                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 11a0862n.06
                                                                                          FILED
                                           No. 10-1810                               Dec 20, 2011
                                                                               LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


United States of America,                          )
                                                   )    ON APPEAL FROM THE UNITED
       Plaintiff-Appellee,                         )    STATES DISTRICT COURT FOR THE
                                                   )    WESTERN DISTRICT OF MICHIGAN
v.                                                 )
                                                   )
Chadrick Jemail Griffin,                           )
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )



BEFORE:        Merritt, Clay, and Sutton, Circuit Judges.

       MERRITT, Circuit Judge. Defendant Chadrick Griffin was arrested in Grand Rapids,

Michigan, and charged with one count of being a felon in possession of a firearm and three counts

of intent to distribute narcotics. He was subsequently convicted by a jury of the firearm charge and

one of the drug charges and acquitted of the other two drug charges. He now appeals his conviction,

contending that the district court erred by (1) denying his request for new counsel on the morning

of the first day of trial and in denying his request for a continuance to obtain new counsel; (2)

permitting reference by a witness to his parole status in front of the jury; and (3) allowing his

conviction for being a felon in possession of a firearm to stand because the felon-in-possession

statute violates his Second Amendment right to bear arms. After review of the record below, we find

no reversible error and affirm the judgment of the district court.
No. 10-1810
United States v. Griffin

                                                  I.

       Defendant was arrested in the parking lot of “Michigan Works!”, an employment office in

Grand Rapids, Michigan, after police heard a broadcast over the police car radio that there was a

white Pontiac G6 in the parking lot with a gun in it. The broadcast was issued after police dispatch

received a 911 call saying someone had a gun in a white Pontiac G6 in the Michigan Works parking

lot. Officers Gomez and Myers responded, finding a female in the driver’s seat of a car matching

that description. The officers saw a bullet or a cartridge on the floor of the car on the passenger’s

side and ordered the woman, Tyana Tyler, an ex-girlfriend of defendant’s and the mother of one of

his children, out of the car. Police found a plastic baggie containing about .57 grams of heroin after

seeing a piece of plastic bag sticking out from a crack in the driver’s seat. Ms. Tyler admitted to

ownership of the car, but claimed to know nothing of the drugs. She consented to a search of the car,

which later turned up a baggie containing 1.41 grams of cocaine in the trunk. Ms. Tyler informed

the officers that the defendant had just exited the vehicle with her 8-year-old son and they had

walked across the street to a Speedway gas station. Another officer, Officer Moe, found the

defendant nearby with the boy. After reuniting with the other officers, the child showed Officer

Myers a trash can where he claimed that the defendant had just thrown something away. Officer

Moe found part of a baggie in the trash can. The child also told officers that he had witnessed

defendant put something under the driver’s side car seat and that the defendant had opened Ms.

Tyler’s car trunk while she was in a store.

       Police then proceeded to the house of defendant’s sister, where defendant had been staying

in one of her bedrooms. The sister allowed officers to search defendant’s bedroom where they found

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United States v. Griffin

a Glock 21 handgun below the bottom drawer of the dresser, ammunition for the handgun and two

“rocks” of crack cocaine in defendant’s wallet, which was in a pair of pants. Defendant did not have

any drugs or a firearm on him when arrested.

       Defendant was indicted on four counts: Count one charged him with being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e), and Counts two, three and

four charged him with intent to distribute narcotics, specifically heroin and crack cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Defendant sought and was appointed counsel

and proceeded to trial. The jury convicted Griffin of the firearm charge (Count one) and the

possession of crack cocaine with intent to distribute (Count two), the two counts where the

government had introduced DNA evidence tying defendant to the contraband. Defendant was

acquitted of the two drug charges where no DNA match to defendant was found. Other facts relating

to defendant’s appeal issues will be related as needed.

                                                  II.

                           Defendant’s Request to Obtain New Counsel

A. Motion for Continuance to Obtain New Counsel

       A court-appointed attorney, Jeffrey O’Hara, was appointed to represent defendant in January

2010, after the federal charges were filed. At that time, defendant neither requested nor claimed that

he could afford retained counsel. On the morning of the first day of trial, the court session began out

of the presence of the jury pool. The district judge began by ruling on several recently-filed motions.

Defense counsel then indicated that his client wished to address the court. The exchange between

Griffin and the judge went as follows:

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United States v. Griffin

       DEFENDANT GRIFFIN: Your Honor, I would like to ask the Court if I can have
       this trial date postponed to get a different attorney because my attorney is not fighting
       for my life the best in my interests, [sic] and I’ve been misleaded [sic] and I just feel
       that my lawyer has not been counseling me right, Your Honor.

       THE COURT: Specifically what?

       DEFENDANT GRIFFIN: Several reasons, Your Honor. there’s been a lot of – this
       has been like arguing. We ain’t never talked about nothing positive about my case.
       He just trying to get me to plead guilty, telling me I’m not gonna win my trial. It’s
       been a lot of other – more stuff than just that.

       THE COURT: Well, you’re having a trial. You’re not pleading guilty. You’ve
       entered a not guilty plea. . . . I don’t think the rest of those discussions are relevant.
       He has an obligation, whether you realize it or not, to discuss with you any offers the
       government makes to compromise this matter by a plea. If he doesn’t tell you about
       it . . . and if he doesn’t explain that to you, then he has failed his professional
       responsibility. . . . If he doesn’t make a recommendation to you one way or another,
       he has failed his professional responsibilities.

Trial Tr. Vol. I, pp. 7-8. The district court judge goes on to explain to defendant that his counsel,

Mr. O’Hara, prepared very well for the trial and filed many documents in anticipation of trial and

that he “is one of the best court-appointed lawyers I can possibly give you. I have seen nothing that

he has done that has in any way evidenced the fact that he can’t fairly and rigorously and

professionally represent you.” Trial Tr. Vol. I, p. 9. The discussion continues:

       DEFENDANT GRIFFIN: Yes, Your Honor, I understand that. And, Your Honor, I
       just would like to say that I feel that the only way I’m gonna have a fair trial is if all
       the evidence is in, and from what I was seeing last week, that all the evidence was not
       gonna be into court.1



       1
         This reference concerns the admission of the 911 tape received by the Grand Rapids police
dispatch about a gun in a car that sent the officers to the Michigan Works! location where defendant
was arrested. Although the district court initially ruled that the tape was not admissible, the tape was
in fact admitted over the government’s objection and played for the jury.

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No. 10-1810
United States v. Griffin

        THE COURT: You’re not a lawyer. . . he’s a lawyer. He represents people such as
        yourself on a regular basis . . [i]n this court, in federal court. . . And I’ve never seen
        him not do his very best, and so I think you and your family can relax on this one.
        Not relax, but what I mean is you need not be concerned. . . . You have to understand
        that your lawyer has to present to you the good, the bad, and the ugly. [The judge
        continues to explain to defendant that he would not want a lawyer who tells him what
        he wants to hear, he wants a lawyer to tell him the truth.]

        DEFENDANT GRIFFIN: Yes, sir, Your Honor. But to tell me I’m not gonna even
        win my trial?

        THE COURT: You know, again, I don’t know what he has told you and I don’t
        know the context he told you and I don’t want to interfere with that. But what I’m
        telling you is you are entitled to an honest appraisal from him of what he believes the
        evidence might show. I’d rather have him tell you that than have him say, Mr.
        Griffin, all we have to do is to appear here and I’ll knock the stuffing out of the U.S.
        Attorney and all the witnesses and we’ll just walk out of here and the sunshine will
        be out and it will be just wonderful. . . .If you told me that he said that to you, I would
        say you need a new lawyer. . . . Okay, I don’t see any reason for us to – you’re not
        paying for him. He’s being provided for you at public expense, and when you were
        charged and the CJA panel person who evaluated this matter appointed Mr. O’Hara,
        they did that with the knowledge that you were getting one of the best lawyers we
        have here in West Michigan. . . .

        DEFENDANT GRIFFIN: So there’s no way I can get a different attorney?

        THE COURT: No. I mean, you haven’t written to me. I never heard about this until
        you just got up right now.

        DEFENDANT GRIFFIN: Yes, sir, your Honor. I didn’t know that this was going
        to trial at this time, Your Honor.

        THE COURT: Right. Didn’t we have a pretrial here about 10 days ago?

        DEFENDANT GRIFFIN: A week ago, last week.

        THE COURT: Okay, a week ago. Did you tell me anything at that time?

        DEFENDANT GRIFFIN: No, sir.

Trial Tr. Vol. I, pp. 9-12.

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No. 10-1810
United States v. Griffin

       On appeal, Griffin argues that he was denied his right to retain counsel of his choice when

the district court denied his motion for a continuance so that he could get a new lawyer. There are

two distinct, yet related, complaints presented by defendant: the denial of a continuance so that he

could retain new counsel and the denial of his right to counsel of choice, a Sixth Amendment

violation. The dialogue between the defendant and the district court answers defendant’s argument.

       The request for a continuance to seek new counsel was not presented to the district court until

the morning of the first day of trial. The court had held a pretrial conference the week before, with

defendant in attendance, and there had been no objection to the quality of Mr. O’Hara’s

representation at that time. There is nothing in the record prior to March 15, 2010, indicating that

there was any problem at all between Mr. O’Hara and the defendant. There is no dispute that

defendant knew the date of trial. He conceded the fact to the district court when he acknowledged

that he was at the pretrial hearing the week before the trial began. In addition, the trial would likely

have been unduly delayed had the request been granted because defendant gave no indication when

questioned by the district court that he had a retained attorney waiting in the wings to step in

immediately and the record does not otherwise indicate that this was the case.

       The district court questioned defendant at length as to why he wanted a new attorney.

Defendant told the court he was in disagreement with his counsel because his counsel wanted him

to enter a plea instead of go to trial. The district court correctly pointed out that appointed defense

counsel was simply doing his job in making clear to defendant the weaknesses in his case. Based

on this information, the district court reasonably concluded that defendant was being provided with

effective representation by his appointed counsel and that defendant’s ability to receive a fair trial

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No. 10-1810
United States v. Griffin

was not prejudiced by remaining with his current court-appointed counsel. The case did go to trial,

as defendant wished, and, in hindsight, his counsel represented him well, achieving acquittals on two

of the four counts and managing to get the district court to reverse its ruling on admissibility of the

911 tape to allow it in, one of the primary points of disagreement mentioned by defendant in his

exchange with the court the morning of trial.

        Despite the fact that the defendant says in his appellate briefs that the district court did not

understand that defendant was seeking a continuance to obtain retained counsel to replace his court-

appointed counsel, he never said that to the district court. Defendant was given ample opportunity

by the district court to speak and he never mentioned wanting to retain his own counsel. Nor had

any attorney filed an appearance or made a motion for substitution of counsel. It was the morning

of the first day of trial and it was the first time the defendant had let the court know that he was

unhappy with his attorney. Accordingly, given the timing of the motion in this case and the lack of

any evidence of a material conflict between defendant and his court-appointed counsel, we conclude

the district court did not abuse its discretion in refusing to delay the trial. See United States v. Lewis,

605 F.3d 395, 401 (6th Cir. 2010).

B. Sixth Amendment Right to Counsel of Choice

        Defendant also argues that the denial of his motion for a continuance to substitute retained

counsel for his court-appointed lawyer violated his Sixth Amendment right to counsel of choice.

The amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right .

. . to have the Assistance of Counsel for his defence,” and the Supreme Court has concluded that

language encompasses a defendant’s right to “choose who will represent him.” United States v.

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No. 10-1810
United States v. Griffin

Gonzalez-Lopez, 548 U.S. 140, 144 (2006). We are guided by the common-sense principle that the

right is “not absolute,” and it “does not give an accused the power to manipulate his choice of

counsel to delay the orderly progress of his case.” United States v. Robinson, 20 F.3d 270, 275 (7th

Cir. 1994) (citations omitted).

       As explained above, the conflict between defendant and his court-appointed counsel stemmed

primarily from counsel’s failure to paint a rosy picture of defendant’s chances for full exoneration

at trial. As the district court told defendant, counsel – whether appointed or retained – had an

obligation to advise him truthfully . The fact that defendant’s lawyer did not tell him what he wanted

to hear about his chances of success does not qualify as the type of serious conflict that results in a

total lack of communication preventing an adequate defense. Given the delay that would have likely

resulted, defendant did not demonstrate good cause to obtain retained counsel.

                                                  II.

                 Testimony Revealing to Jury that Defendant Was on Parole

       The defendant next argues that his right to a fair trial was compromised when his status as

a current parolee was revealed to the jury through a police officer testifying for the government. He

argues that the reference was unfairly prejudicial and, therefore, inadmissible under Federal Rules

of Evidence 403. The reference to his parole status was heard by the jury when Officer Myers

testified that due to defendant’s status as a parolee, a warrant to search defendant’s room was not

necessary, thereby allowing the officers to go directly from the Michigan Works! parking lot to

Griffin’s sister’s house. Trial Tr. Vol. 1, pp. 116-17.



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No. 10-1810
United States v. Griffin

        The jury was already well aware that the defendant had a felony conviction because Griffin

was being prosecuted under 18 U.S.C. § 922(g)(1), which prohibits convicted felons from possessing

firearms. Griffin stipulated to his status as a convicted felon and that stipulation was read to the jury.

“[W]here the government is required to prove as an element of the offense that the defendant has

previously committed a felony, as in a [felon-in-possession] prosecution, the potential for prejudice

[from the jury hearing evidence of parole status] is substantially lessened.” United States v. Griffin,

389 F.3d 1100, 1103-04 (10th Cir. 2004).

        In addition, the error that resulted from the jury hearing about defendant’s parole status was

harmless. See Chapman v. California, 386 U.S. 18, 24 (1967). The evidence of guilt was

overwhelming. Defendant’s DNA was found on both the firearm and the baggie containing the

cocaine recovered from Tyana Tyler’s trunk. The gun was found in defendant’s bedroom, a room

that also contained his wallet and other identification and personal items. His sister testified that the

gun did not belong to her and that defendant was the only other occupant of the home and that

defendant’s bedroom was not used by anyone else. As for the cocaine, in addition to the DNA

evidence, it was retrieved from the trunk of a car in which defendant had been recently riding and

a witness testified that he saw defendant put something in the trunk shortly before it was found by

police. The cocaine was also packaged similarly to the cocaine found in defendant’s wallet in his

bedroom. Even without the improper statement by Officer Myers about defendant’s parole status,

the proof of defendant’s guilt on the gun and cocaine charges is overwhelming.

C. The Constitutionality of the Federal Statute Prohibiting Felons from Possessing Firearms



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No. 10-1810
United States v. Griffin

       Defendant concedes that we have previously held that prohibitions on the possession of

firearms by felons do not violate the Second Amendment. United States v. Carey, 602 F.3d 738, 741

(6th Cir. 2010) (citing Dist. of Columbia v. Heller, 554 U.S. 570, 626-27 (2008)). Defendant’s

citation to McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), does not impact our holding in

Carey. The petitioners challenging Chicago’s gun control laws were not convicted felons.

       For the foregoing reasons, we affirm the judgment of the district court.




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