10-1773-cr
United States v. Roy

                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT

                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of November, two thousand eleven.

PRESENT:    AMALYA L. KEARSE,
            PIERRE N. LEVAL,
            DENNY CHIN,
                           Circuit Judges.

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UNITED STATES OF AMERICA,
          Appellee,

            -v.-                                      10-1773-cr

JOHN D. ROY,
          Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:            ROBERT J. BOYLE, New York,
                                    New York.
FOR APPELLEE:                BRIAN P. LEAMING, Assistant United
                             States Attorney (Sandra S. Glover,
                             Assistant United States Attorney,
                             on the brief), for David B. Fein,
                             United States Attorney for the
                             District of Connecticut, Hartford,
                             Connecticut.

          Appeal from the United States District Court for the

District of Connecticut (Burns, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED

in part, the sentence is VACATED, and the case is REMANDED for

a Faretta inquiry and for re-sentencing.
          Defendant-appellant John D. Roy appeals from a judgment

of conviction entered on April 16, 2010, following a jury trial.

Roy was convicted of possession of firearms and ammunition by a

convicted felon and possession with intent to distribute 100 or

more marijuana plants, in violation of 18 U.S.C. § 922(g)(1) and

21 U.S.C. §§ 841(a)(1) and (b)(1)(B), respectively.   On April 14,

2010, the district court sentenced Roy principally to a total of

300 months' imprisonment for both offenses.    We assume the

parties' familiarity with the facts and procedural history, which

we reference only as necessary to explain our decision.

          Roy raises four grounds on appeal.   He argues that the

district court: (1) violated his right under the Confrontation

Clause by admitting an adverse witness' hearsay testimony; (2)

abused its discretion by failing to grant a mistrial when the

government, on cross-examination, posed an allegedly improper

question; (3) abused its discretion by failing to grant Roy a new

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trial when the government allegedly suppressed exculpatory

evidence; and (4) failed to ensure that Roy's waiver of counsel

and decision to proceed pro se were knowing and voluntary.      Each

issue is discussed in turn.

(1)   Detective Warner's Testimony

           On September 16, 2008, Detective William J. Warner of

the City of Middletown Police Department testified before the

jury.   The government asked Warner the following question: "Could

you tell us, Detective, what was the general nature of the

investigation as it was conveyed to you on March 9th of 2007?"

Warner responded: "As it was conveyed to me, an individual had

come forward and indicated that a John Roy living at 60 Church

Street might be in possession of numerous handguns and assault-

type weapons."   On appeal, Roy argues that Warner's in-court

reference to a non-testifying witness -- the "individual" --

constitutes hearsay and was admitted by the district court in

violation of the Confrontation Clause.

           Roy concedes that he did not object to Warner's

testimony at trial and that his present argument must therefore

be analyzed under the plain-error standard.   See Fed. R. Crim. P.

52(b); see generally Puckett v. United States, 129 S. Ct. 1423,
1428 (2009) ("No procedural principle is more familiar to this

Court than that a . . . right may be forfeited in criminal as

well as civil cases by the failure to make timely assertion of

the right before a tribunal having jurisdiction to determine

it.") (internal quotation marks omitted).   Under the plain-error

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standard, "before an appellate court can correct an error not

raised at trial, there must be," inter alia, "(1) 'error,' (2)

that is 'plain,' and (3) that 'affect[s] substantial rights.'"

Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)).     To

"'affec[t]' the appellant's 'substantial rights,'" ordinarily the

"error must be 'prejudicial,' which means that there must be a

reasonable probability that the error affected the outcome of the

trial," United States v. Marcus, 130 S. Ct. 2159, 2164 (2010)

(quoting Olano, 507 U.S. at 734-35), i.e., "a reasonable
probability that, but for [the error claimed], the result of the

proceeding would have been different," United States v. Dominguez

Benitez, 542 U.S. 74, 81-82 (2004) (internal quotation marks

omitted).

            We conclude that Roy has not met the plain-error test.
Hearsay is defined as "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted."    Fed. R.
Evid. 801(c).    Although the admission of a statement that is
hearsay may violate a defendant's Confrontation Clause rights,
see Crawford v. Washington, 541 U.S. 36, 61 (2004) (Confrontation
Clause focuses on, inter alia, "testimonial statements" of
nontestifying declarant), the Confrontation Clause "does not bar
the use of testimonial statements for purposes other than
establishing the truth of the matter asserted," id. at 59 n.9.
            Out-of-court statements not offered for the truth of


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the matter asserted may be admissible as background evidence to
"furnish an explanation of the understanding or intent with which
certain acts were performed."    United States v. Reifler, 446 F.3d
65, 92 (2d Cir. 2006) (internal quotation marks omitted).
Background evidence can also "constitute appropriate rebuttal to
initiatives launched by the defendant."    United States v. Reyes,
18 F.3d 65, 70 (2d Cir. 1994).     However, such evidence should be
excluded if "its probative value [in its permitted evidentiary
use] is substantially outweighed by the danger of unfair
prejudice . . . resulting from the impermissible hearsay use of
the declarant's statement."    United States v. Johnson, 529 F.3d
493, 500 (2d Cir. 2008) (internal quotation marks omitted).
"[T]he mere identification of a relevant non-hearsay use of such
evidence is insufficient to justify its admission if the jury is
likely to consider the statement for the truth of what was stated
with significant resultant prejudice."    Reyes, 18 F.3d at 70; see
Fed. R. Evid. 403.
          In the present case, Warner's testimony did not
constitute hearsay, and the district court did not commit any
Confrontation Clause or evidentiary error, much less plain error,
in admitting it at trial.     Warner's testimony that an
"individual" had stated that Roy "might" have numerous weapons in
his house was not offered to prove the truth of that informant's
assertion; rather, it was offered to show that the statement was
made and to provide background information explaining the impetus
for and the sequence of the investigation.     The fact that the
informant made the statement was relevant in light of Roy's


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assertions prior to and during trial that the police had framed
him and manipulated evidence.    The probative value of this
background evidence outweighed any prejudice to Roy, and
therefore the admission of the testimony for its non-hearsay use
was appropriate.   See Reyes, 18 F.3d at 70.
            Moreover, even if the informant's statement that Roy
"might" have numerous weapons in his house had been offered for
its truth, the statement had little significance in light of the
first-hand evidence at trial, which included testimony from
friends of Roy who had observed him possess and use firearms and
the testimony of several law enforcement witnesses that the
search of Roy's bedroom at 60 Church Street recovered numerous
firearms.   Thus, Roy cannot show that Warner's testimony as to
the informant's statement had any effect on his substantial
rights.   Accordingly, his Confrontation Clause claim fails.
(2)   The Government's Question on Cross-Examination
            Roy took the stand in his own defense.      On cross-

examination, the government asked him whether he had been
involved in the sale of cocaine.        The government's question arose
amidst inquiry regarding Sam Ortiz, a third party who had been
mentioned during Roy's direct examination.        The government asked

Roy: "Isn't it true that Sam Ortiz probably worked for you
selling cocaine and marijuana?"     The district court had

previously precluded testimony regarding cocaine evidence seized
at 60 Church Street.    Roy argues that the government's question

warranted a mistrial.

            Generally, "[i]nappropriate prosecutorial comments,


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standing alone, would not justify a reviewing court to reverse a
criminal conviction obtained in an otherwise fair proceeding."
United States v. Young, 470 U.S. 1, 11-12 (1985).      To warrant
reversal, prosecutorial misconduct must cause the defendant such
substantial prejudice as to deny the defendant due process.
United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005).       We
review the district court's denial of a motion for mistrial for
abuse of discretion.   United States v. Smith, 426 F.3d 567, 571
(2d Cir. 2005).
           Here, while the district court sustained Roy's

objection to the government's question, it is not at all clear

that the question was improper.     Roy had volunteered that

chemicals found by the police at his residence were not related

to drugs, but were used only in making figurines that he sold on

eBay.   The search of the premises, however, had uncovered

cocaine, a digital scale, and a cocaine cutting agent.     Hence,

the government reasonably believed that the chemicals were for

use in processing cocaine and that Roy had opened the door to

such inquiry by his volunteered, self-serving, false, innocent

explanation.   In any event, the prejudicial effect, if any, of

the government's question was immediately remedied when the

district court struck the question from the record and instructed

the jury to disregard the government's question.      In the



circumstances here, the government's question could not have

affected the outcome of the trial.      A mistrial was not warranted.

(3)   The Government's Alleged Brady Violation

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             Roy asserts that the government withheld exculpatory

crime scene photos, in violation of Brady v. Maryland, 373 U.S.

83 (1963), thus warranting a new trial.

             Under Brady, due process requires that the prosecution

disclose evidence favorable and material to the defendant's case.

Id. at 87.    A Brady violation is established where the non-

disclosure was so serious that there is a reasonable probability

that the suppressed evidence would have produced a different

result.   Strickler v. Greene, 527 U.S. 263, 281 (1999).   In

reviewing the district court's Brady determination, we "will not

disturb the district court's findings of fact in conjunction with

a [motion for new trial] unless the findings are clearly

erroneous."    United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.

1992).

             Here, the district court's finding that the government

did not suppress exculpatory evidence was not clearly erroneous.

The record, as the district court found, does not demonstrate

that the prosecution suppressed exculpatory evidence; rather, the

record supports the district court's conclusion that Roy was

provided the evidence in question before trial.     The district

court's denial of a new trial on this ground was proper.

(4)   Roy's Waiver of the Assistance of Counsel

             After trial and before sentencing, the district court

granted Roy's motion to waive counsel and proceed pro se.

Roy argues that the district court denied his Sixth Amendment

right to counsel by neglecting to determine that his waiver of


                                  -8-
counsel was knowing and voluntary.     The government concedes that

a more thorough inquiry was required and that this case should be

remanded to ensure that Roy understood the ramifications of his

waiver of counsel.

           Under Faretta v. California, 422 U.S. 806 (1975), a

waiver of the assistance of counsel must be made intelligently

and knowingly, with full awareness of the consequences of such a

waiver.   Id. at 827-28, 835.   "[T]he district court should engage

the defendant in an on-the-record discussion to ensure that [he]

fully understands the ramifications of [his] decision."    Torres
v. United States, 140 F.3d 392, 401 (2d Cir. 1998).     To establish

a valid waiver of counsel, a district court must have considered

the following factors: (1) whether the defendant understood that

he had a choice between proceeding pro se and with assigned

counsel; (2) whether he understood the advantages of having one

trained in the law to represent him; and (3) whether the

defendant had the capacity to make an intelligent choice.    United

States v. Calabro, 467 F.2d 973, 985 (2d Cir. 1972).     We review
this claim de novo.   See United States v. Carmenate, 544 F.3d

105, 107 (2d Cir. 2008).

           Here, the district court did not conduct a Faretta

inquiry to ensure that Roy's decision to waive counsel and

proceed pro se was knowing and voluntary.     Roy submitted two

motions to remove his defense counsel and one motion to proceed

pro se.   After granting Roy's motion to proceed pro se without a

hearing, the district court, at the following proceeding, merely

asked Roy if he had filed a motion to represent himself, and then

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asked trial counsel to stand-by in case Roy had questions.      The

exchange was insufficient under Faretta.   Accordingly, we remand

for a Faretta inquiry and for re-sentencing.
                            Conclusion

          We have considered Roy's other arguments and conclude

they are without merit.   Accordingly, the judgment of the

district court is AFFIRMED in part, the sentence is VACATED, and

the case is REMANDED for re-sentencing.

                               FOR THE COURT:
                               CATHERINE O'HAGAN WOLFE, CLERK




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