                                                                         RECOMMENDED FOR FULL-TEXT PUBLICATION
16   United States v. Webber                  No. 98-1708                     Pursuant to Sixth Circuit Rule 206
                                                                      ELECTRONIC CITATION: 2000 FED App. 0114P (6th Cir.)
                                                                                  File Name: 00a0114p.06
                       Conclusion
  For the reasons stated above, the Court concludes that
Defendant’s right to testify on his own behalf was not        UNITED STATES COURT OF APPEALS
unconstitutionally denied and there was sufficient evidence
for the jury to convict Defendant on count four of the                          FOR THE SIXTH CIRCUIT
indictment. Therefore, Defendant’s sentence and convictions                       _________________
are AFFIRMED.

                                                                                                ;
                                                                                                 
                                                               UNITED STATES OF AMERICA,
                                                                                                 
                                                                         Plaintiff-Appellee,
                                                                                                 
                                                                                                 
                                                                                                    No. 98-1708
                                                                         v.
                                                                                                 
                                                                                                  >
                                                               VINCENT WEBBER,                   
                                                                       Defendant-Appellant. 
                                                                                                1
                                                                    Appeal from the United States District Court
                                                                   for the Eastern District of Michigan at Detroit.
                                                                  No. 95-80116—Gerald E. Rosen, District Judge.
                                                                                Argued: December 16, 1999
                                                                            Decided and Filed: March 31, 2000
                                                               Before: RYAN and NORRIS, Circuit Judges; NUGENT,*
                                                                                 District Judge.
                                                                                    _________________
                                                                                         COUNSEL
                                                              ARGUED:        Otis H. Stephens, UNIVERSITY OF
                                                              TENNESSEE, Knoxville, Tennessee, for Appellant. Michael
                                                              R. Mueller, ASSISTANT UNITED STATES ATTORNEY,

                                                                  *
                                                                   The Honorable Donald C. Nugent, United States District Judge for
                                                              the Northern District of Ohio, sitting by designation.

                                                                                               1
2    United States v. Webber                     No. 98-1708      No. 98-1708                     United States v. Webber       15

Detroit, Michigan, for Appellee. ON BRIEF: Gerald L.              pager number to Agent Strickland. Agent Strickland then
Gulley, Jr., BAKER, McREYNOLDS, BYRNE, O’KANE &                   called the pager number and set up the December 13, 1994,
SHEA, Knoxville, Tennessee, for Appellant. Michael R.             transaction for two ounces of crack cocaine. After arranging
Mueller, ASSISTANT UNITED STATES ATTORNEY,                        the transaction with Mr. Johnson, Agent Strickland paid
Detroit, Michigan, for Appellee.                                  Defendant the agreed-upon $100 dollars for the pager number
                                                                  and code. Without Defendant’s participation, Mr. Johnson
                    _________________                             and Agent Strickland could not have completed the December
                                                                  13, 1994, transaction for two ounces of crack cocaine, much
                        OPINION                                   less the first two one-ounce transactions. This is more than
                    _________________                             sufficient evidence for a trier of fact to determine that
                                                                  Defendant knew Mr. Johnson possessed the crack cocaine
  NUGENT, District Judge. Defendant Vincent Webber                with the intent to sell it, and that Defendant offered assistance
appeals his convictions and sentence on count one for             and encouragement to Mr. Johnson in the commission of the
conspiracy to possess with intent to distribute cocaine base in   two-ounce sale.
violation of 21 U.S.C. § 846, counts two and three for
distribution of cocaine base in violation of 21 U.S.C.               Third, in regard to Defendant’s argument that he never
§ 841(a)(1), and count four for aiding and abetting               actually possessed the crack cocaine and thus should not have
distribution of cocaine base in violation of 21 U.S.C.            been found guilty of aiding and abetting, it is well-settled that
§ 841(a)(1) and 18 U.S.C. § 2. Defendant claims his right to      it is not necessary for the government to prove that the
testify on his own behalf was unconstitutionally denied.          defendant actually or even constructively possessed the drugs
Defendant also alleges that there was insufficient evidence for   in order to obtain a conviction for aiding and abetting.
the jury to convict him on count four of the indictment. For      Ledezma, 26 F.3d at 641 (citing United States v. Winston, 687
the reasons that follow, we AFFIRM the convictions and            F.2d 832, 834 n.2, 835 (6th Cir. 1982)).
sentence.
                                                                     Reviewing the evidence in the light most favorable to the
          Factual and Procedural Background                       prosecution, there is ample evidence for us to determine that
                                                                  a rational trier of fact could have found that the essential
   On November 22, 1994, Defendant Vincent Webber met             elements of the crime were proven beyond a reasonable
with Drug Enforcement Administration undercover agent             doubt. The evidence is clear Defendant knew that Mr.
Robert Strickland and a cooperating informant at Starters         Johnson, the principal, possessed crack cocaine with the
Lounge in Detroit, Michigan. Agent Strickland and the             intent to distribute it, and that Defendant assisted in Mr.
cooperating informant were there to purchase one ounce of         Johnson’s plan to deliver the crack cocaine. See Ledezma, 26
crack cocaine (cocaine base) from Defendant. This                 F.3d at 641. Because Defendant associated himself with the
transaction had been arranged through several telephone           venture, participated in it, and sought by his actions to make
conversations between the cooperating informant and               it succeed, United States v. Peoni, 100 F.2d 401, 402 (2d Cir.
Defendant. After meeting Agent Strickland and the                 1938) (L. Hand, J.), quoted with approval in Ledezma, 26
cooperating informant, Defendant paged his source, Tujuan         F.3d at 641, Defendant’s argument that the evidence was
Johnson. Shortly thereafter, Mr. Johnson entered the lounge       insufficient to sustain his conviction on count four of the
and proceeded to the restroom, followed by Defendant and          indictment for aiding and abetting fails.
Agent Strickland. Agent Strickland purchased 20 grams
(about two-thirds of an ounce) of crack cocaine from Mr.
14   United States v. Webber                      No. 98-1708      No. 98-1708                    United States v. Webber      3

  Defendant asserts that he did not aid and abet the               Johnson for $1,100 dollars. Mr. Johnson paid Defendant $50
distribution of crack cocaine because he (1) “was never able       dollars as a “transaction” or referral fee. Agent Strickland
to provide [Agent Strickland] with instant access to any           and Defendant agreed to talk later in order to set up another
quantity of cocaine base”; (2) “always required lead time in       transaction.
order to contact Johnson”; (3) “was never able to locate more
than an ounce of cocaine for Strickland”; and, (4) “never had         On December 5, 1994, Agent Strickland called Defendant
anything to do with the actual possession of the ‘crack’           in order to purchase another ounce of crack cocaine.
cocaine.” (Def.’s Br. at 27-28.) Defendant’s arguments miss        Defendant told him that the price would be $1,100 dollars and
the mark.                                                          said that he wanted to make more than $50 dollars for this
                                                                   transaction. Agent Strickland agreed to pay him an additional
   First, in regard to Defendant’s first two arguments, there is   $50 dollars, over and above the $50 dollars that he would
no immediacy requirement to aiding and abetting. The only          receive from Mr. Johnson. Defendant, Agent Strickland, and
strict time requirement applicable to aiding and abetting is       Mr. Johnson met later that day at the back of Starters Lounge,
that “one cannot aid and abet a completed crime.” Ledezma,         where Agent Strickland purchased 21.4 grams of crack
26 F.3d at 642. A prolonged period of time between a               cocaine from Mr. Johnson for $1,100 dollars. Mr. Johnson
defendant’s actions and the commission of the offense may          paid Defendant his $50 dollar transaction fee. Agent
dissipate the strength of the government’s argument that a         Strickland then spoke to Mr. Johnson about purchasing larger
defendant’s activity could be characterized as intending to        quantities of crack cocaine from him directly. Mr. Johnson
help or encourage the commission of a crime, see, e.g., United     told Agent Strickland to get his pager number from Defendant
States v. Hill, 55 F.3d 1197, 1204 (6th Cir. 1995), but that is    and use Defendant’s code. Before leaving the bar, Agent
not the case here. In the matter at hand, the period of time       Strickland paid Defendant the extra $50 dollars as promised.
between Defendant’s activities and the commission of the           In sum, Defendant made $100 dollars for his part in the
crime was rather brief and not so attenuated as to cast doubt      transaction.
on the trier of fact’s determination that Defendant knew that
Mr. Johnson possessed crack cocaine with the intent to               On December 8, 1994, Agent Strickland spoke to
distribute it and assisted in Mr. Johnson’s plan to deliver the    Defendant and his sister, Mary Ann Webber, several times in
crack cocaine.                                                     order to get Mr. Johnson’s pager number from Defendant.
                                                                   Agent Strickland visited Defendant on December 12, 1994,
   Second, the fact that Defendant never located more than an      while Defendant was hospitalized at a Trenton, Michigan,
ounce of cocaine for Agent Strickland and thereby cannot be        hospital, in a further attempt to get the pager number and
linked to aiding and abetting a two ounce sale is not              code. Defendant provided Agent Strickland with Mr.
convincing. Defendant set up the first two transactions and        Johnson’s pager number in exchange for $100 dollars. Agent
met with Agent Strickland at both. After the first transaction,    Strickland then called Mr. Johnson from the hospital,
Defendant and Agent Strickland discussed what the future per       arranging to purchase two ounces of crack cocaine the next
ounce cost of crack cocaine would be and the fact that             day. After completing the call, Agent Strickland paid
Defendant had dealt with Mr. Johnson a number of times.            Defendant the agreed-upon $100 dollars for the pager number
Defendant wanted to engage in a third transaction on the night     and code. On December 13, 1994, Agent Strickland met Mr.
of December 8, 1994, but Agent Strickland was unable to            Johnson at Starters Lounge and purchased 41.6 grams of
meet. After the first two transactions, for which Defendant        crack cocaine for $1,940 dollars.
received a transaction fee, Defendant sold Mr. Johnson’s
4        United States v. Webber                        No. 98-1708        No. 98-1708                     United States v. Webber      13

  A federal grand jury returned a four-count indictment                    III. The Sufficiency of the Evidence
against Defendant, Mary Ann Webber, and Tujuan Johnson
on December 19, 1995. Count one charged all three with                        Defendant contends that the government did not present
conspiracy to possess with intent to distribute cocaine base               sufficient evidence to sustain his conviction on count four of
from November 21, 1994, to December 13, 1994, in violation                 the indictment for distribution of crack cocaine, or aiding and
of 21 U.S.C. § 846. Count two charged Defendant and Mr.                    abetting the distribution of crack cocaine, in violation of 21
Johnson with distribution of cocaine base on November 22,                  U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We review a challenge
1994, in violation of 21 U.S.C. § 841(a)(1). Count three                   to the sufficiency of the evidence by considering the evidence
charged Defendant and Mr. Johnson with distribution of                     in the light most favorable to the prosecution to determine
cocaine base on December 5, 1994, in violation of 21 U.S.C.                whether a rational trier of fact could have found that the
§ 841(a)(1). Count four charged Defendant and Mr. Johnson                  essential elements of the crime were proven beyond a
with the distribution, and aiding and abetting the distribution,           reasonable doubt. United States v. Spearman, 186 F.3d 743,
of cocaine base on December 13, 1994, in violation of 21                   746 (6th Cir. 1999) (citing United States v. Jones, 102 F.3d
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.                                      804, 807-08 (6th Cir. 1996)). “A defendant making such a
                                                                           challenge bears a very heavy burden.” Spearman, 186 F.3d at
  Defendant was arrested on February 14, 1995. He pled not                 746 (citation omitted).
guilty. Prior to trial, the trial court granted Defendant’s1
Motion to Sever his trial from that of the other defendants.                 21 U.S.C. § 841(a)(1) makes it unlawful for “any person
Defendant’s jury trial began on November 14, 1997. Prior to                knowingly or intentionally to manufacture, distribute, or
the conclusion of the government’s case, in a discussion                   dispense, or possess with intent to manufacture, distribute, or
regarding jury instructions that took place after the jury had             dispense, a controlled substance.” 18 U.S.C. § 2(a) states:
been excused for lunch, Defendant’s counsel, Mr. Curtis                    “Whoever commits an offense against the United States or
Williams, stated that the defense wanted an instruction on                 aids, abets, counsels, commends, induces, or procures its
entrapment.     Defendant’s counsel also indicated that                    commission, is punishable as a principal.”
Defendant was going to testify. The following colloquy took
place in open court and on the record:                                       Defendant argues that the “proof was insufficient for a
                                                                           rational trier of fact to find beyond a reasonable doubt that
      THE COURT: . . . [T]here’s an instruction on                         Vincent Webber aided and abetted, or otherwise distributed,
    entrapment. I haven’t heard the defense raise the issue of             ‘crack’ cocaine as alleged in Count Four of the Indictment.”
    entrapment.                                                            (Def.’s Br. at 26.) Defendant attempts to distinguish his case
      MR. WILLIAMS: We will, your Honor.                                   from United States v. Ledezma, 26 F.3d 636 (6th Cir. 1994),
      THE COURT: You’re going to raise entrapment?                         where this Court held that in order to prove aiding and
      MR. WILLIAMS: Yes.                                                   abetting, the government must show that the defendant knew
      THE COURT: Okay. Well then, we’ll leave that in.                     the principal possessed a controlled substance with the intent
    And you indicated the defendant is still intending to                  to distribute it, and that the defendant assisted in the
    testify?                                                               principal’s plan to deliver the controlled substance. Id. at 641
                                                                           (citation omitted). “[T]he essence of the crime of aiding and
                                                                           abetting is the defendant’s offering assistance or
                                                                           encouragement to his principal in the commission of a
     1                                                                     substantive offense.” Id. at 642 (citations omitted).
     Subsequent to the trial, Mr. Johnson pled guilty and the indictment
against Ms. Webber was dismissed.
12       United States v. Webber                            No. 98-1708         No. 98-1708                      United States v. Webber           5

justice if he testified at trial and was found guilty by the                         MR. WILLIAMS: Yes, he is, your Honor.
jury[.]” (Def.’s Br. at 18.) Defendant concludes that the                            THE COURT: Okay. Have you apprised the defendant
timing of the trial court’s colloquy and the Defendant’s                          – I ask this not to try to chill his or in any way inhibit him
decision soon thereafter not to testify creates a “presumption”                   from testifying, if he wants to, but have you informed
that the trial court “encouraged the Defendant to forego his                      him that if he testifies and if he’s convicted and the
fundamental and personal right to testify on his own behalf,                      government moves for an enhancement based on perjury,
thereby impermissibly chilling the Defendant’s exercise of his                    that I’ll have to make a decision about that and that
constitutional rights.” (Def.’s Br. at 24.)                                       would have the effect of enhancing his sentence?
                                                                                     MR. WILLIAMS: We have not talked specifically
  While we are mindful that excessive judicial interference                       about that. We will.
with a Defendant’s strategic decision regarding the right to                         THE COURT: You should tell him about the
testify constitutes a “danger [that] is of great significance                     ramifications about that. I wouldn’t want him to be
because the right not to testify counterpoises the right to                       surprised –
testify, and the exercise of one is the waiver of the other”,                        I can tell you. Mr. Weber [sic], let me just tell you.
Joelson, 7 F.3d at 178, the trial court’s instruction here was                    Under fairly recent Supreme Court law and under the
neither excessive nor so egregious that Defendant’s ability to                    guidelines, if a defendant takes the stand and testifies and
knowingly and intentionally waive his right to testify was                        is subsequently convicted, and if the government moves
impaired. Id. Rather than a “veiled threat,” the trial court’s                    for an enhancement, meaning an increase in the sentence
instruction was a non-coercive explanation of the law.4 The                       based on perjury by the defendant during his testimony at
court emphasized that it was not trying “in any way” to “chill”                   trial, I have to make a judgment as to whether or not the
or “inhibit” Defendant’s decision whether to testify, but rather                  defendant’s testimony was in fact perjurious and if it
“inform him”of the requirements of the sentencing guidelines.                     was, then I have to enhance. I don’t tell you this to try to
In addition, Defendant had ample opportunity to confer with                       inhibit you from testifying. If you want to testify,
his attorney after the trial court’s statements--in fact, the                     obviously that’s your prerogative. I tell you this only so
luncheon recess occurred right after the discussion took place-                   that you understand that if you testify, and you’re
-and Defendant did not make any objection that he wanted to                       subsequently convicted and if the government moves for
testify. There is not a scintilla of evidence of judicial                         an enhancement based on perjury, then I’ll have to make
intimidation, threat, or overbearance in the record.                              a judgment about that, and then if I find you perjured
Defendant’s claim is totally without merit and is denied.                         yourself, then your sentence would be enhanced. Do you
                                                                                  understand that?
                                                                                     THE DEFENDANT: Yes, I do, your honor.
                                                                                     THE COURT: All right.

     4                                                                             At the close of the government’s case, Defendant’s counsel,
      In order for a trial court to enhance a defendant’s sentence pursuant     at a sidebar discussion, moved to dismiss count four of the
to USSG § 3C1.1 for obstructing justice because of perjury, “the district       indictment pursuant to Federal Rule of Civil Procedure 29,
court must fulfill two requirements; first, it must identify those particular
portions of the defendant’s testimony that it considers to be perjurious,       alleging there was insufficient proof to sustain a guilty verdict
and second, it must either make specific findings for each element of           regarding the December 13, 1994, purchase of crack cocaine.
perjury or at least make a finding that encompasses all of the factual          The trial court denied the motion. The following dialogue
predicates for a finding of perjury.” United States v. Sassanelli, 118 F.3d     took place at that sidebar and on the record:
495, 501 (6th Cir. 1997) (inner quotes and citations omitted).
6      United States v. Webber                      No. 98-1708    No. 98-1708                     United States v. Webber       11

      MR. WILLIAMS: Your Honor, first thing I wanted to               If this Court is determined to adhere to the majority rule
    mention was that we’ve changed our approach. We no             that a trial court is not required to put defendant’s choice to
    longer want the entrapment instruction given. Also             testify on the record, Defendant argues, then it should apply
    [Defendant] is not going to testify.                           the Third Circuit’s exception to the rule: “[I]n exceptional,
      ....                                                         narrowly defined circumstances, judicial interjection through
      THE COURT: . . . All right. He’s not going to testify?       a direct colloquy with the defendant may be required to
      MR. WILLIAMS: No, he’s not going to testify.                 ensure that the defendant’s right to testify is protected.”
      ....                                                         Pennycooke, 65 F.3d at 12. The Pennycooke court’s
      THE COURT: . . . What do you want to do? It’s only           illustration of an “exceptional circumstance” was a defendant
    2:30.                                                          who repeatedly interrupted the trial to express his desire to
      MR. WILLIAMS: We’re going to rest.                           testify and interjected that his attorney was lying when his
      THE COURT: Do you want to go right into closing?             attorney told the court that the attorney and the defendant had
      MR. WILLIAMS: Can you give us about fifteen                  made a joint decision that the defendant would not testify. Id.
    minutes to get organized a little bit? I didn’t expect to      at 12 (citing Ortega v. O’Leary, 843 F.2d 258 (7th Cir.
    get there this fast.                                           1988)). This is not such a case.
      THE COURT: You may want to have Mr. Weber [sic]
    put on the record that he’s decided not to testify, after we      In the case at hand, there is no evidence that Defendant
    send the jury out.                                             either made an open expression of his desire to testify or had
      MR. WILLIAMS: Okay. Very well.                               any desire whatsoever to take the witness stand in his trial, let
      THE COURT: You may want to do that. It would                 alone any evidence that Defendant’s counsel or the trial court
    probably be a good idea.                                       ignored Defendant’s desire to exercise his right to testify. In
      MR. WILLIAMS: I think so.                                    fact, Defendant concedes in his Brief to this Court that
         (Sidebar concluded.)                                      “before the [court’s] admonition Mr. Webber planned to
                                                                   testify; shortly after the admonition Mr. Webber changed his
  Immediately after the sidebar concluded, the following took      mind and decided not to testify.” (Def.’s Br. at 24.) There is
place in open court, on the record, and in the presence of         no evidence in the record that Defendant attempted to
Defendant.                                                         communicate with and “alert the trial court” to a disagreement
                                                                   with defense counsel regarding whether Defendant should
      THE COURT: All right, the government rests, Mr.              take the stand. The trial court had no duty, under the facts
    Williams.                                                      presented here, to inquire sua sponte whether Defendant was
      MR. WILLIAMS: The defense rests, your Honor.                 knowingly, voluntarily, and intelligently waiving his right to
      ....                                                         testify. In sum, Defendant’s claim fails.
         (Jury exited at 2:32 p.m.)
      THE COURT: Okay, about 15, 20 minutes?                         Next, Defendant argues that the colloquy between the trial
      Okay, in that case since Mr. Weber [sic] is not              court and Defendant regarding the potential for a sentencing
    testifying, I’m going to take out the instructions on the      enhancement amounted to an unconstitutional “chilling” of
    defendant’s testimony as well as the impeachment of            his right to testify. Defendant contends that the trial court
    defendant by prior convictions. And I should probably          improperly interjected itself into the defense team’s strategic
    take out, as well, the entrapment instruction.                 and tactical decisions and gave him “what was essentially a
      MR. WILLIAMS: Yes, your honor.                               veiled threat to find [him] guilty of perjury and obstruction of
10       United States v. Webber                           No. 98-1708         No. 98-1708                    United States v. Webber         7

   A defendant who wants to testify can reject defense                             THE COURT: Have you had a chance to review the
counsel’s advice to the contrary by insisting on testifying,                     instructions, Mr. Williams?
communicating with the trial court, or discharging counsel.                        MR. WILLIAMS: Yes, I’ve had an opportunity to
Joelson, 7 F.3d at 177. At base, a defendant must “alert the                     review the instructions and I have discussed them with
trial court” that he desires to testify or that there is a                       Mr. Weber [sic], your Honor.
disagreement with defense counsel regarding whether he                             THE COURT: Are they satisfactory now with these
should take the stand. Pelzer, 1997 WL 12125 at *2. When                         changes that we discussed before lunch break and now
a defendant does not alert the trial court of a disagreement,                    with the changes that I’m making now, to take out the
waiver of the right to testify may be inferred from the                          entrapment instruction, the instruction on the defendant’s
defendant’s conduct. Waiver is presumed from the                                 testimony and the impeachment by defendant by prior
defendant’s failure to testify or notify the trial court of the                  convictions.
desire to do so. Joelson, 7 F.3d at 177.                                           MR. WILLIAMS: Yes, your Honor.
                                                                                   THE COURT: Okay. Very good.
   In the matter at hand, Defendant urges this Court to reject
the reasoning in our earlier unpublished opinions and the                         Defendant was not asked personally by the trial court
opinions of the majority of other circuit courts as “fatally                   whether he wanted to testify or whether he was aware that his
flawed” and hold that waiver of the right to testify--like some                attorney, at the sidebar, had waived Defendant’s right to
other fundamental rights--must be3 made on the record by the                   testify after previously informing the court that Defendant
trial court. We decline to do so. While we recognize that                      intended to testify. Although the court and defense counsel
trial courts are required to inquire directly of the defendant in              discussed in open court Defendant’s decision not to testify
regard to whether the defendant is knowingly and                               and changes in the jury instructions, Defendant was never
intentionally entering a plea of guilty, waiving a jury trial, or              asked to personally comment on this change in trial strategy
foregoing the assistance of counsel, see Ortiz, 82 F.3d at                     or put his decision not to testify on the record. Defendant was
1070-71 (citing Supreme Court cases), we are convinced that                    present in court and heard his attorney agree with the trial
the right to testify “qualitatively differs” from those rights in              judge’s comments relating to the Defendant not testifying and
that a sua sponte inquiry from the trial judge regarding the                   the Defendant not proceeding with an entrapment defense.
defendant’s choice to testify might impede on an appropriate                   Defendant never objected to this defense tactic or attempted
defense strategy, might lead the defendant to believe that                     to alert the court that he desired to testify.
defense counsel has been insufficient, or might
inappropriately influence the defendant to waive the Fifth                       The jury returned a verdict of guilty on all four counts on
Amendment right not to testify. See United States v.                           November 18, 1997. Defendant was sentenced on May 22,
Pennycooke, 65 F.3d 9, 11 (3d Cir. 1995).                                      1998, and ordered to serve 210 months incarceration
                                                                               concurrently on each count. Judgment was imposed on May
                                                                               22, 1998, but not entered until June 16, 1998. Defendant filed
                                                                               his timely appeal on June 1, 1998.
     3
     We recognize that our unpublished opinions carry no precedential
weight; they often do, however, carry persuasive weight. See Sheets v.
Moore, 97 F.3d 164, 167 (6th Cir. 1996) (noting that unpublished
opinions carry no precedential weight and have no binding effect on
anyone other than the parties to the action); 6 CIR. R. 206(c) (stating that
only published opinions are binding on subsequent panels).
8     United States v. Webber                       No. 98-1708       No. 98-1708                          United States v. Webber            9

                           Discussion                                 Joelson, 7 F.3d at 177. The defense counsel’s role is to
                                                                      advise the defendant whether or not the defendant should take
I.   Jurisdiction                                                     the stand, but it is for the defendant, ultimately, to decide.
                                                                      See Pelzer, 1997 WL 12125 at *2 (citation omitted).
  This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1291 and Federal Rules of Appellate Procedure 3                 Although the ultimate decision whether to testify rests with
and 4(b).                                                             the defendant, when a tactical decision is made not to have
                                                                      the defendant testify, the defendant’s assent is presumed.
II. The Right to Testify                                              Joelson, 7 F.3d at 177. This is so because the defendant’s
                                                                      attorney2 is presumed to follow the professional rules of
   Defendant argues that his rights under the Fifth and Sixth         conduct and is “strongly presumed to have rendered adequate
Amendments to the Constitution were violated when (1) his             assistance” in carrying out the general duty “to advocate the
right to testify on his own behalf was waived by his attorney         defendant’s cause and the more particular duties to consult
and, (2) the trial court impermissibly “chilled” his right to         with the defendant on important decisions and to keep the
testify.     We review de novo whether Defendant’s                    defendant informed of important developments in the course
constitutional rights were violated at the trial stage of his         of the prosecution.” Strickland v. Washington, 466 U.S. 668,
proceedings.                                                          688-90 (1984). Barring any statements or actions from the
                                                                      defendant indicating disagreement with counsel or the desire
   The right of a defendant to testify at trial is a constitutional   to testify, the trial court is neither required to sua sponte
right of fundamental dimension and is subject only to a               address a silent defendant and inquire whether the defendant
knowing and voluntary waiver by the defendant. See Rock v.            knowingly and intentionally waived the right to testify, nor
Arkansas, 483 U.S. 44, 52, 53 n.10 (1987); Pelzer v. United           ensure that the defendant has waived the right on the record.
States, 105 F.3d 659 (table), 1997 WL 12125, at *2 (6th Cir.          Joelson, 7 F.3d at 177. See also United States v. Ortiz, 82
Jan. 13, 1997); United States v. Joelson, 7 F.3d 174, 177 (9th        F.3d 1066, 1069 n.8 (D.C. Cir. 1996) (noting the agreement
Cir. 1993). “The right to testify on one’s own behalf at a            of the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh
criminal trial has sources in several provisions of the               Circuits that the trial court does not have a duty to sua sponte
Constitution.” Rock, 483 U.S. at 51. It is a right that is            conduct an on-the-record colloquy regarding waiver); Knox v.
“‘essential to due process of law in a fair adversary process’”       Morris, 908 F.2d 973 (table), 1990 WL 106789, at *1 (6th
and thus falls under the protections of the Fifth and                 Cir. July 30, 1990) (holding that trial court has no duty to
Fourteenth Amendments. Id. (quoting Faretta v. California,            establish waiver on record); United States v. Yarbrough, 896
422 U.S. 806, 819 n.15 (1975)). The right to testify is also          F.2d 554 (table), 1990 WL 17263, at *2 (6th Cir. Feb. 27,
found in the Compulsory Process Clause of the Sixth                   1990) (same).
Amendment, which grants a defendant the right to call
“witnesses in his favor”--which, of course, would include
himself. Id. at 52 (citation omitted). In addition, the right to
testify is “a necessary corollary to the Fifth Amendment’s
                                                                          2
guarantee against compelled testimony.” Id.                                 See, e.g., ABA MODEL RULES OF PROFESSIONAL CONDUCT RULE
                                                                      1.2(a) & cmt. (1995) (“In a criminal case, the lawyer shall abide by the
    The right to testify is personal to the defendant, may be         client’s decision . . . whether the client will testify.”); ABA STANDARDS
                                                                      FOR CRIMINAL JUSTICE 4-5.2(a)(iv) (3d ed. 1993) (“whether to testify in
relinquished only by the defendant, and the defendant’s               his or her own behalf” is a decision “to be made by the accused after full
relinquishment of the right must be knowing and intentional.          consultation with counsel”).
