                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 11-1529
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Fernando Sanchez-Garcia,               *
                                       *
            Appellant.                 *

      ___________                          Appeals from the United States
                                           District Court for the
      No. 11-2113                          Western District of Arkansas.
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Torrance Bunch,                        *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: November 17, 2011
                                Filed: July 18, 2012
                                 ___________

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
                           ___________
COLLOTON, Circuit Judge.

       Torrance Bunch and Fernando Sanchez-Garcia were each convicted by a jury
of conspiracy to possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846.
The jury also found Bunch guilty of three counts of distribution of five grams or more
of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). On
appeal, Bunch alleges that he was denied his Sixth Amendment right to counsel, and
Sanchez-Garcia contends that the district court1 erred in denying his motion for a
mistrial and committed other trial-related errors. We affirm.

                                          I.

       On December 16, 2009, law enforcement officers executed a search warrant on
an apartment in Fort Smith, Arkansas. In the apartment, officers found Torrance
Bunch, Amanda Hall, and Fernando Sanchez-Garcia, along with over $12,000 in
United States currency, several cellular telephones, a set of scales, and thirty-seven
grams of methamphetamine. When the officers entered the residence, Sanchez-Garcia
ran to the bathroom and attempted to flush the methamphetamine down the toilet.
During the search, the officers interviewed Bunch, who admitted to selling
methamphetamine. Bunch and Sanchez-Garcia were later arrested and convicted in
state court of conspiracy to possess methamphetamine with intent to deliver.

       Law enforcement officers continued to investigate Bunch, Hall, and Sanchez-
Garcia. In March 2010, officers made a series of three controlled purchases of
methamphetamine using a confidential informant. During the investigation, the
officers discovered evidence that Bunch was supplying the methamphetamine,


      1
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.

                                         -2-
arranging the sales, and directing Hall, Charles Crutchfield, and Krysten McConnell
to distribute the methamphetamine and pick up the payments.

       On May 26, 2010, a grand jury charged Bunch, Sanchez-Garcia, Hall,
Crutchfield, and McConnell with conspiracy to possess with intent to distribute 500
grams or more of methamphetamine. Bunch was also charged with three counts of
distribution of methamphetamine. Three of the co-defendants—Hall, Crutchfield,
and McConnell—signed plea agreements with the government and agreed to testify
against Bunch and Sanchez-Garcia.

       At trial, the government presented evidence of Bunch’s purchase and
distribution of methamphetamine in Fort Smith. This evidence included details of the
2009 search, recordings and eyewitness testimony of the three controlled buys,
testimony from Crutchfield, McConnell, Hall, and Jerry Frazier that they each had
distributed methamphetamine for Bunch, and testimony from Miguel Hugo Munoz-
Gonzales and Ann Marie Porta that Bunch purchased large quantities of
methamphetamine for distribution from both Munoz-Gonzales and Sanchez-Garcia.
Munoz-Gonzales and Porta further testified that Sanchez-Garcia occasionally worked
with Bunch to distribute methamphetamine. Porta also testified that Sanchez-Garcia
ran his own operation of methamphetamine distribution. The government introduced
an audio recording of a telephone call made by Sanchez-Garcia from the Sebastian
County Jail to Bunch that included a discussion of methamphetamine distribution.

       The jury returned verdicts of guilty on all counts. Because Bunch had
sustained three prior felony drug convictions, the district court sentenced him to a
mandatory statutory term of life imprisonment on the conspiracy charge and 20 years’
imprisonment on each distribution charge, to run concurrently. The court sentenced
Sanchez-Garcia to 324 months’ imprisonment. Both defendants appeal.




                                        -3-
                                           II.

      After a series of pretrial events, Bunch proceeded to trial without counsel. On
appeal, Bunch contends that the district court’s rulings violated his right to counsel
under the Sixth Amendment, because he did not knowingly, intelligently, and
voluntarily waive his right to counsel.

        Bunch originally retained Rex Chronister to represent him in this case and paid
Chronister a $25,000 fee. But Chronister withdrew from the representation before
trial, thus triggering the events that give rise to this aspect of the appeal. Chronister
was required to withdraw because he represented both Bunch and his alleged co-
conspirator, Amanda Hall, in their related state proceedings, and Hall was scheduled
to testify against Bunch in this case.

       After permitting Chronister to withdraw, the court instructed Bunch to obtain
a new attorney or inform the court that he intended to proceed pro se. In a pretrial
status conference, less than a week before trial, Bunch informed the court that he did
not obtain a new attorney because he could not afford one. In response, the district
court instructed Bunch that “[i]f you believe that you have no assets and can qualify
for an attorney to be appointed, you can fill out the appropriate paperwork and if
that’s justified, then we will get you an attorney.” Bunch refused to make a decision,
telling the court to make a decision for him. Bunch declared that he was not going
to ask for appointment of counsel because he had already paid for an attorney. When
the district court asked Bunch if he wanted an appointed attorney or wanted to
represent himself, Bunch refused to answer the question. The district court then
scheduled the trial for six days later, November 8, 2010.

      In a pretrial conference on November 5, 2010, Bunch reiterated that he was not
requesting an appointed attorney. The district court informed Bunch that attorneys
were available to represent him if he met the financial requirements, and asked him

                                          -4-
if he wanted an appointed attorney, but Bunch refused to answer the question. After
informing Bunch of the difficulty in proceeding pro se and the penalties he faced, the
court asked him if he still wanted to represent himself, but Bunch responded that he
“never said [he] was going to represent [himself].” The court again asked Bunch if
he wanted an attorney, and Bunch said no. When asked if he was waiving his right
to an attorney, Bunch again said no. Bunch then refused to choose one of the two
options presented by the court—accepting a court-appointed attorney or proceeding
pro se.

        The district court opted to appoint a “standby attorney,” who would be
available to answer any legal questions from Bunch during the trial. The court also
offered before trial to appoint the standby attorney to act as Bunch’s attorney during
trial. Bunch refused to answer. Bunch then declined to answer questions or to
participate actively throughout the remainder of pretrial proceedings and the trial
itself. In his opening statement to the jury, Bunch informed the court that he wished
not to proceed with the trial, “because the attorney that I retained to represent me is
not present today in the courtroom. And I do not proceed to represent myself. I paid
for an attorney to represent me and he’s not here.”

       The Sixth Amendment, as interpreted by the Supreme Court, grants an accused
both the right to counsel and the alternative right to self-representation. Faretta v.
California, 422 U.S. 806, 807 (1975). To represent himself, an accused must
“knowingly and intelligently” waive his constitutional right to the assistance of
counsel. Id. at 835. The Court in Faretta said that a defendant “should be made
aware of the dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes open.” Id.
(internal quotation omitted). We review de novo the district court’s decision to allow
the defendant to waive his right to counsel. United States v. Kiderlen, 569 F.3d 358,
364 (8th Cir. 2009).



                                          -5-
       Bunch contends that he did not waive his right to counsel because he
repeatedly told the district court that he did not intend to represent himself and that
he was not waiving his right to counsel. In Bunch’s view, the district court gave him
conflicting information regarding his options for representation after his attorney
withdrew, and his statements and actions in response to the court show that he was
“flustered and perplexed.” He says that any waiver of the right to counsel was not
knowing and intelligent.

       The government, on the other hand, contends that Bunch waived his right to
counsel through his conduct. The prosecution’s view is that when Bunch refused to
obtain a new attorney or to request an appointed attorney, he knowingly and
intelligently waived his right to counsel. The government suggests that Bunch’s
refusal to answer the district court’s questions regarding his choice of representation
show that he was using his right to counsel to manipulate the system and delay the
trial. See Meyer v. Sargent, 854 F.2d 1110, 1113 (8th Cir. 1988).

       An accused can waive his right to counsel by conduct. Courts have held that
where a defendant is warned that he must choose between continuing with court-
appointed counsel or proceeding pro se, the defendant’s choice to discharge the
appointed counsel constitutes a knowing and intelligent waiver of the right to the
assistance of counsel. United States v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001);
see also King v. Bobby, 433 F.3d 483, 492-493 (6th Cir. 2006); United States v.
Irorere, 228 F.3d 816, 826-827 (7th Cir. 2000). We agree with this general
proposition.

       Bunch’s case presents a variation on the scenario addressed by our sister
circuits. He was never represented by court-appointed counsel, and he did not choose
to discharge his retained attorney. Nevertheless, once Bunch declared that he could
not afford to retain a second lawyer, the district court presented Bunch with his two



                                          -6-
remaining options: to accept a court-appointed attorney or to proceed without
counsel. Bunch simply refused to respond.

       Under those circumstances, and in light of the advice that the district court
gave Bunch before the trial commenced, we conclude that Bunch knowingly and
intelligently waived his right to counsel. The district court told Bunch that “the worst
thing [he] can probably do is to try and represent [himself] in this matter,” because
“[i]t’s difficult for a layperson to know about the Rules of Evidence and to know
whether to speak and to know when not speak.” The court repeated this advice
several times, telling Bunch it would be a “serious, serious mistake” and “probably
the worst idea I’ve seen in a long time” for Bunch to proceed without an attorney.
The court also informed Bunch of the severe penalties that he faced if convicted, and
of his right to appeal. Bunch claims that he thought an “appeal” was “a re-trial,” in
the event he did not like the result of the trial. But there is nothing in the record to
support this contention, and Bunch’s extensive experience with the criminal justice
system suggests otherwise.

       Bunch rejected the court’s pretrial offers to appoint counsel for him, despite the
presence of standby counsel who could have been appointed. Although Bunch did
assert that he was not representing himself, we conclude that by repeatedly rejecting
all options except self-representation, after having been warned of the consequences,
Bunch “necessarily chose self-representation.” See King, 433 F.3d at 492. The
district court’s rulings thus did not violate Bunch’s rights under the Sixth
Amendment.




                                          -7-
                                         III.

                                         A.

       Sanchez-Garcia first argues that the district court erred by not granting his
motions for a mistrial based on two allegedly improper comments from witnesses
regarding his immigration status. We review a district court’s denial of a motion for
a mistrial because of a witness’s improper comment for abuse of discretion. United
States v. Branch, 591 F.3d 602, 607 (8th Cir. 2009). This court has deemed several
factors relevant in deciding whether an improper remark warrants a mistrial: “(1)
whether the remark was unsolicited; (2) whether the government’s line of questioning
was reasonable; (3) whether a limiting instruction was immediate, clear, and forceful;
(4) whether any bad faith was evidenced by the government; and (5) whether the
remark was only a small part of the evidence against the defendant.” Id. at 608.

       Sanchez-Garcia first points to the testimony of Miguel Hugo Munoz-Gonzales,
one of Bunch’s methamphetamine suppliers. When asked by the prosecutor if he had
any information about Sanchez-Garcia’s involvement with Bunch in the distribution
of methamphetamine, Munoz-Gonzales responded as follows:

      I asked [Sanchez-Garcia] where he was from—he told me from Mexico,
      Puebla, so we were just talking, and then I asked him about he had been
      in the newspaper, that I had seen him in the newspaper. I asked him
      what had happened, and he told me that it was a mistake, that he was
      leaving the—that he was only here for a re-entry charge.

Sanchez-Garcia did not object to the testimony when it was received, but moved for
a mistrial at the conclusion of Munoz-Gonzales’s testimony.

      We see no abuse of discretion in the district court’s denial of a mistrial. The
remark by Munoz-Gonzales was plainly unsolicited. It was nonresponsive to the


                                         -8-
government’s reasonable line of questioning about Sanchez-Garcia’s involvement
with Bunch in methamphetamine distribution. Sanchez-Garcia declined a limiting
instruction and deliberately chose to withhold a contemporaneous objection so as to
avoid drawing attention to the statement. There is no evidence of bad faith by the
government, and the statement was only a small part of the evidence against Sanchez-
Garcia.

       Sanchez-Garcia next points to a statement from witness Ann Marie Porta on
redirect examination. On cross-examination, Sanchez-Garcia’s counsel impeached
Porta by eliciting testimony that she sustained a prior conviction for fleeing police.
On redirect, the prosecutor asked Porta what had happened that led to the conviction
and who had been with her at the time of the incident. In response, Porta testified that
she was pulled over for speeding, “[a]nd Fernando [Sanchez-Garcia] was in the car
with me and he is illegal, so we decided to take off.” The district court immediately
directed the jury to disregard the statement. Sanchez-Garcia renewed his motion for
a mistrial, and the district court again denied the motion.

       Porta’s testimony is more problematic, because the remark was solicited by the
prosecutor. The rules of evidence permitted Sanchez-Garcia to impeach Porta with
a prior felony conviction, see Fed. R. Evid. 609(a)(1)(A), and it is questionable
whether the circumstances of the offense, including Sanchez-Garcia’s involvement
and his immigration status, were relevant to rehabilitating Porta’s credibility. See
United States v. Plante, 472 F.2d 829, 832 (1st Cir. 1973) (noting a split of authority
as to whether the proponent of a witness may “go into the details” of a prior
conviction in order to “diminish the effect of the conviction”). But the district court
acted promptly to strike the portion of Porta’s testimony concerning immigration
status, and the comment must be considered in the context of the entire trial. United
States v. Sherman, 440 F.3d 982, 988 (8th Cir. 2006).




                                          -9-
       The government presented substantial evidence of Sanchez-Garcia’s guilt.
This included corroborating testimony from Munoz-Gonzales, Hall, and Porta that
Sanchez-Garcia supplied methamphetamine to Bunch, testimony from Eduardo
Noriego that Sanchez-Garcia sold him a pound of methamphetamine, and testimony
from Porta that Sanchez-Garcia bought and sold “a couple of pounds” of
methamphetamine a month. A law enforcement offer also testified that Sanchez-
Garcia possessed thirty-seven grams of methamphetamine during the 2009 search of
the apartment containing Bunch, Hall, and Sanchez-Garcia. The jury heard a
recording of a telephone conversation from Sanchez-Garcia to Bunch from the
Sebastian County Jail in which they discussed methamphetamine distribution, and a
stipulation that Sanchez-Garcia was convicted in 2010 for conspiracy to possess
methamphetamine with intent to deliver. Given the strength of the evidence and the
district court’s prompt curative actions after the objectionable testimony, it was not
an abuse of discretion for the court to deny a mistrial. See United States v. Whitney,
787 F.2d 457, 461 (8th Cir. 1986).

      Sanchez-Garcia also argues that he was entitled to a mistrial because the
prosecutor made improper comments during the closing argument. Sanchez-Garcia
made no contemporaneous objection, so we review the claim under the plain-error
standard. United States v. New, 491 F.3d 369, 378 (8th Cir. 2007).

       During his closing argument, the prosecutor stated: “At the end of the day, this
is what it comes down to. Methamphetamine. We all know that it’s an illegal drug.
We all know what it does to our community.” Later, in his rebuttal argument, the
prosecutor said: “[T]hese two defendants are revealed to you today for what they truly
are—two people who conspired together to possess with the intent to distribute
methamphetamine, two people who have the object of making sure that the
methamphetamine was supplied to the users and the addicts right here in Fort Smith,
Arkansas.” Sanchez-Garcia argues that these statements improperly appealed to the
jury to act as “the conscience of the community.”

                                         -10-
       The prosecutor’s comments were not improper. “Unless calculated to inflame,
an appeal to the jury to act as the conscience of the community is not impermissible.”
United States v. Lewis, 547 F.2d 1030, 1037 (8th Cir. 1976). This court has said that
a prosecutor should not urge a jury to act as a “bulwark against . . . putting this poison
on the streets,” because such language is unduly inflammatory, and may lead a jury
to substitute emotion for evidence. United States v. Johnson, 968 F.2d 768, 771 (8th
Cir. 1992). But the argument here—citing the effects of methamphetamine on the
Fort Smith community—is of a different character. We agree with the Fifth Circuit
that where the prosecution is “merely reminding the jurors of the adverse [e]ffect that
the defendants’ activities had upon the particular community in which they sold
[methamphetamine], rather than encouraging the jurors to convict the defendants
because the community expected a conviction,” the argument is not improper. United
States v. Fields, 72 F.3d 1200, 1208 (5th Cir. 1996).

                                           B.

       Sanchez-Garcia next contends that he was prejudiced by a joint trial with
Bunch, and that the district court should have severed the trials pursuant to Federal
Rule of Criminal Procedure 14(a). He did not move to sever before or during trial,
so we review the district court’s conduct of a joint trial for plain error. United States
v. Brown, 560 F.3d 754, 766 (8th Cir. 2009). Sanchez-Garcia therefore must “show
not only that there was a Rule 14 violation affecting his substantial rights, but also
that there is some extraordinary reason for us to reverse for such error despite his
failure to raise the issue in the trial court.” Id. (internal quotations omitted).

       A defendant is entitled to severance only if he shows that prejudice would
result from a joint trial. Fed. R. Crim. P. 14; United States v. Davis, 534 F.3d 903,
916 (8th Cir. 2008). “Joint trials play a vital role in the criminal justice system,” as
“[t]hey promote efficiency and serve the interests of justice by avoiding the scandal
and inequity of inconsistent verdicts.” Zafiro v. United States, 506 U.S. 534, 537

                                          -11-
(1993) (internal quotations and citations omitted). A district court should grant a
severance “only if there is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” Id. at 539. Our cases suggest that to show
sufficient prejudice, a defendant must establish that “(a) his defense is irreconcilable
with that of his co-defendant or (b) the jury will be unable to compartmentalize the
evidence as it relates to the separate defendants.” Davis, 534 F.3d at 916-17 (internal
quotations omitted).

        Sanchez-Garcia argues that he was prejudiced by the fact that Bunch
proceeded without counsel and refused to cooperate with the district court during
trial. He infers that the jury must have been biased against Bunch, and that the bias
carried over to Sanchez-Garcia. This purported prejudice does not fall within either
of the two categories of prejudice that this court has recognized, Davis, 534 F.3d at
916-17, and we have held that disruptive courtroom behavior by one defendant is not
sufficiently prejudicial to require severance. United States v. Delpit, 94 F.3d 1134,
1143-44 (8th Cir. 1996). The risk of prejudice in a joint trial is best addressed by jury
instructions, id. at 1144, and the district court in this case directed the jury to give
separate consideration to the evidence about each individual defendant. Final Jury
Instruction No. 4. Sanchez-Garcia thus has not shown that the district court
committed plain error by proceeding with a joint trial.

                                           C.

      Sanchez-Garcia next argues that the government breached its discovery
obligations under Federal Rule of Criminal Procedure 16 by failing to disclose the
audio recording of Sanchez-Garcia’s telephone call to Bunch from the Sebastian
County Jail in a timely manner. The prosecution disclosed the recording to the
defense three days before trial. Sanchez-Garcia contends that the district court should
have excluded the recording from trial.

                                          -12-
      Rule 16 requires the government to disclose to the defendant, “[u]pon a
defendant’s request,” any written or recorded statements by the defendant if the
statement is “within the government’s possession, custody, or control,” and “the
attorney for the government knows—or through due diligence should know—that the
statement exists.” Fed. R. Crim. P. 16(a)(1)(B)(i). In this case, however, Sanchez-
Garcia made no request pursuant to Rule 16(a)(1)(B), so there was no violation of
Rule 16. See United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000).

       The government, moreover, represented that it did not discover the call until
the week before the trial, and then promptly disclosed an audio recording to Sanchez-
Garcia. A witness had disclosed during trial preparation that she was present when
Bunch received a call from Sanchez-Garcia in jail. According to the prosecution,
authorities then discovered that Sanchez-Garcia had used another inmate’s personal
identification number to place the call. Sanchez-Garcia did not rebut this
representation. Nor did he seek a continuance or demonstrate how additional time
would have allowed him to rebut the audio recording. The district court did not abuse
its discretion by admitting the evidence.

                                         D.

       Finally, Sanchez-Garcia argues that his trial counsel provided ineffective
assistance of counsel. Generally, claims of ineffective assistance of counsel should
be raised in collateral proceedings under 28 U.S.C. § 2255. United States v. Bauer,
626 F.3d 1004, 1009 (8th Cir. 2010). This is not an instance “where the record has
been fully developed, where not to act would amount to a plain miscarriage of justice,
or where counsel’s error is readily apparent,” United States v. Hubbard, 638 F.3d
866, 869 (8th Cir. 2011) (internal quotation omitted), so we decline to address the
ineffective-assistance claim on direct appeal.




                                        -13-
                        *      *      *

The judgments of the district court are affirmed.
               ______________________________




                              -14-
