                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1445
                         ___________________________

                              United States of America

                                 Plaintiff - Appellee

                                          v.

                                  Kelvin Williams

                               Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                              Submitted: June 13, 2019
                              Filed: February 27, 2020
                                   ____________

Before GRUENDER, STRAS, and KOBES, Circuit Judges.
                          ____________

KOBES, Circuit Judge.

      The district court1 convicted Kelvin Williams of one count of felon in
possession of a firearm, two counts of possession with intent to distribute cocaine and

      1
        The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri, adopting the report and recommendations of the Honorable
Noelle C. Collins, United States Magistrate Judge for the Eastern District of Missouri.
marijuana, one count of maintaining a premise for the purpose of distributing a
controlled substance, and one count of possessing a firearm in furtherance of a drug
trafficking crime. 18 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D) & 924(c)(1)(A);
21 U.S.C. § 856. On appeal, Williams alleges that the district court erred by:
(1) admitting evidence seized after a warrantless protective sweep, (2) failing to
permit Williams to represent himself at trial, (3) accepting his waiver of his right to
a jury trial, and (4) failing to grant a motion to dismiss his indictment for a Brady
violation. Finding no error, we affirm.

                                           I.

       On June 16, 2015, St. Louis Metropolitan Police officers responded to a
911 emergency call reporting a burglary at 4118 Shreve Avenue. While a home
security siren sounded, law enforcement approached the front door with guns drawn.
The officers observed broken windows on the main and storm doors. There was
blood on the porch floor and on a window shade stuck through the broken glass. The
door had footprints on it and was ajar. Rather than forcing the door further, an officer
reached through the broken window, unlocked the deadbolt, and opened the door.

       Police entered the home and began a protective sweep to look for intruders or
victims. The bedroom on the main floor had been ransacked: the bed was
overturned, a dresser blocked a door, and items (including a firearm) were strewn all
over the floor. As they attempted to reach the blocked door, officers stepped on loose
papers, suspected drugs, and drug paraphernalia. Officers saw more drugs, scales,
test tubes, pills, rubber bands, baggies, and another firearm when they moved the
dresser to unblock the door. In the basement, an officer seized a bag with white
powder visibly hanging out of a hole in the wall.

      During the protective sweep, the officers also saw a Night Owl DVR System
(Security DVR) near the television in the living room. There were wires running
from the Security DVR to video cameras installed on the interior and exterior of the
home, including one aimed at the front door. Finding no one in the house, the

                                          -2-
officers contacted detectives to join them at the scene. Officers collected and seized
the drugs, firearms, and paraphernalia they found plus a cell phone and documents
showing Williams’s name and address. The detectives also unplugged and seized the
Security DVR.

        Three days later, investigators obtained a warrant to search the contents of the
cell phone, the Security DVR, and a safety deposit box listed on the documents seized
from the house. The Security DVR was kept in a sealed bag in an officer’s locker
until it was given to the Cyber Crimes Unit. A search of the Security DVR revealed
more than 41,000 video clips recorded over three months, including some of Williams
carrying a firearm and buying, bagging, cutting, weighing, and selling narcotics
inside the house.

       Although the Security DVR showed the suspected burglars stepping up to the
front door, it did not show them inside the house. Also, footage shows that police
went beyond the scope of a protective sweep by opening kitchen cabinets and a
microwave. They also turned on the television and waved at the security camera in
the living room.

                                          II.

       Williams argues that the district court erred in denying his motion to suppress
the evidence seized from his home because once police “completed their search and
found no burglars or victims,” the “Fourth Amendment required them to leave.”
Williams’s Br. 36. He agrees that exigent “circumstances justified the police
intrusion into his home to conduct a sweep for criminals or crime victims” and
“police were entitled to take evidence found in plain view with them.” Id.

       When a district court denies a motion to suppress, we review factual findings
for clear error and questions of law de novo. United States v. Hollins, 685 F.3d 703,
705 (8th Cir. 2012). “We will affirm the denial of a suppression motion unless we



                                          -3-
find that the decision is unsupported by the evidence, based on an erroneous view of
the law, or the Court is left with a firm conviction that a mistake has been made.”
United States v. Riley, 684 F.3d 758, 762 (8th Cir. 2012) (citation omitted).

       “Where the initial intrusion that brings the police within plain view of [] an
article is supported, not by a warrant, but by one of the recognized exceptions to the
warrant requirement, the seizure is also legitimate.” Coolidge v. New Hampshire, 403
U.S. 443, 465 (1971); United States v. Chipps, 410 F.3d 438, 442 (8th Cir. 2005)
(same). This is true even if “a police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an incriminating object.”
Coolidge, 403 US at 466. “During a properly limited protective sweep, the police
may seize an item that is in plain view if its incriminating character is ‘immediately
apparent.’” United States v. Green, 560 F.3d 853, 856 (8th Cir. 2009). In this
context, immediately apparent means that “the police have probable cause to believe
an item is incriminating.” Id. at 858.

       Here, police observed incriminating items2 during a lawful protective sweep
of Williams’s home. Officers had to step over drugs, drug paraphernalia, and two
firearms lying on the floor. In the basement, an officer saw a bag with a white
substance sitting in a cutout portion of the wall. The officers then “called for
detectives realizing how much – how many different types of narcotics were located
there.” Williams’s Br. 24–25.

      Williams cites Mincey v. Arizona, 437 U.S. 385 (1978) for the proposition that
when exigent circumstances have dissipated the Fourth Amendment requires law
enforcement to leave evidence they discovered during the sweep. Nothing in that


      2
        At oral argument, Williams agreed that he had not challenged the seizure of
the Security DVR on the grounds that it was not incriminating in the district court or
fairly raised the issue here. The argument has been waived. United States v.
Wearing, 837 F.3d 905, 910 n.6 (8th Cir. 2016) (per curiam).


                                          -4-
case requires officers to either immediately collect evidence while they are sweeping
a house or leave evidence in the home following a protective sweep. The search in
Mincey was unconstitutional because law enforcement began a “four-day search that
included opening dresser drawers and ripping up carpets” after the exigency had
ended. Id. at 393. The Court recognized that “police may seize any evidence that is
in plain view during the course of their legitimate emergency activities.” Id. That is
what happened here. Officers stayed for about an hour to collect a large amount of
evidence they saw during the protective sweep.3

       We agree with the district court that the evidence was properly seized under the
plain view doctrine and affirm the denial of the motion to suppress.

                                         III.

       Next, Williams contends that “the Government intentionally destroyed or
altered exculpatory evidence” from the Security DVR, Williams’s Supp. Br. 19, and
that the district court erred by “failing to grant [his amended] motion to dismiss [the
indictment] and in failing to enter judgment of acquittal,” id. at 22. We agree with
the district court that Williams has not shown that the Government deleted any
evidence, let alone exculpatory evidence.

       We review the district court’s denial of a motion to dismiss an indictment de
novo. United States v. Williams, 577 F.3d 878, 882 (8th Cir. 2009). The Government
has an obligation “to disclose to the accused favorable evidence that is material to
guilt or punishment.” United States v. Dones-Vargas, 936 F.3d 720, 722 (8th Cir.
2019). Evidence is material “when there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different.”
Smith v. Cain, 565 U.S. 73, 75 (2012). To succeed on a claim that the Government


      3
       Although the officers exceeded the scope of a protective sweep by looking in
the microwave and kitchen cabinets, they seized no evidence from there.


                                          -5-
failed to preserve “potentially useful evidence,” a criminal defendant must show the
police acted in bad faith. Williams, 577 F.3d at 882 (quoting Arizona v. Youngblood,
488 U.S. 51, 58 (1988)).

       Williams argues that the Government “manipulated and changed the hard drive
prior to delivering it to the forensic lab” and “acted in bad faith in manipulating and
altering the [Security] DVR.” Williams’s Supp. Br. 22. Williams points to an
undisputed change between the hash value of the Security DVR’s image taken on
June 23, 2015 and an image taken on February 27, 2017, as evidence that the
Government tampered with Security DVR before and after the forensic lab received
it. The evidence does not support either theory.

       A hash value is a string of characters generated by a specific algorithm that
represents a given set of data stored in an electronic drive or file. Richard P. Salgado,
Fourth Amendment Search and the Power of the Hash, 119 Harv. L. Rev. F. 38,
38–40 (2005). We have referred to them as “digital fingerprints” because the hash
value is “calculated in a way that makes it highly unlikely another set of data will
produce the same value.” United States v. Ackerman, 831 F.3d 1292, 1294 (10th Cir.
2016); United States v. Finley, 612 F.3d 998, 1000 n.3 (8th Cir. 2010). We accept,
as the parties did, that if the hash values between two images of the same file or drive
match, the copies are identical. The district court heard testimony explaining that
removing a single character from a single file would “drastically” change the hash
value for the Security DVR. March 1 Pretrial Conf. at 80:24–81:7. Thus, a change
between the two images’ hash values shows that an unknown amount of data on the
Security DVR changed between June 23, 2015 and February 27, 2017.

       The hash value changing between the June 23 and February 27 images only
shows that the Security DVR was powered on and off and does not, by itself, indicate
that video or image files were added, changed, or deleted. Officer Baine, a forensics
examiner in the Cyber Crimes Unit, testified that after creating a pristine image on
June 23 he set the Security DVR so it would not record over existing video on the


                                          -6-
drive. On February 23, 2017, Officer Baine generated a hash value for the entire
contents of the June 23 image and separate hash values for each of the 41,000 video
files on the Security DVR. He also restored the June 23 image to the Security DVR
for the defense expert,4 which required him to power on the Security DVR twice. The
Security DVR, as programmed, created an entry in a video loss log when it was
turned on and did not receive a feed from the video cameras. Williams’s expert
confirmed that the Security DVR had recorded video loss logs on June 16, 2015 and
two entries on February 22, 2017.5 He agreed that this meant “someone turned the
DVR on.” March 1 Pretrial Conf. Tr. at 19:18–21. As a result, it would be
impossible for the February 27 hash value to match the June 23 hash value because
the Security DVR created new files on February 23 when it was turned on and off.
So the hash value change, alone, does not prove destruction or alteration of evidence.

      Williams’s claim that the evidence shows police tampered with the Security
DVR before turning it over to the forensic lab also fails. As a preliminary matter, the
hash values cannot show misconduct before the Security DVR reached Officer
Baine—because he created the hash values. Instead, Williams points to video footage
the Government produced showing police opening cabinets, using the television, and
waving at a camera on the day of the burglary to show that they tried to alter the
Security DVR. Although the video footage shows some misbehavior, it does not
show that police tampered with the Security DVR. Plus, the manual for the Security
DVR explains that “You cannot delete an individual file directly from the device.”


      4
         The district court never found that Williams’s expert was qualified, so like the
district court, our use of “expert” is for ease of reference.
      5
        Both parties agree that the Security DVR’s internal clock was incorrect by at
least 71 days. The Government concluded that the clock was off by an additional
11 hours and 13 minutes, but Williams’s expert did not compensate for that time in
evaluating the date of the video loss logs. This likely accounts for the discrepancy
between the date Williams’s expert (February 22) and the date the Government
(February 23) note that the Security DVR created new events in the video loss logs.


                                          -7-
D. Ct. Dkt. 128-2 at 33. And at trial, an officer testified that they could only see a
basketball game on the television and that no one attempted to access the Security
DVR at the house. Officer Baine explained that he received the Security DVR on
June 19 in a sealed evidence bag, and his examination of the Security DVR confirmed
that the device had been turned off since it was seized.

        Williams also argues that the absence of footage showing the burglars in the
home (on the same day police are seen) suggests that the Government tampered with
the Security DVR. Although there was no video camera in the bedroom the burglars
ransacked, the video cameras should have recorded the burglars’ journey from the
front door to the bedroom. We acknowledge, as does the Government, that this is
odd. The prosecutor alerted defense counsel to this anomaly during discovery. And
at that time, he invited defense counsel “to inspect and copy all, or any portion, of the
contents of the [Security] DVR.”6 D. Ct. Dkt. 42. Ultimately, this unexplained
“absence” of video shows only that it does not exist or could not be recovered, but it
does not show bad faith by the police. We further note that it makes little sense that
the Government would have destroyed evidence of the burglars’ crime yet turned over
video of police misbehavior after the protective sweep ended.

       Finally, Williams cannot show that any missing data would be exculpatory
because the unchallenged video on the Security DVR overwhelmingly proved his
guilt. The Government introduced more than 20 video clips showing him receiving,
bagging, cutting, weighing, selling, and distributing narcotics, numerous clips with
him possessing a firearm on different occasions, and footage of Williams using a
firearm in connection with drug transactions. Williams did not, and does not here,
challenge the accuracy or authenticity of those videos. His computer expert conceded
that there was no evidence that the individual video files had changed and had “no

      6
         Defense counsel’s representations that the Government delayed access to
either the video or the Security DVR are untrue. Williams’s Supp. Br. 14, 18, 19;
Reply Br. 3, 13.


                                          -8-
dispute with all of the existing videos on the DVR.” March 1 Pretrial Conf.
Tr. 26:11–14. Before the district court, Officer Baine confirmed that the June 23
image and the February 27 image contained the same number of video clips. He also
testified that the hash values for each of those clips were the same on both images.
His examination showed that there is a motion log that corresponds to each video clip
and that those logs are the same on both images. He explained that “[i]f a video had
been deleted, I would see a motion entry log, but then no video,” but that did not
happen. Id. at 73:2–5. Williams does not advance a theory of what other data his
Security DVR contained or even that it was useful data, like videos, that would
exonerate him from acts shown on the unchallenged, pristine video.

      We agree with the district court that the evidence, at most, shows that someone
turned on the Security DVR after it had been imaged on June 23, 2015. Although
there may be some footage from the Security DVR that neither party recovered,
Williams has not shown that police manipulated any video or other file, nor that any
such evidence would change the outcome of the trial.

                                         IV.

      Williams also argues that he did not knowingly waive his right to a jury trial
because the district court failed to tell him that the Government must prove his guilt
beyond a reasonable doubt. We review the district court’s finding that Williams
voluntarily waived his rights de novo. United States v. Guide, 891 F.3d 744, 748 (8th
Cir. 2018). The Government suggests that plain error review applies because
Williams failed to object to the waiver before the district court. See United States v.
Williams, 559 F.3d 607, 613 (7th Cir. 2009). We find that the district court
committed no error (plain or otherwise) and affirm.

      The Sixth Amendment guarantees criminal defendants a jury trial, but a
“defendant has a right to waive his constitutional right to a jury trial provided such
waiver is voluntarily, knowingly and intelligently made.” Dranow v. United States,


                                         -9-
325 F.2d 481, 482 (8th Cir. 1963). Whether a defendant has validly waived that right
depends on the unique circumstances of each case, and a district court considers a
variety of factors “including but not limited to the extent of the particular defendant’s
ability to understand courtroom discussions regarding the waiver.” Guide, 891 F.3d
at 748.

       Williams alleges he could not “knowingly” waive his jury trial right without
knowing what standard the fact finder would use to determine his guilt. He cites no
authority for this, and it is the Due Process Clause, not the Sixth Amendment, that
requires the reasonable doubt standard in criminal cases. In re Winship, 397 U.S.
358, 364 (1970). Other courts have held that “[a] defendant is sufficiently informed
to make an intelligent waiver if he was aware that a jury is composed of 12 members
of the community, he may participate in the selection of the jurors, the verdict of the
jury must be unanimous, and that a judge alone will decide guilt or innocence should
he waive his jury trial right.” United States v. Martin, 704 F.2d 267, 273 (6th Cir.
1983); see also United States v. Robertson, 45 F.3d 1423, 1432 (10th Cir. 1995);
United States v. Rodriguez, 888 F.2d 519, 527 (7th Cir.1989); United States v.
Cochran, 770 F.2d 850, 853 (9th Cir. 1985). We agree.

       The district court’s colloquy clearly shows that Williams knew the
consequences of the waiver. Williams understood he had “an absolute right to a trial
by a jury made up of 12 people, all of whom would have to agree as to [his] guilt
before [he] could be found guilty.” March 6 Tr. 5:22–6:2. He knew that he could
participate in the selection of jurors. Williams agreed that the judge alone would be
the trier of facts and determine his guilt or innocence. After a short recess for
Williams to discuss the waiver with counsel, the court reiterated the nature of the
right and Williams executed a Rule 23 compliant waiver. We are left with no doubt
that Williams validly waived his right to proceed with a jury trial.




                                          -10-
                                           V.

      Finally, Williams claims that it was error for the district court to deny his
motion to proceed pro se on the morning that his jury trial was set to begin. We
review the denial of his motion de novo. See United States v. Mosley, 607 F.3d 555,
558 (8th Cir. 2010).

      The Sixth Amendment “necessarily implies the right of self-representation.”
Faretta v. California, 422 U.S. 806, 832 (1975). But that right is not absolute.
United States v. Edelmann, 458 F.3d 791, 808 (8th Cir. 2006). Among other
requirements, the request must be timely and cannot be used as a tactic for the delay,
disruption, distortion, or manipulation of the trial process. Id. at 808–09.

        The district court found it “apparent that Defendant seeks to utilize his right of
self-representation as a tactic for delay and disruption, as well as to manipulate the
trial process itself.” D. Ct. Dkt. 159 at 2. It noted that Williams had a “long history
of dismissing his attorneys” and that in nineteen months he was on his fifth attorney.
Id. The district court reviewed Williams’s motion and explained that it raises “issues
[that] have been raised and ruled on by the Court.” March 6 Tr. 12:21–13:3.

       The docket shows that Williams received six extensions to file pretrial motions,
and after filing his first motion, Williams retained new counsel who received yet
another extension to file a new motion. Two of the four continuances the district
court granted Williams occurred because he had dismissed his attorneys weeks prior
to the trial date. When it granted the final continuance, the court noted “it is very
frustrating that we are here on the Friday before the Monday of trial to be in this
position,” February 24 Pretrial Conf. Tr. 37:20–21, and that “this case has been
pending for many, many, many months” and “[i]t has been set for trial on a number
of occasions,” id. at 38:5–9. We agree with the district court that Williams’s conduct
showed a pattern of replacing attorneys to delay the proceedings and that he would
be disrupting the trial to relitigate issues already decided.


                                          -11-
        Williams argues that statements he made at the final pretrial conference (five
days before trial) show problems with his attorney and that he did not seek to delay
trial.7 It is unsurprising that a defendant who had just lost a motion to dismiss an
indictment would be unhappy with counsel, but we disagree that these statements
show Williams was ready to conduct his own defense. The court gave notice that the
trial was starting on Monday—implying that trial would proceed even if Williams
replaced counsel for the fifth time. Williams’s confirmation that he was ready to go
to trial merely showed acceptance that trial would begin Monday. March 1 Pretrial
Conf. Tr. 92:14–15 (“Let it be what it be.”).

        We recognize that a motion to proceed pro se filed on the day of trial can be
timely, United States v. Patterson, 140 F.3d 767, 775 (8th Cir. 1998), but we agree
with the district court’s finding that Williams’s motion was untimely on the morning
of trial under the facts presented here. Edelmann, 458 F.3d at 808 (request made four
to five days before trial untimely); see also United States v. Kelley, 787 F.3d 915, 918
(8th Cir. 2015) (day of trial request untimely).

                                          VI.

      Accordingly, we affirm the district court in full.
                     ______________________________




      7
        Williams appears to suggest that the district court “forced” counsel on him by
repeating that he should “just talk to Mr. Sims, work with him.” We see the district
court’s statements as an attempt to protect attorney-client communications from being
repeated in open court before the prosecutor.
                                         -12-
