                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2216
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                 Malcolm Roy Evans

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                              Submitted: May 16, 2018
                              Filed: November 6, 2018
                                   ____________

Before BENTON, KELLY, and STRAS, Circuit Judges.
                           ____________

STRAS, Circuit Judge.

      A jury found Malcolm Roy Evans guilty of four offenses arising out of a bank
robbery. We affirm his convictions and sentence.
                                          I.

       A man armed with a sawed-off shotgun robbed a Wells Fargo branch in
Moorhead, Minnesota, and absconded with approximately $10,000. As he left the
bank, he jumped into the back of a van that he found parked near the bank’s front
entrance. The driver escaped and took her keys with her. The robber then fled on
foot. Soon thereafter, he carjacked someone else, who drove him at gunpoint to the
West Acres Mall in Fargo, North Dakota, right across the border from Moorhead.
Once there, the robber forced the driver out of the car and sped off. The police found
the car a short distance from the mall.

       Using security footage, the police identified Evans as the perpetrator. The day
after the robbery, they arrested him in Fargo as he left a Motel 6, where he was
renting two rooms. The police then obtained a warrant to search the rooms and found
over $2,000 in cash, a sawed-off shotgun, and items of clothing matching those the
bank robber had worn.

      The United States charged Evans with armed bank robbery, attempted
carjacking, carjacking, forcing a person to accompany him while attempting to avoid
apprehension, and kidnapping. 18 U.S.C. §§ 1201(e), 2113(a), (d)–(e), 2119(1). The
kidnapping charge was dismissed before trial. A jury found him guilty of the
remaining four counts, and the district court1 sentenced him to 360 months in prison.
Evans raises five arguments on appeal, which we address in the order they arose.




      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

                                         -2-
                                          II.

       Evans, in the first of his five arguments, challenges the sufficiency of the
affidavit underlying the search warrant, which he believes lacked probable cause.
The district court denied Evans’s motion to suppress the evidence found in the search
of his motel rooms. “In reviewing the denial of [a] motion to suppress, we review the
district court’s . . . legal conclusions de novo.” United States v. Ahumada, 858 F.3d
1138, 1139 (8th Cir. 2017). “Probable cause exists[] if under the totality of the
circumstances, a showing of facts can be made sufficient to create a fair probability
that evidence of a crime will be found in the place to be searched.” United States v.
Wallace, 550 F.3d 729, 732 (8th Cir. 2008) (per curiam) (internal quotation marks
and citation omitted).

       Evans argues that an affidavit from a detective who investigated the bank
robbery, which the police submitted as part of the search-warrant application, did not
adequately connect him to the crime. See United States v. Salter, 358 F.3d 1080,
1084 (8th Cir. 2004). In his view, the bank security footage relied upon by the
detective in investigating the robbery was insufficient to establish probable cause, and
the other evidence was too inconclusive to establish his identity as the bank robber.
We disagree.

      The affidavit contained a lot more than just conjecture about the identity of the
bank robber. It explained how the detective conducted the investigation, including
his examination of video footage from a local bus, which depicted a man whose
appearance was “consistent with” the bank robber. He then tracked the man’s
movements and discovered that the timelines of the bus passenger and the bank
robber matched. The bus passenger arrived at the bank shortly before the robbery,
and the same man later boarded a bus where the robber had abandoned the carjacking
victim. At least three people who knew Evans identified him from the bus footage.
Two of those people also said Evans owned a sawed-off shotgun, which was the

                                          -3-
weapon used to commit the crimes. Because the affidavit showed that Evans had the
means and opportunity to commit the crimes, it established a fair probability that he
was the bank robber.

       Evans also argues that even if there was reason to suspect he was the robber,
the affidavit did not establish that the police would find evidence in his motel rooms.
See United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). His argument is
unpersuasive. The bus footage showed a man identified as Evans, who had a
backpack, taking the bus from the West Acres Mall to a stop near the Motel 6. Evans
then boarded another bus a short time later, this time without the backpack. The
police knew Evans had two rooms at the Motel 6, so they could reasonably infer that
Evans went from the scene of the crime to the motel to hide his shotgun and the stolen
money. The police arrested Evans the next day as he was leaving the motel,
suggesting that both the weapon and the loot might still be inside. The affidavit
therefore established a “fair probability” that the police would find evidence from the
bank robbery in one or both of his motel rooms. Id. at 549.

                                          III.

       Evans’s second challenge focuses on the numerous letters he sent to the district
court, which he now characterizes as requests for new counsel. He says the district
court should have granted him a new attorney, even though he never actually asked
for one.

       Although their content varied, Evans’s letters primarily complained about his
attorney’s failure to share evidence with him. Some letters also focused on his
attorney’s decision not to pursue certain defense theories. At one point, he asked the
court to direct his legal team to “get on the ball.” The district court did not directly
respond to any of Evans’s letters.



                                          -4-
      At a pretrial hearing, however, the court inquired about the letters. Evans
responded:

      I’ve been wanting to do a speedy trial, but those issues are still those
      issues. I have still, in my opinion, not seen all of the evidence in my
      case. . . . I want to go on the record with that and let you all know that,
      and at the same time I will still proceed to trial on my case.

The court arranged for him to stay in the courtroom after the hearing and examine the
government’s exhibit book. But the court took no further action, and the case
proceeded to trial.

      On appeal, Evans argues that the district court should have treated his letters
as something they were not: motions for new counsel. He says the court should have
read between the lines and granted him relief, even though he did not use magic
words indicating that he wanted a new attorney.

       Because Evans never actually requested a new attorney or objected to the
court’s failure to give him one, we review only for plain error. See United States v.
Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc); Fed. R. Crim. P. 52. The
threshold requirement for relief under the plain-error standard is the presence of an
error and, under the circumstances of this case, there was none. See United States v.
White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011).

      It is not clear from Evans’s letters that he was requesting (or was entitled to)
new counsel. Indeed, even when the court asked Evans about the letters, he did not
request the appointment of new counsel. Instead, all he said was that his attorney
should have shown him the evidence in his case—relief the court then granted him
when it ordered the government to share its exhibit book. Under these circumstances,
the district court did not err, much less plainly err, in treating Evans’s letters as


                                         -5-
complaints about his lack of access to the evidence rather than as motions for the
appointment of new counsel.

                                          IV.

       Evans’s third challenge is to the in-court identification by the driver of the van
he attempted to carjack. He suggests that her identification was so prejudicial and
unreliable that it violated his due-process rights.

       When the driver took the stand, the prosecutor played security footage of the
suspect approaching her van. The driver then began gesturing toward the defense
table, where Evans was sitting. The prosecutor asked whether she could identify the
man who had tried to carjack her, and she pointed at Evans. Defense counsel did not
object to the testimony at the time. Only midway through the next day of trial did
defense counsel formally object and move for a mistrial. The court denied the motion
but prohibited the government from using the driver’s in-court identification in its
closing argument.

       On appeal, Evans renews his argument that the circumstances of the in-court
identification violated his due-process rights. In his view, the playing of the video
and the brief, panicked nature of the driver’s encounter with the suspect made the
driver’s identification particularly unreliable and prejudicial. See generally Neil v.
Biggers, 409 U.S. 188 (1972) (establishing the standard for due-process challenges
to eyewitness identifications).

       Before evaluating the substance of Evans’s argument, we must decide which
standard of review applies: plain-error or de-novo review. The parties disagree about
whether defense counsel’s objection the following day was timely. See Pirani, 406
F.3d at 549 (“An error by the trial court, even one affecting a constitutional right, is
forfeited . . . ‘by the failure to make timely assertion of the right.’” (emphasis added)

                                          -6-
(quoting United States v. Olano, 507 U.S. 725, 731 (1993))). We conclude that it was
not.

        An objection is timely only if it is made “at the earliest possible opportunity
after the ground of objection be[comes] apparent.” United States v. Shores, 700 F.3d
366, 370 (8th Cir. 2012) (citation omitted). Here, defense counsel’s objection the
next day came too late, long after the “earliest possible opportunity” had passed. Cf.
id. at 370–71 (holding that an evidentiary objection made “just prior to closing
arguments” was untimely). Defense counsel should have objected when the driver
identified Evans, not the next day, to properly preserve the alleged error.
Accordingly, plain-error review applies.

       The standard of review is decisive. We recently explained that the law is
unsettled on whether an in-court identification can violate due process without a
showing of misconduct by the government. See United States v. Shumpert, 889 F.3d
488, 490–91 (8th Cir. 2018) (recognizing a circuit split on the issue in light of Perry
v. New Hampshire, 565 U.S. 228 (2012)). Because Evans has not made a showing
of government misconduct, “the error he alleges is not plain under current law.” Id.
at 491.

                                          V.

       Evans’s fourth challenge centers on another witness acting unexpectedly—this
time, himself. When Evans took the stand to testify in his own defense, he
immediately started complaining about how he was being “railroaded,” including by
his own attorney. The district court cut him off and, after questioning him and
determining that he would make similar remarks if placed on the stand again, ruled
that he had forfeited his right to testify. Evans argues that these actions deprived him
of his constitutional right to testify in his own defense. See Rock v. Arkansas, 483
U.S. 44, 49–53 (1987).

                                          -7-
                                         A.

       At trial, the defense called Evans as its sole witness. Once sworn, Evans did
not wait for questions and immediately started cataloging his complaints with
everyone involved in his case, including his own attorney and the court. Evans did
not stop even after the court excused the jurors and instructed them to return to the
jury room. We reproduce the exchange in full:


       The Defendant:       Ladies and gentlemen, I am being railroaded,
                            by my attorney—

       Defense Counsel: Your Honor—

       The Defendant:       —and by my defense investigator.

       The Court:           Just a second. Mr. Evans?

       The Defendant:       They have not shown me all the evidence in
                            my case. I have written to this judge over
                            eight documents telling her that I have not seen
                            all the evidence in my case.

       The Court:           Mr. Evans?

       The Defendant:       The problem persists. I have written to the
                            chief prosecutor, I have written to the chief
                            judge, and I have written to the head lady over
                            the public defenders, all making them aware
                            that I have not seen all the evidence in my
                            case. This is a violation of my constitutional
                            rights.



                                         -8-
       The Court:            Members of the Jury—

       The Defendant:        How can I prepare—

       The Court:            —I’m going to ask that you proceed to the jury
                             room.
       The Defendant:        —my defense if they will not let me see the
                             evidence in my case[?] It’s a violation of my
                             rights. This is wrong. And this is the law?
                             This is a court of law? Really.

        With the jury out of the courtroom, the court asked Evans, “have you now said
what you wanted to say to the jury?” “No, ma’am,” he responded. “There’s so much
stuff I would like to say, Your Honor.”

      After an hour-long recess, the court asked Evans to limit his responses to
questions and follow the court’s instructions. Twice the court asked him whether he
could “come and testify and respond to questions and answers” or whether he would
“continue to tell the jury [his] complaints about the justice process and the people
involved in it as [he had] so far.” Each time he said that he would do “both.”

       The court explained to Evans that he needed to respond only to the attorneys’
questions so that it could “rule on objections and those sorts of things,” and that if he
would not comply, he could not testify. But Evans insisted that he had to air his
complaints during his testimony, regardless of the questions he was asked. After the
district court asked for the third time whether he would change his mind, he
responded with another rant, this time claiming that the district court’s inaction on his
letters had “forced” him to express his concerns directly to the jury. The court cut
him off and found “that if Mr. Evans were allowed to continue his testimony, the



                                          -9-
[c]ourt has no assurance that he would comply with the directives or the rules of
evidence.”

       Evans was not done. When the jury returned, the court gave a brief curative
instruction. As the jury was getting ready to leave the courtroom to deliberate, Evans
yelled, “[t]hey’re still railroading me. That’s not right. It’s not right.” The court
ordered Evans removed and then excused the jury for the day.

       The next morning, defense counsel moved for a mistrial based on Evans’s
outbursts. The court denied the motion and explained that “[t]he so-called second
incident . . . convinces me that the judgment that the testimony should be concluded
at this point with regard to forfeiture of the defendant’s right to testify further is
appropriate.” The trial concluded without Evans retaking the stand.

                                           B.

        Evans claims that the district court should have allowed him to retake the stand
and that its decision not to do so violated his constitutional right to testify in his own
defense. See Rock, 483 U.S. at 49–53. This right, though fundamental, “may, in
appropriate cases, bow to accommodate other legitimate interests in the criminal trial
process,” id. at 55 (citation omitted), including well-established rules of evidence,
Holmes v. South Carolina, 547 U.S. 319, 326 (2006). For example, criminal
defendants do not have the right to say anything they would like from the stand,
regardless of its relevance. Cf. id. at 326–27 (explaining that excluding testimony
that is only “marginally relevant” would not violate a defendant’s right to present a
complete defense (citation omitted)); Rock, 483 U.S. at 55 (discussing “the right to
present relevant testimony”).

      None of what Evans said during his brief time on the stand was relevant.
Relevant evidence makes a “fact [that] is of consequence in determining the action”

                                          -10-
“more or less probable than it would be without the evidence.” Fed. R. Evid. 401.
His negative feelings about his legal team and the criminal-justice system had nothing
to do with any of the facts needed to convict him of robbery or carjacking.

       Nevertheless, Evans claims that the district court should have done more to
determine whether his complaints were relevant before taking away his right to
testify. But he just kept repeating the same complaints that he had already described
in detail in the letters he had sent to the court. So the court did not need to do
anything more under the circumstances, such as hold a separate hearing or conduct
a sidebar with the attorneys. It already knew what Evans was going to say and had
enough information to evaluate whether it was relevant. Indeed, even now Evans has
trouble explaining the relevance of his complaints.

       It makes little difference on these facts that Evans expressed his willingness to
answer questions alongside his unsolicited and inflammatory remarks about his
attorney and the court. Witnesses—even criminal defendants at their own
trials—cannot expect to testify if they announce an intention to follow the rules every
now and then and openly flout them at other times. Evans had two options: he could
follow the evidentiary rules and limit himself to relevant testimony, or he could elect
not to testify at all. When he chose a third option—expressing his intention to
continue to willfully ignore the rules despite the court’s repeated warnings—he put
himself at risk of losing his right to testify entirely. See, e.g., United States v. Nunez,
877 F.2d 1475, 1478 (10th Cir. 1989) (“[T]he right to testify is not absolute and may
be waived by contumacious conduct.” (internal quotation marks and citations
omitted)); United States v. Ives, 504 F.2d 935, 941–42 (9th Cir. 1974) (holding that
a defendant may lose his right to testify due to disruptive conduct, because “such
conduct cannot be allowed when the defendant takes center stage on the witness
stand”), vacated on other grounds, 421 U.S. 944 (1975), opinion reinstated in
relevant part, 547 F.2d 1100 (9th Cir 1976) (per curiam). See generally Illinois v.
Allen, 397 U.S. 337, 343 (1970) (“We believe trial judges confronted with disruptive,

                                           -11-
contumacious, stubbornly defiant defendants must be given sufficient discretion to
meet the circumstances of each case.”).

        Of course, not every violation of the evidentiary rules or the court’s
instructions, no matter how accidental or trivial, justifies depriving a criminal
defendant of the right to testify. To the contrary, forfeiture of the right should be
limited to only the most defiant of defendants, and then only after the court explains
the consequences of continued defiance. Cf. United States v. Hellems, 866 F.3d 856,
864–65 (8th Cir. 2017) (recognizing that a trial court must first warn a defendant
before it can remove him from the courtroom for disruptive behavior); United States
v. Gillenwater, 717 F.3d 1070, 1081 (9th Cir. 2013) (“A defendant’s right to testify
. . . cannot be lost unless it is clearly necessary to assure the orderly conduct of the
trial.” (internal quotation marks and citation omitted)). But here, Evans persisted in
his view that he had the right to make irrelevant and highly inflammatory comments,
despite multiple warnings that continuing to do so would cost him his right to testify.
Once it became clear that Evans did not intend to follow the rules if placed back on
the stand, the court did not abuse its discretion in concluding that he had forfeited his
right to testify. Cf. Hellems, 866 F.3d at 863–64 (reviewing the decision to remove
an unruly defendant from the courtroom for an abuse of discretion).

                                           VI.

       Evans’s fifth and final challenge is to the calculation of his advisory sentencing
range, specifically the court’s addition of a two-level enhancement for obstruction of
justice. He says that nothing he did was part of an attempt to obstruct justice.

      As the district court prepared to give its final instructions to the jury, Evans had
yet another outburst. This time, he leapt onto the defense table with his arms above
his head—a feat described by the government at oral argument as “amazing”—and



                                          -12-
yelled, “[t]his is bullshit.” Marshals immediately subdued, handcuffed, and removed
him.

       With Evans gone, the defense moved for a mistrial. This brought the total
number of mistrial motions to four. The first was in response to the driver’s in-court
identification of Evans. The second occurred approximately an hour after Evans’s
attempt to testify. He argued then that his own behavior had irreparably prejudiced
the jury. The third followed his second outburst—“[t]hey’re still railroading me.
That’s not right. It’s not right.”—and relied on the same justification. The court
denied the fourth motion, just as it had the previous three.

       Those motions, along with Evans’s misbehavior at trial, proved significant at
his sentencing hearing. Over his objection, the district court found that Evans had
attempted to cause a mistrial with his final outburst. It then imposed a two-level
enhancement for “willfully . . . attempt[ing] to obstruct or impede[] the administration
of justice with respect to the . . . prosecution . . . of the instant offense of conviction.”
U.S.S.G. § 3C1.1. With the obstruction-of-justice enhancement included in his
offense level, Evans’s Guidelines range rose to 360 months to life in prison. The
court imposed a 360-month sentence.

      Evans argues that the evidence did not support a finding that he had tried to
cause a mistrial. To impose the enhancement, the court had to find by a
preponderance of the evidence that his intent was to interfere with the prosecution of
his case. See United States v. Simms, 285 F.3d 1098, 1101 (8th Cir. 2002). “We
review a district court’s factual findings underlying an obstruction of justice
enhancement for clear error.” United States v. Nichols, 416 F.3d 811, 821 (8th Cir.
2005).

      In imposing the enhancement, the district court observed, “looking back at the
record and the sequence of events, I’m convinced [Evans’s final, table-jumping

                                            -13-
outburst] was an attempt to ramp up efforts to declare a mistrial and start the case all
over again.” Defense counsel had already moved for a mistrial after both of Evans’s
previous outbursts, and his conduct had only gotten worse from there, even as the
court had repeatedly warned him to behave. From this evidence, the court could have
reasonably concluded that Evans’s intent was to cause a mistrial and that he knew
further disruptive behavior could lead to one. It was no great leap for the court to
then conclude that Evans’s final outburst—the most dramatic of all—was an effort
to finally get one. Therefore, we hold that the court did not clearly err in imposing
the obstruction-of-justice enhancement.

                                         VII.

      Accordingly, we affirm the district court’s judgment.

KELLY, Circuit Judge, concurring in part and dissenting in part.

       The court concludes that the district court did not erroneously deny Evans the
right to testify in his own defense because none of what Evans said during his brief
time on the stand was relevant and there was no need to inquire further into Evans’s
planned testimony because the district court already knew what Evans was going to
say. But “questions of relevance and prejudice are for the District Court to determine
in the first instance,” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387
(2008), and the district court did not rule Evans’s planned testimony inadmissible for
lack of relevance.

        Rather, the district court found that “if Mr. Evans were allowed to continue his
testimony, [it had] no assurance that he would comply with the directives or the rules
of evidence,” and concluded that Evans could not “respond to questions in a question-
and-answer format.” A trial court may surely limit a defendant’s right to testify if he
fails to abide by the “well-established rules of evidence [that] permit trial judges to

                                         -14-
exclude evidence if its probative value is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes,
547 U.S. at 326. But here I respectfully disagree that the district court’s limited
findings support the complete exclusion of Evans’s testimony. See Rock, 483 U.S.
at 55–56 (“[R]estrictions of a defendant’s right to testify may not be arbitrary or
disproportionate to the purposes they are designed to serve.”).

       When he took the stand, Evans expressed, in narrative form, his frustrations
with the judicial process in general and his defense team in particular. The court calls
these initial comments “irrelevant and highly inflammatory.” In the context of a trial,
and if untethered to a defense to the charges, that may well be true. But Evans had
been trying to raise these issues with the court for several months. Evans wrote the
district court numerous times, expressing his concern that he was not able to see the
evidence against him and complaining that his counsel would not develop his defense
because he would not plead guilty, that his counsel would not investigate evidence
necessary to his defense, and that his defense team was aiding in his conviction. With
this backdrop, a ruling on his right to testify could not be divorced from these
previous, unsuccessful attempts to direct the district court’s attention to the
breakdown of the attorney-client relationship. Of course, counsel is not required to
“docilely” pursue whatever factual or legal argument a client requests, regardless of
its merit. Hunter v. Delo, 62 F.3d 271, 275 (8th Cir. 1995) (quoting United States v.
Moore, 706 F.2d 538, 540 (5th Cir. 1983)). But “[w]hen a defendant raises a
seemingly substantial complaint about counsel, the judge has an obligation to inquire
thoroughly into” the alleged problem. Smith v. Lockhart, 923 F.2d 1314, 1320 (8th
Cir. 1991) (cleaned up). It appears that the only time Evans’s concerns were
addressed was on the Friday before trial, when the district court asked the prosecutor
to make the trial exhibits available to Evans for his review. But this limited relief
failed to address the full scope of Evans’s repeated concerns.




                                         -15-
      There is little doubt that Evans made his unfortunate situation worse by his
own in-court behavior. And it is well within the district court’s discretion to require
adherence to rules and procedures, and to determine that some evidence is simply not
relevant. But for whatever reason, Evans’s pretrial concerns were never addressed.
Without an inquiry into those complaints and a more fulsome exploration into the
probative value of Evans’s planned testimony, the record is insufficient to warrant
excluding his testimony altogether.

      Accordingly, I respectfully dissent from Parts III and V of the court’s opinion.
I concur in Part II and would not reach the issues raised in Part IV and VI.
                        ______________________________




                                         -16-
