                                                          NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________
                                  No. 10-2748
                                 _____________

                      UNITED STATES OF AMERICA,
                                       v.
                            WYDOVE BROWN,
                                            Appellant.
                                 ______________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW JERSEY
                   (D.C. Crim. Action No. 2:09-cr-00257)
                 District Judge: Honorable William J. Martini
                               ______________

                  Submitted Under Third Circuit LAR 34.1(a)
                             September 22, 2011
                              ______________


      Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.


                      (Opinion Filed: December 8, 2011)
                                 ______________
                                    OPINION
                                 ______________

GREENAWAY, JR., Circuit Judge.

                                       1
       Appellant Wydove Brown (―Brown‖) was charged in a one-count Indictment with

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). He

was convicted by a jury. Brown appeals his conviction. For the reasons explained

below, we will affirm the District Court‘s Judgment.



                                    I. BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts.

       On November 12, 2008, two cars filled with police officers from the Newark

Police Department saw a group of men, including Brown, in a notorious open air drug

market. After seeing the police, the men dispersed, and Sergeant William Connolly

(―Connolly‖) observed Brown cross South 15th Street in Newark, NJ, while holding

something at his waistband. Concerned that Brown had a gun, the officers stopped their

cars, and Connolly instructed Brown to stop. According to the officers, Brown continued

walking and crouched down near a minivan, placing the gun on the ground near a tire.

Another officer heard the gun hit the ground and the officers apprehended Brown.

       As part of an omnibus motion, Brown moved to suppress the gun. In support of

the motion, he submitted a certification articulating a different set of facts leading to his

arrest. According to Brown, the police confronted him on the street, searched him for no

reason, and took his keys. His keys included the keys to a car that he had borrowed to


                                               2
drive to the area. He stated that the police opened the vehicle, searched it, and found a

gun inside the glove compartment.

       The District Court conducted a hearing on the various issues raised in Brown‘s

omnibus motion, but it did not resolve the suppression issue. During the hearing, the

parties disclosed that Brown‘s license was suspended at the time of his arrest, and the

parties did not contest that particular fact. The District Court accepted Brown‘s

articulation of the facts for the purpose of resolving the motion to suppress and denied the

motion. The Court held that Brown did not have a legitimate expectation of privacy in

the vehicle as an unlicensed driver and, therefore, lacked standing to challenge the search

of the vehicle. Brown filed a motion for reconsideration and requested a full evidentiary

hearing on the issue of standing. The District Court held the motion for reconsideration

in abeyance, deciding to wait until after it had heard all of the evidence presented at trial.

After hearing the evidence presented at trial, the District Court gave Brown an

opportunity to offer additional evidence on the motion to suppress. Defendant Brown did

not offer new evidence and the Court again found that Brown lacked standing.

       Brown‘s first trial ended in a mistrial. Before the start of the second trial, Brown

moved the Court to relieve his current lawyer from representing him and to have the

Court appoint new counsel. The Court denied his request. After hearing all of the

evidence in the second trial, defense counsel asked the Court to reopen the suppression

motion and consider it on its merits in light of the trial testimony. The Court ruled that it


                                              3
would not revisit its prior determination on standing because Brown did not present any

persuasive grounds for reopening the motion. The Court further reasoned that the

weighing of the evidence on the issue of suppression would yield the same result – the

police officers‘ testimony regarding recovery of the gun would stand. In the Court‘s

view, when comparing the officers‘ testimony to Defendant Brown‘s certification,

Brown‘s version of the facts was entirely incredible. Hence even if the Court determined

that Brown had standing, the Court would have allowed the gun and the accompanying

testimony into evidence.

       A second jury found Brown guilty of being a felon in possession of a gun. Brown

was sentenced to 120 months of imprisonment. Brown filed a timely appeal.



                                    II. JURISDICTION

       The District Court had subject matter jurisdiction over this criminal matter under

18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.



                                      III. ANALYSIS

       Brown raises five issues on appeal: (1) the District Court erred in permitting

Brown to be shackled during trial; (2) the District Court erred in failing to appoint Brown

substitute counsel; (3) the District Court erred in failing to hold a pre-trial hearing on

Brown‘s motion to suppress; (4) the District Court erred in denying Brown‘s motion to


                                               4
suppress; and (5) the District Court erred by permitting the Government to vouch for its

witnesses.

       A. Shackling

       Brown argues that the District Court impaired his right to counsel and his due

process rights by permitting him to be shackled during his trial without conducting a

proper inquiry or providing adequate justification. We review the district court‘s

decision to require a defendant to wear shackles for an abuse of discretion. Deck v.

Missouri, 544 U.S. 622, 629 (2005).

       In making a decision on the use of shackles, the trial court must make a

determination about whether an ―essential state interest‖ justifies shackling a particular

defendant during the case at bar. See Deck, 544 U.S. at 624 (―[T]he Constitution forbids

the use of visible shackles . . . . during the guilt phase, unless that use is ‗justified by an

essential state interest‘—such as the interest in courtroom security—specific to the

defendant on trial.‖) (internal citations omitted). A review of the record indicates that the

District Court conducted a specific inquiry and made specific findings regarding the use

of shackles on Brown. The District Court heard testimony from a United States Marshal

about Brown‘s history of assault and combative interactions with law enforcement;

including Brown‘s involvement in a recent assault inside the Essex County Jail. Defense

counsel then proffered information regarding the nature of Brown‘s prior convictions,

which included aggravated assault, burglary, robbery and distribution of controlled


                                                5
dangerous substances (―CDS‖). Appellant‘s counsel did not dispute the record or the

determination; and, he conceded, on the record, that the shackles would not affect

Brown‘s ability to confer with counsel.

       The District Court found that the evidence supported a decision to shackle

Brown‘s feet during the proceedings. Additionally, the District Court noted for the

record that the shackles were covered by a draping over defense counsel‘s table and thus

would not be visible to the jury. The Court also ensured that Appellant would be seated

at the witness stand before the jury entered the courtroom to further ensure no specter of

prejudice from seeing the shackles by the jury.

       We find that the District Court articulated specific findings relating to the

necessity of the shackles based on legitimate safety concerns. The District Court did not

abuse its discretion in requiring Brown to be shackled during trial.

       B. Request for Substitute Counsel

       Brown challenges the District Court‘s denial of his request to appoint new counsel

after his first trial. We review such challenges under an abuse of discretion standard.

United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995).

       When a defendant seeks to replace his attorney or proceed pro se on the eve of

trial, the District Court must inquire about the reason for a defendant‘s request for new

counsel and only grant such requests if the defendant shows ―good cause‖ for his

dissatisfaction with his attorney. Goldberg, 67 F.3d at 1098; see United States v. Welty,


                                              6
674 F.2d 185, 187-88 (3d Cir. 1982). We define ―good cause‖ as a ―conflict of interest, a

complete breakdown of communication, or an irreconcilable conflict with the attorney.‖

Welty, 674 F.2d at 188.1 In cases, such as this, where the district court denied the request

to substitute counsel and proceeded with the unwanted counsel, ―we will not find a Sixth

Amendment violation unless the district court‘s ‗good cause‘ determination was clearly

erroneous or the district court made no inquiry into the reason for the defendant‘s request

to substitute counsel.‖ Goldberg, 67 F.3d at 1098. Brown‘s assertions present no basis

for such findings.

       The District Court made an appropriate inquiry into Appellant‘s request for new

counsel. During a hearing on the morning of the second trial, the District Court

specifically asked Brown‘s counsel to provide more information on his client‘s request

for a new lawyer. Brown interjected to provide the reasoning himself, stating, ―I don‘t

want him to represent me no more, it‘s just that simple.‖ App. 81. Brown specifically

asserted that counsel was not making the arguments that he wanted him to make and that

counsel had not put certain evidence into the record as Brown had desired.




1
  We have also acknowledged that countervailing government interests are relevant in
the good cause analysis. Such interests include ― the efficient administration of criminal
justice, the accused‘s rights, including the opportunity to prepare a defense; the rights of
other defendants awaiting trial who may be prejudiced by a continuance‖ and whether the
request is made in bad faith or for the purpose of delaying the proceeding. Goldberg, 67
F.3d at 1098. Here, the District Court explicitly considered its schedule and the
significant delay that would result if it appointed new counsel.
                                             7
       After a brief recess to consult with his client, counsel indicated that there had been

a breakdown in communication ―in the sense that [Brown was] insistent that certain

things be done‖ and counsel did not ―think they [could] or should be done.‖ App. 86.

After listening to Brown‘s concerns, hearing arguments from the Government, and

observing defense counsel‘s performance up to that point in time, the Court concluded

that Brown had not shown good cause for seeking substitute counsel. The District Court

noted that Brown‘s reasons for requesting a substitution were based on differences in

strategy. The Court also noted that defense counsel had performed outstandingly during

Brown‘s first trial. It then directly addressed the source of the purported communication

breakdown by indicating that, moving forward, it would address any strategic requests

made by Brown in camera. Brown provided no evidence of a conflict of interest or an

irreconcilable conflict with his counsel. The District Court found that Brown failed to

provide good cause for substituting counsel, as required by this Court. See Goldberg, 67

F.3d at 1098.

       Appellant also asserts that the District Court erred by implying that he did not

have the right to proceed pro se, once it determined that a continuance was not warranted.

See Welty, 674 F.2d at 187 (―If the district court determines that the defendant is not

entitled to a continuance in order to engage new counsel, the defendant is then left with a

choice between continuing with his existing counsel or proceeding to trial pro se, thus

bringing into play the court‘s second stage of inquiry.‖). Appellant‘s claim is


                                              8
unsupported by the record. The District Court did not imply that Appellant could not

proceed pro se, but rather articulated its understanding that Brown did not feel ―capable

of representing himself pro se‖ based on the colloquy at the hearing. App. 92. When the

Court later made the statement, ―even if you had that option,‖ at no point did it say that

he did not have the option of proceeding pro se. Id. Rather the Court suggested that, in

its opinion, even if Brown could capably represent himself pro se, he was wise in opting

not to do so. Id.

       We find that the District Court conducted the proper inquiry and did not abuse its

discretion in denying Brown‘s motion to substitute his attorney. Further, the Court did

not imply that Brown lacked the option to proceed pro se, and therefore, committed no

error on that ground.

       C. Pretrial Hearing and Ruling on the Motion to Suppress

       Brown‘s arguments regarding the motion to suppress are two-fold. First, he

argues that the District Court erred by not holding a pretrial evidentiary hearing to

determine whether he had standing for his motion to suppress the firearm. Second, he

argues that the District Court erred in denying his motion to suppress.

       We review a denial of a hearing on a pretrial motion for an abuse of discretion.

See United States v. Hines, 628 F.3d 101, 104 (3d Cir. 2010). We ―review the district

court‘s denial of [a] motion to suppress for clear error as to the underlying facts, but

exercise plenary review as to its legality in light of the court‘s properly found facts.‖


                                              9
United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 2011) (quoting United States v.

Silveus, 542 F.3d 993, 999 (3d Cir. 2008) (alteration in original)).

       Evidentiary hearings are not required for pretrial motions as a matter of course.

See Fed. R. Crim. P. 12(c). However, a defendant is entitled to a hearing for a motion to

suppress if the motion presents ―a colorable constitutional claim‖ and ―there are disputed

issues of material fact that will affect the outcome of the motion to suppress.‖ Hines, 628

F.3d at 105 (citing United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996)); see Fed. R.

Civ. P. 56(a) (reflecting 2010 amendment restating the summary judgment standard as

one regarding a ―genuine dispute as to any material fact‖ as opposed to prior language

referencing a genuine ―issue‖). The District Court stated that it would consider whether

Brown had standing to challenge the search, and if so, whether there was enough of a

factual dispute, based on his certification, to conduct a hearing. The District Court

concluded that Brown lacked standing because he did not have a legitimate expectation

of privacy in the vehicle as an unlicensed driver and denied his motion to suppress

without a pretrial hearing. See United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010)

(―[T]he proponent of a motion to suppress bears the burden of proving not only that the

search . . . was illegal, but also that he had a legitimate expectation of privacy in the place

searched.‖) (internal quotations, alterations and citations omitted).

       Brown moved for reconsideration, and the Court agreed to revisit the suppression

issue after the Government presented its case in chief at trial. At the end of the first trial,


                                              10
the Court again denied the motion to suppress for lack of standing. After both parties

presented their evidence in the second trial, defense counsel asked the Court to reopen the

suppression hearing and consider the motion on its merits. Equipped with the same

witness testimony that would have been presented in a pretrial hearing, the District Court

rejected Brown‘s request. In doing so, it recounted Brown‘s version of the facts and the

evidence presented in support of Brown‘s motion and found his testimony to be

incredible. The Court then stated that even if it had reopened the motion to suppress, it

would most certainly deny the motion because the testimony proffered by the defense

was not credible. 2

       While we believe that such critical factual determinations should be resolved in a

pretrial hearing, any ―error‖ arising from its failure to hold such hearing is harmless.

Voigt, 89 F.3d at 1068. The Court‘s resolution of the suppression issue turned on its

assessment of the officers‘ and Brown‘s testimony. The trial testimony and

corresponding motion filings by the parties provided the Court with a sufficient record

against which it could measure Brown‘s claims. See id. After doing so, it carefully

considered the evidence and articulated its findings based on the facts. Thus, the District

Court did not abuse its discretion by not holding a pretrial hearing on Brown‘s motion to

suppress.

2
 Mr. Sales (apprehended by the same group of police on the night of Brown‘s arrest) and
Ms. Rhonda Blanks (the owner of the car) provided testimony supporting Brown‘s
articulation of the facts. The Court considered their testimony and reasonably found that
both of them lacked credibility.
                                             11
       Brown also challenges the District Court‘s November 6, 2009 Order denying his

motion to suppress. The District Court‘s legal conclusion that an authorized, unlicensed

driver lacks standing to challenge the search of a vehicle causes some concern for this

Court. However, we need not assess this legal conclusion to determine whether the

District Court erred in this case. The District Court‘s pretrial Order denied the motion on

standing grounds without reaching the underlying factual disputes. In addressing the

suppression issue at trial, the Court clearly articulated that it was refusing to reopen the

motion based on its substantive determination that Brown‘s testimony and the evidence

he would have presented lacked credibility.

       We do not lend our imprimatur to the District Court‘s legal conclusion that Brown

had no reasonable expectation of privacy in the vehicle because he was an unlicensed

driver.3 We will, however, affirm the District Court‘s substantive denial of Brown‘s

motion to suppress as we find no clear error in its credibility determinations or factual

findings.

       D. Vouching

       Finally, Brown alleges that the District Court erred in allowing the prosecution to

vouch for the credibility of its witnesses during trial. Specifically, Brown asserts that the

prosecutor vouched for Sergeant Connolly and Officer Nevels during their respective


3
  The District Court‘s conclusion was based on jurisprudence addressing rental cars. See
United States v. Haywood, 324 F.3d 514, 516 (7th Cir. 2003). This case does not address
rental cars, and we need not opine on whether such an analogy is apposite here.
                                              12
redirect examinations by asking, ―in the times that we have met to prepare for this case,

what was the number one rule we always instructed you to do?‖ App. 121, 122-23. In

both instances, the Appellant objected to the question and the District Court overruled the

objections, permitting the officers to answer. 4 We review the District Court‘s ruling on

such contemporaneous objections for abuse of discretion. United States v. Brennan, 326

F.3d 176, 182 (3d Cir. 2003).

       Our Court defines vouching as ―an assurance by the prosecuting attorney of the

credibility of a Government witness through personal knowledge or by other information

outside of the testimony before the jury.‖ United States v. Walker, 155 F.3d 180, 184 (3d

Cir. 1998). A review of the record indicates that the prosecutor made no such assurance.

Rather, he asked the witnesses about his instruction for them to tell the truth while

testifying because Appellant‘s theory of the case and cross-examination called their

credibility into question. We have previously stated that ―where a prosecutor argues that

a witness is being truthful based on the testimony given at trial, and does not assure the

jury [of] the credibility of the witness based on his own personal knowledge, the

prosecutor is engaging in proper argument and is not vouching.‖ Id. at 187. The content

of the redirect examination, on its face, shows that the Prosecutor never assured the jury

of either witnesses‘ credibility, let alone did so based on his personal knowledge. In light

of these facts, we find that the Prosecutor did not vouch for Sergeant Connolly and

4
 In response to this question, Sergeant Connolly replied, ―[t]ell the truth‖ (App. 121) and
Officer Nevels answered, ―[t]o be honest‖ (App. 122-23).
                                             13
Officer Nevels and that the District Court did not abuse its discretion in allowing the

testimony.



                                   IV. CONCLUSION

       We find that the District Court did not abuse its discretion regarding the following

issues: allowing Appellant to be shackled during the trial; not appointing Brown

substitute counsel; not conducting a pretrial hearing on the issue of standing for

Appellant‘s motion to suppress and its subsequent denial of the motion; and determining

that the Government did not vouch for its witnesses in its redirect examinations. We will

affirm the District Court‘s Judgment.




                                             14
