cir. 2010).
        6 United States v. Cruz, 478 F.2d 408, 414 (5th Cir. 1973).
        7 Thomas, 627 F.3d at 157 (internal quotation marks omitted).
        8 Id.

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                                        No. 17-30065
       Before trial, Washington filed a motion for severance, arguing that her
involvement in the crime was “minimal” and expressing concern that she
“risk[ed] being punished for the alleged acts of Mr. Smith.” The trial court
originally granted this motion, and reconsidered its ruling after the parties
later agreed to a bench trial. Upon reconsideration, the district court found
that severance was “no longer warranted.” 9
       Washington now argues that she was unfairly prejudiced by being tried
alongside Smith because “[t]hroughout the whole proceeding, [he] displayed
disruptive and erratic behavior” and “[t]he acrimonious environment he
created made it impossible for [Washington] to get a fair trial.” We find no
abuse of discretion here. Washington does not identify “specific events” that
caused “substantial prejudice.” 10 Instead, she alleges only general “disruptive”
and “erratic” behavior. The mere fact that a co-defendant proceeded pro se does
not, on its own, create a “serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the [factfinder] from
making a reliable judgment about guilt or innocence.” 11 This is particularly
true where, as here, the case was tried to a judge, creating an “especially high”
threshold for abuse of discretion.
                                               C.
       Finally,     Washington        challenges      her     sentence    as    procedurally,
substantively, and constitutionally unsound. First, she contends that the court



       9 The court specifically stated that it was “fully able to control any courtroom outbursts
by Smith and the potential for spill-over prejudice is eliminated,” that “one trial [would] serve
judicial economy and obviate the need for the minor victim to testify in two separate trials,”
and that Bruton is inapplicable to bench trials.
       10 Thomas, 627 F.3d at 157.
       11 United States v. Tarango, 396 F.3d 666, 672–73 (5th Cir. 2005) (quoting Zafiro v.

United States, 506 U.S. 534, 537 (1993)). See, e.g., United States v. Mikolajczyk, 137 F.3d 237,
241–42 (5th Cir. 1998) (finding no abuse of discretion in refusing to sever where some
defendants proceeded pro se).
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                                     No. 17-30065
committed procedural error when it applied two-level enhancements for
“undue influence” and “use of a computer.” Next, she claims her sentence is
substantively unreasonable. Finally, she argues that her sentence is cruel and
unusual punishment violative of the Eighth Amendment.
       Washington’s PSR assigned her a base offense level of 34 with four two-
level enhancements, resulting in a total offense level of 42. With a criminal
history level I, this resulted in a Guidelines range of 360 months to life. At
sentencing, Washington objected to three of the enhancements. The court
granted Washington’s objection to an obstruction of justice enhancement, but
it applied two-level enhancements for undue influence and use of a computer
service. These adjustments lowered Washington’s offense level to 40 and her
Guidelines range to 292 to 365 months. The court then sentenced Washington
to 292 months.
       “This court reviews a sentencing decision for reasonableness using a two-
step process. First, the court determines whether the district court committed
any significant procedural error. Under the first step, this court reviews the
district court’s interpretation or application of the sentencing guidelines de
novo, and its factual findings for clear error. If there is no procedural error or
the error is harmless, this court then reviews the substantive reasonableness
of the sentence imposed for abuse of discretion.” 12
                                            1.
       The Sentencing Guidelines impose a two-level enhancement when a
participant in the criminal activity “unduly influenced a minor to engage in
prohibited sexual conduct.” 13 This enhancement applies where “a participant’s
influence over the minor compromised the voluntariness of the minor’s


       12 United States v. Groce, 784 F.3d 291, 294 (5th Cir. 2015) (internal citations and
quotation marks omitted).
       13 U.S.S.G. § 2G1.3(b)(2)(B).

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                                       No. 17-30065
behavior,” and there is a rebuttable presumption that such influence occurs
when the participant is at least ten years older than the minor victim. 14 To
apply a sentencing enhancement, the court must find facts supporting the
enhancement by a preponderance of the evidence. 15
       Washington argues that the evidence failed to prove she unduly
influenced B.R. to engage in prostitution. She concedes that Smith did so, but
claims she was “not a part of that plan.” The district court did not err in
applying this enhancement. First, as the court noted, the rebuttable
presumption applied due to Washington’s age, and she did not offer any
evidence to rebut that presumption. Second, the record contains evidence to
support the district court’s findings that Washington was “actively involved in
this entire matter, beginning almost immediately upon [B.R.]’s arrival to
Shreveport,” and that she exercised undue influence over B.R.
                                              2.
       The Guidelines authorize a two-level enhancement when the offense
involves “the use of a computer or an interactive computer service to . . . entice,
encourage, offer, or solicit a person to engage in prohibited sexual conduct with
the minor.” 16
       Washington argues that this enhancement should not apply because she
personally “had no involvement with a computer or computer service.”
However, the computer use enhancement can apply even where the defendant
was not the one directly soliciting customers. 17 Moreover, the district court




       14 U.S.S.G. § 2G1.3(b)(2)(B) cmt. n.3(B)
       15 United States v. Anderson, 560 F.3d 275, 283 (5th Cir. 2009).
       16 U.S.S.G. § 2G1.3(b)(3)(B).
       17 See, e.g., United States v. Pringler, 765 F.3d 445, 455 (5th Cir. 2014) (upholding the

computer use enhancement where a defendant purchased a computer, showed his girlfriend
how to use the webcam feature, and “knew of [his girlfriend]’s use of the computer for
advertising [the victim]’s services”).
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                                     No. 17-30065
found that Washington was involved in a “jointly undertaken criminal
activity,” a finding which is supported by the record. Because of that,
Washington is responsible for all reasonably foreseeable “acts and omissions of
others” within the scope of the criminal activity taken in furtherance of the
criminal activity. 18 As the district court noted at sentencing, the record
supports the conclusion that Smith operated a Backpage.com account to entice
people to engage in sexual conduct with B.R., a minor. Given Washington’s
participation in the joint undertaking, the district court did not err in applying
the computer use enhancement to Washington’s sentence.
                                            3.
      Because we find no procedural error in Washington’s sentence, we turn
next to its substantive reasonableness. 19 Washington argues that her sentence
is “substantively unreasonable because it is greater than necessary to [e]ffect
the purposes of sentencing” and “in light of her offense conduct.” Washington
also states that “[she] was a victim of [Smith] as well.”
      The district court sentenced Washington to 292 months, which was at
the bottom of her Guidelines range. A sentence within the properly calculated
Guidelines    range     is   presumptively       reasonable. 20    To    overcome   this
presumption, Washington must demonstrate that “the district court
improperly considered a factor, failed to take into account a factor, or made a
clear error in balancing the factors.” 21 She has not done so here.
                                            4.
      Lastly, Washington claims that her sentence is cruel and unusual
punishment, and thus unconstitutional, relying on the same arguments as her



      18 See U.S.S.G. § 1B1.3(a)(1)(B).
      19 Groce, 784 F.3d at 294 (internal citations and quotation marks omitted).
      20 United States v. Tuma, 738 F.3d 681, 695 (5th Cir. 2013).
      21 Id. at 695.

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                                       No. 17-30065
reasonableness claim. Eighth Amendment challenges are generally reviewed
de novo, but because Washington raises her Eighth Amendment challenge for
the first time on appeal, it reviewed for plain error. 22
       The Eighth Amendment “has been read to preclude a sentence that is
greatly disproportionate to the offense, because such sentences are ‘cruel and
unusual.’” 23 Yet this court has held that it will not “substitute its judgment for
that of the legislature nor of the sentencing court as to the appropriateness of
a particular sentence,” and thus “successful Eighth Amendment challenges to
prison-term lengths will be rare.” 24
       When faced with an Eighth Amendment challenge, “this court first
makes a threshold comparison of the gravity of the offense against the severity
of the sentence. Only if we determine that the sentence is ‘grossly
disproportionate to the offense’ will we compare [the defendant’s] sentence to
sentences for similar crimes in this and other jurisdictions.” 25
       Washington’s conviction stems from her participation in the sex
trafficking of a fourteen-year-old child. The Supreme Court has upheld a forty-
year sentence and $20,000 fine for possession and distribution of
approximately nine ounces of marijuana. 26 Based on that benchmark, we find
that a 292-month sentence for involvement in child sex trafficking does not rise
to the level of cruel and unusual punishment.




       22 United States v. Helm, 502 F.3d 366, 367 (5th Cir. 2007). On plain error review, a
defendant must show: “(1) there was legal error, (2) the error was plain, (3) the error affected
[the defendant’s] substantial rights, and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Id.
       23 United States v. Thomas, 627 F.3d 146, 160 (5th Cir. 2010).
       24 Id. at 160. See also Solem v. Helm, 463 U.S. 277, 290–91 (1983) (“[O]utside the

context of capital punishment, successful challenges to the proportionality of particular
sentences will be exceedingly rare.”) (internal quotation marks omitted).
       25 Thomas, 627 F.3d at 160.
       26 Hutto v. Davis, 454 U.S. 370, 370 (1982) (per curiam).

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                                      No. 17-30065
                                            III.
       We now turn to Smith’s argument that the district court violated his
Sixth Amendment right to counsel. At Smith’s initial appearance, he was
represented by counsel from the Office of the Federal Public Defender. Smith
subsequently filed a pro se motion to terminate the representation. The
magistrate judge terminated the appointment due to an “irreconcilable
conflict” between Smith and his counsel, denied Smith’s motion to proceed pro
se, and appointed Joseph Woodley, now appellate counsel, as substitute
counsel. The magistrate judge held that Smith could refile his motion “[i]f, after
spending a reasonable amount of time with Mr. Woodley discussing his case,
[he] still insists on representing himself.” 27
       Smith later refiled his motion to proceed pro se, and the magistrate judge
ordered a Faretta hearing. At the hearing, the magistrate judge told Smith that
this was “a terrible idea” and warned him: “You can’t come in on the morning
of trial when a jury is sitting there and go, ‘I changed my mind, Judge . . . I
decided I can’t do it,’ because then we’ll think you’re just doing it for delay
purposes.” The magistrate judge then granted the motion and appointed
Woodley as his standby counsel.
       On the morning of trial, Smith filed a Motion to Reassert Right to
Counsel, claiming that he could not “adequately defend [him]self in this
matter” due to “the complexities of the case” and “the psychological toll that
this case has taken on [him].” In support of his motion, Smith argued:
       I have a motion right here to – Defendant’s Motion to Reassert
       Right to Counsel. This situation has become a lot [sic] complex
       than I actually ever thought it would be, and I don’t – I don’t – I
       don’t think that I’ll be able to adequately represent myself here

       27In doing so, the court reminded the defendant that “the charges against him in this
matter are very serious and . . . he may be subject to an extensive term of imprisonment.”
Therefore, “the court strongly suggest[ed] that Defendant allow Mr. Woodley to serve as his
counsel throughout the remainder of the proceedings.”
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                                     No. 17-30065
      today or to even be emotionally detached to put myself in a position
      to be able to represent me to the point to where I can question
      people without offending this Court. 28 I don’t want to offend the
      court, and I know that my emotions will pretty much offend the
      court if I’m directly questioning or anything. I just want to reassert
      my right to counsel and I want to terminate my pro se motion, you
      know.

       The court asked Smith whether he was asking for “a continuance,” and
Smith initially responded “if that’s what it takes.” The district court asked for
clarification, saying: “I’m not putting words in your mouth. My question to you:
are you asking for a continuance on the basis that you no longer wish to
represent yourself, after a full hearing and granting of that motion?” Smith
said yes. The government objected “to any continuance.”
       The court began to rule on the motion, stating:
       At this particular point in time, standby counsel has been
       appointed for you and is available to you throughout the course of
       this. Simply because on the day of the trial you attempt to
       manipulate the judicial process . . . by then telling this court that
       you no longer wish to represent yourself –

Smith seized on the mention of standby counsel, stating:
       Actually, Your Honor, I mean, I’ve written several letters to Mr.
       Woodley. He, I’m pretty sure, can tell you that I’ve written several
       letters to him explaining to him that this is becoming
       overwhelming for me and that it’s becoming a real problem
       because I’m not able to adequately represent myself the way I
       wanted to represent – that I thought I would be able to. I – I just
       won’t be able to represent myself adequately, and I’m asking to
       reassert my right to counsel.




      28 This was after he had been warned about offending the court and the possibility of
sanctions.
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                                       No. 17-30065
The court replied, “I understand your reassertion of your right to counsel. It’s
denied at this time. We will proceed to trial. You have standby counsel who
has been appointed and been with you the entire time.”
        The court later ruled on the written motion, stating that it “believe[d]
that [the motion] [was] nothing more than an attempt to delay the trial of this
case.” The court then read transcripts from Smith’s Faretta hearing where the
magistrate judge had warned about the risks of self-representation. The court
concluded that “[i]n this particular instance, the defendant’s motion to reassert
his right to counsel is considered to be nothing more than an attempted delay
tactic, and this matter will proceed to trial.”
        On appeal, Smith contends that this denial violated his Sixth
Amendment right to counsel. “In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defense.” 29 The
right    to   counsel    “occupies     an    elevated     status    among      fundamental
constitutional rights.” 30 A defendant may waive this right and proceed pro se
if he chooses. Once he does so, “our Court has held that ordinarily the waiver
can be withdrawn and the right to counsel can be reasserted.” 31
        The post-waiver right to counsel is not unqualified. 32 We have held that
a defendant is “not entitled to choreograph special appearances by counsel, or
repeatedly to alternate his position on counsel in order to delay his trial or
otherwise obstruct the orderly administration of justice.” 33 At the same time,



        29U.S. CONST. amend. VI.
        30 United States v. Pollani, 146 F.3d 269, 274 (5th Cir. 1998) (citing Gideon v.
Wainwright, 372 U.S. 335, 342–43 (1963); Powell v. Alabama, 287 U.S. 45, 68 (1932)).
       31 Id. at 273.
       32 “Of necessity, the right to reassert a previously waived right of counsel has its

boundaries.” Id.
       33 United States v. Taylor, 933 F.2d 307, 311 (5th Cir. 1991) (internal citations and

quotation marks omitted). See also Pollani, 146 F.3d at 273 (“[A] pro se litigant may not abuse
his right [to counsel] by strategically requesting special appearances by counsel or by
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                                        No. 17-30065
a trial court must have some basis for concluding that a defendant is
attempting to delay or obstruct the proceedings. 34 And to be sure, the district
court, understandably frustrated, may have had reason to believe that Smith’s
primary motive was to delay his trial—an outcome that would have affected
not only his own trial, but also that of his co-defendant.
       But a court must also determine whether appointing counsel will require
delay. In United States v. Pollani, we held that even where a defendant is
“vigorously attempting to delay the start of trial,” a district court still cannot
deny his motion to be represented by counsel without reason to think that the
representation would impede the orderly administration of justice. 35 In
Pollani, we reversed a district court’s denial of a pro se defendant’s motion to
substitute counsel four days before trial. 36 The motion came after Pollani had
fired two lawyers, elected to proceed pro se, and then retained counsel and
sought a continuance and a substitution of counsel. 37 The district court denied
the continuance, and Pollani requested “that [the lawyer] still be available to
represent [him] as counsel” and said they would “just have to do a lot of
cramming” in the four days until trial. 38 The court denied the motion to
substitute counsel. On appeal, we upheld the court’s denial of the continuance,
but we found that the court erred in denying Pollani’s motion to be represented
by his chosen counsel. 39 We distinguished Pollani’s situation from a scenario



repeatedly altering his position on counsel to achieve delay or obstruct the orderly
administration of justice.”).
       34 Cf. Taylor, 933 F.2d at 311 (finding “no support” for district court’s refusal to allow

the defendant to re-assert the right to counsel where there is “no suggestion whatever that
[he] was attempting to abuse his rights to achieve some mischief, or that granting his request
would have interfered in any way with the calendaring of his sentencing”).
       35 Pollani, 146 F.3d at 273.
       36 Id. at 274.
       37 Id.
       38 Id. at 271.
       39 Id. at 274.

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                                      No. 17-30065
where “the defendant was only deprived of exercising the right to counsel in a
particular way which would unjustifiably delay the trial process.” 40 In doing
so, we specifically held that if “no delay [is] required for [a defendant] to
exercise his right” to be represented by counsel rather than himself, then the
defendant shall have “the option to be represented by counsel to the extent that
he [can] do so without interrupting the orderly processes of the court.” 41
      Pollani is plain in its teaching that a district court can deny a motion
seeking appointment of counsel—including the elevation of standby counsel to
trial counsel—when a defendant’s untimely request would result in delay. But
there is no showing here that this was the circumstance. The district court
focused on Smith’s purpose, finding that the motion was “nothing more than
an attempted delay tactic.” Based on that finding, the district court was
entitled to deny a continuance to allow counsel to prepare for Smith’s defense.
But Pollani teaches us that when a pro se litigant asks to be represented by
counsel, we are to look at the effect of the requested appointment or
substitution of counsel. A district court should make the appointment absent
a finding that it “would impede the orderly administration of justice.”
      It is not apparent from this record that elevating standby counsel to
counsel would have generated more delay than Smith’s unskilled efforts to
represent himself, about which Washington complained. As the district court
noted, standby counsel was present in the courtroom. The record demonstrates
that he was familiar with the case, having been appointed to represent Smith
prior to his Faretta hearing and having handled some pretrial telephone
conferences without Smith. On these facts, standby counsel may have been




      40   Id. at 273.
      41   Id. at 273–74.
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                                       No. 17-30065
prepared to take over Smith’s defense without delay. We do not know because
the district court did not inquire into standby counsel’s readiness to step in. 42
       Smith was entitled to representation to the extent that standby counsel
could take over representation “without interrupting the orderly processes of
the court.” 43 Because the record does not demonstrate that the elevation of
standby counsel to trial counsel would invariably work a delay and require a
continuance, we conclude that Smith was deprived of a fundamental
constitutional right, and his convictions must be reversed. 44
                                             IV.
       We AFFIRM Washington’s conviction and sentence, and we REVERSE
Smith’s convictions and REMAND for further proceedings consistent with this
opinion.




       42  Of course, the Sixth Amendment guarantees Smith’s right to effective assistance of
counsel. Here, standby counsel did not remark on his readiness to take on Smith’s defense.
If standby counsel indicated that he was not sufficiently prepared, this might present a
different case, requiring us to decide whether, as seems implicit in Pollani, a defendant who
files such a motion so close to trial waives any claims based on deficiencies in performance
for want of adequate preparation due to standby counsel’s elevation to counsel. But that
concern is not presented by the record before us.
        43 Pollani, 146 F.3d at 273–74.
        44 Because we find that the district court committed reversible error on this issue, we

need not address Smith’s remaining arguments.
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                                  No. 17-30065
EDITH H. JONES, Circuit Judge, concurring and dissenting:
      The majority today reverses and remands Tyrone Smith’s convictions for
sex trafficking a fourteen-year-old girl and prostitution by coercion or
enticement because the district court denied Smith’s motion to reassert his
right to counsel on the morning his trial was to begin. Because the district
court did not abuse its discretion by denying Smith’s motion, I respectfully
dissent. (I concur in that part of the opinion which affirms the conviction of
Smith’s codefendant Lacoya Washington.)
      As the majority notes, the magistrate judge told Smith, upon granting
his motion to proceed pro se: “You can’t just come in on the morning of trial
when a jury is sitting there and go, ‘I changed my mind, Judge . . . I decided I
can’t do it,’ because then we’ll think you’re doing it just for delay purposes.”
The district court, presented with this exact situation (in addition to a motion
for the judge to recuse that Smith had put together four days earlier),
reasonably determined that Smith was merely attempting to delay the orderly
administration of justice. It was not an abuse of discretion for the district
court, faced with these circumstances, to deny Smith’s motion.
      The majority cites Pollani for the proposition that a district court abuses
its discretion if it refuses a defendant’s last-minute motion to reassert his right
to counsel without a finding that it “would impede the orderly administration
of justice.” This is at best an overstatement. Pollani stated, in the full text of
the sentence, that “[t]he district judge did not state-and there is no reason to
think-that [retained counsel]’s appearance would impede the orderly
administration of justice.” United States v. Pollani, 146 F.3d 269, 273 (5th Cir.
1998) (emphasis added).
      Pollani is readily distinguishable from Smith’s case. Pollani reasserted
his right to counsel four days before trial, not on the morning of, and he
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                                  No. 17-30065
“unequivocally stated . . . that he wished to be represented at trial by [retained
counsel], even if the continuance was denied.” Pollani, 146 F.3d at 273. Smith
made no such statement. Indeed, he did not outright request that standby
counsel step in as trial counsel. Smith explained that he had written letters to
standby counsel in which he complained that he could not adequately
represent himself because the process was overwhelming. Further, the district
court did have “reason to think” that standby counsel’s appearance would
impede the orderly administration of justice. Although the district court did
not inquire whether standby counsel was ready to proceed immediately, the
court had reason to believe that standby counsel would need at least some
continuance in order to mount an effective defense.
      I also take issue with the majority’s opinion to the extent it purports to
read Pollani as requiring that the district court always state on the record
whether appointing new counsel or elevating standby counsel will impede the
orderly administration of justice. Pollani did not require as much, and we
should avoid imposing talismanic phrases on the district court when they are
not needed. I would affirm Smith’s convictions.




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