United States of America v. Shannon E. Williams, also known as Donald Jarmon, also known as Thumbs

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3437
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Shannon E. Williams, also known as Donald Jarmon, also known as Thumbs
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 12-1941
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
$1,000.00 refunded to Mango Creek Properties, Inc. from GBS Partners, Inc.
seized on January 28, 2010; $1,000.00 seized on December 22, 2009 from Spence
Escrow Company from an escrow account holding money for Deshawn
Hernandez; $85,120.00 in United States currency seized from safe deposit box
number 29 at Pinnacle Bank on December 18, 2009; $15,545.95 seized from
Pinnacle Bank Account No. 6912183410 in the name of Mango Creek Properties,
Inc. on December 18, 2009; $1,445.00 in United States currency delivered to
Terry Haddock by Deshawn Hernandez on May 27, 2009 and on July 6, 2009;
North 91.5 Feet, West 28 Feet, Lot 6, in the North 91.5 Feet of Lot 7, Block 4,
Parkers Addition, as surveyed, platted and recorded in Douglas County, Nebraska,
commonly known as 1923 N. 27th Street, Omaha, Nebraska, titled in the name of

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Shannon Williams; Lot 12, Block 2, Hitchcock's 1st Addition, an Addition to the
City of Omaha, as surveyed, platted and recorded in Douglas County, Nebraska,
commonly known as 3744 Lake Street, Omaha, Nebraska, titled in the name of
Shannon Williams; 3181 Pennington Cir. SW, Atlanta, Georgia, as surveyed,
platted and recorded in Fulton County, Georgia, commonly known as 3181
Pennington Cir. SW, Atlanta, Georgia, titled in the name of E Zone Investments,
LLC; Hastings & Heydens 3rd Add, Lot 14, Block 0, Lots 13 &82 x 120, as
surveyed, platted and recorded in Douglas County, Nebraska, commonly known as
2444 Browne Street, Omaha, Nebraska, titled in the name of Deshawn Hernandez;
Fairfax, Lot 216, Block 0 40 x 134, as surveyed, platted and recorded in Douglas
County, Nebraska, commonly known as 3721 N. 39th Street, Omaha, Nebraska,
titled in the name of Mango Creek Properties, Inc.; Mossman &Wilson Add, Lot
106, Block 0, Lot 106, Block 0, as surveyed, platted and recorded in Douglas
County, Nebraska, commonly known as 2205 N. 39th Street, Omaha, Nebraska,
titled in the name of Shannon Williams; Wilson Carl C2nd Add, Lot 20, Block 0
42 X 129.2, as surveyed, platted and recorded in Douglas County, Nebraska,
commonly known as 4527 N. 36th Avenue, Omaha, Nebraska, titled in the name
of E Zone Investments, LLC; Fontenelle Park, Lot 205, Block 0 40 X 130, as
surveyed, platted and recorded in Douglas County, Nebraska, commonly known as
3916 N. 42nd, Omaha, Nebraska, titled in the name of E Zone Investments, LLC;
Yale Place, Lot 49, Block 0EX S 5 Ft 40 X 98.2, as surveyed, platted and recorded
in Douglas County, Nebraska, commonly known as 3365 Erskine Street, Omaha,
Nebraska, titled in the name of E Zone Investments, LLC; West 38', East 76 Feet
of Lots 16 and 17, and Lot 18, Block 4, Lowe's Subdivision, as surveyed, platted
and recorded in Douglas County Nebraska, commonly known as 3106 Decatur
Street, Omaha, Nebraska, titled in the name of Latreise Anderson
lllllllllllllllllllll Defendants
------------------------------
Shannon E. Williams
lllllllllllllllllllllClaimant - Appellant
Violet Goodwin
-2-

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lllllllllllllllllllllInterested party
___________________________
No. 12-1949
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
$1,000.00 refunded to Mango Creek Properties, Inc. from GBS Partners, Inc.
seized on January 28, 2010; $1,000.00 seized on December 22, 2009 from Spence
Escrow Company from an escrow account holding money for Deshawn
Hernandez; $85,120.00 in United States currency seized from safe deposit box
number 29 at Pinnacle Bank on December 18, 2009; $15,545.95 seized from
Pinnacle Bank Account No. 6912183410 in the name of Mango Creek Properties,
Inc. on December 18, 2009; $1,445.00 in United States currency delivered to
Terry Haddock by Deshawn Hernandez on May 27, 2009 and on July 6, 2009;
North 91.5 Feet, West 28 Feet, Lot 6, in the North 91.5 Feet of Lot 7, Block 4,
Parkers Addition, as surveyed, platted and recorded in Douglas County,Nebraska,
commonly known as 1923 N. 27th Street, Omaha, Nebraska, titled in the name of
Shannon Williams; Lot 12, Block 2, Hitchcock's 1st Addition, an Addition to the
City of Omaha, as surveyed, platted and recorded in Douglas County, Nebraska,
commonly known as 3744 Lake Street, Omaha, Nebraska, titled in the name of
Shannon Williams; 3181 Pennington Cir SW, Atlanta, Georgia, as surveyed,
platted and recorded in Fulton County, Georgia, commonly known as 3181
Pennington Cir. SW, Atlanta, Georgia, titled in the name of E Zone Investments,
LLC; Hastings & Heydens 3rd Add, Lot 14, Block 0, Lots 13 &82 x 120, as
surveyed, platted and recorded in Douglas County, Nebraska, commonly known as
2444 Browne Street, Omaha, Nebraska, titled in the name of Deshawn Hernandez;
Fairfax, Lot 216, Block 0 40 x 134, as surveyed, platted and recorded in Douglas
County, Nebraska, commonly known as 3721 N. 39th Street, Omaha, Nebraska,
titled in the name of Mango Creek Properties, Inc.; Mossman &Wilson Add, Lot
106, Block 0, Lot 106, Block 0, as surveyed, platted and recorded in Douglas
County, Nebraska, commonly known as 2205 N. 39th Street, Omaha, Nebraska,
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titled in the name of Shannon Williams; Wilson Carl C2nd Add, Lot 20, Block 0
42 X 129.2, as surveyed, platted and recorded in Douglas County, Nebraska,
commonly known as 4527 N. 36th Avenue, Omaha, Nebraska, titled in the name
of E Zone Investments, LLC; Fontenelle Park, Lot 205, Block 0 40 X 130, as
surveyed, platted and recorded in Douglas County, Nebraska, commonly known as
3916 N. 42nd, Omaha, Nebraska, titled in the name of E Zone Investments, LLC;
Yale Place, Lot 49, Block 0EX S 5 Ft 40 X 98.2, as surveyed, platted and recorded
in Douglas County, Nebraska, commonly known as 3365 Erskine Street, Omaha,
Nebraska, titled in the name of E Zone Investments, LLC; West 38', East 76 Feet
of Lots 16 and 17, and Lot 18, Block 4, Lowe's Subdivision, as surveyed, platted
and recorded in Douglas County Nebraska, commonly known as 3106 Decatur
Street, Omaha, Nebraska, titled in the name of Latreise Anderson
lllllllllllllllllllll Defendants
------------------------------
Shannon E. Williams
lllllllllllllllllllllClaimant - Appellant
Violet Goodwin
lllllllllllllllllllllInterested party
___________________________
No. 13-1200
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
$1,000.00 refunded to Mango Creek Properties, Inc. from GBS Partners, Inc.
seized on January 28, 2010; $1,000.00 seized on December 22, 2009 from Spence
-4-

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Escrow Company from an escrow account holding money for Deshawn
Hernandez; $85,120.00 in United States currency seized from safe deposit box
number 29 at Pinnacle Bank on December 18, 2009; $15,545.95 seized from
Pinnacle Bank Account No. 6912183410 in the name of Mango Creek Properties,
Inc. on December 18, 2009; $1,445.00 in United States currency delivered to
Terry Haddock by Deshawn Hernandez on May 27, 2009 and on July 6, 2009;
North 91.5 Feet, West 28 Feet, Lot 6, in the North 91.5 Feet of Lot 7, Block 4,
Parkers Addition, as surveyed, platted and recorded in Douglas County, Nebraska,
commonly known as 1923 N. 27th Street, Omaha, Nebraska, titled in the name of
Shannon Williams; Lot 12, Block 2, Hitchcock's 1st Addition, an Addition to the
City of Omaha, as surveyed, platted and recorded in Douglas County, Nebraska,
commonly known as 3744 Lake Street, Omaha, Nebraska, titled in the name of
Shannon Williams; 3181 Pennington Cir SW, Atlanta, Georgia, as surveyed,
platted and recorded in Fulton County, Georgia, commonly known as 3181
Pennington Cir. SW, Atlanta, Georgia, titled in the name of E Zone Investments,
LLC; Hastings & Heydens 3rd Add, Lot 14, Block 0, Lots 13 &82 x 120, as
surveyed, platted and recorded in Douglas County, Nebraska, commonly known as
2444 Browne Street, Omaha, Nebraska, titled in the name of Deshawn Hernandez;
Fairfax, Lot 216, Block 0 40 x 134, as surveyed, platted and recorded in Douglas
County, Nebraska, commonly known as 3721 N. 39th Street, Omaha, Nebraska,
titled in the name of Mango Creek Properties, Inc.; Mossman &Wilson Add, Lot
106, Block 0, Lot 106, Block 0, as surveyed, platted and recorded in Douglas
County, Nebraska, commonly known as 2205 N. 39th Street, Omaha, Nebraska,
titled in the name of Shannon Williams; Wilson Carl C2nd Add, Lot 20, Block 0
42 X 129.2, as surveyed, platted and recorded in Douglas County, Nebraska,
commonly known as 4527 N. 36th Avenue, Omaha, Nebraska, titled in the name
of E Zone Investments, LLC; Fontenelle Park, Lot 205, Block 0 40 X 130, as
surveyed, platted and recorded in Douglas County, Nebraska, commonly known as
3916 N. 42nd, Omaha, Nebraska, titled in the name of E Zone Investments, LLC;
Yale Place, Lot 49, Block 0EX S 5 Ft 40 X 98.2, as surveyed, platted and recorded
in Douglas County, Nebraska, commonly known as 3365 Erskine Street, Omaha,
Nebraska, titled in the name of E Zone Investments, LLC; West 38', East 76 Feet
of Lots 16 and 17, and Lot 18, Block 4, Lowe's Subdivision, as surveyed, platted
and recorded in Douglas County Nebraska, commonly known as 3106 Decatur
Street, Omaha, Nebraska, titled in the name of Latreise Anderson
lllllllllllllllllllll Defendants
-5-

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------------------------------
Shannon E. Williams
lllllllllllllllllllllClaimant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska – Omaha
____________
Submitted: February 13, 2013
Filed: July 11, 2013
____________
Before SMITH, MELLOY, and BENTON, Circuit Judges.
____________
MELLOY, Circuit Judge.
Shannon Williams was indicted and convicted by jury of conspiring to
distribute and possess with the intent to distribute 1000 kilograms or more of
marijuana and of laundering the related proceeds. The indictment also contained a
criminal forfeiture count for certain real and tangible properties obtained as a result
of the conspiracy. After Williams's trial, both Williams and the government moved
to dismiss the forfeiture count—Williams with prejudice and the government without
prejudice—due to a procedural error. The district court denied Williams's motion and
granted the government's motion, and the government subsequently instituted a civil
in rem forfeiture action for the same properties. These consolidated cases pertain to
Williams's direct appeal of his criminal convictions and his appeal of the dismissal
motions pertaining to the criminal forfeiture count and the in rem civil action.
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For the reasons set forth below, we affirm the district court and deny relief to1
Williams in all respects.
I. Direct Appeal of Criminal Convictions
A. Factual Background2
Since at least as early as 2006, Williams was involved in a conspiracy to import
marijuana into the Omaha, Nebraska metropolitan area (the "marijuana conspiracy").
Williams met Richard Conway at a halfway house in 2006, and Conway subsequently
became involved in the marijuana conspiracy. Conway and several other individuals
were arrested in October 2008 in Omaha after they accepted delivery of a controlled
shipment of marijuana from another one of Williams's associates. Williams paid his
attorney, Eric Whitner, to represent Conway in connection with the marijuana
charges. Conway wanted to cooperate with the government, however, and agreed3
to provide information to law enforcement regarding Williams's involvement in the
marijuana conspiracy. Because Conway feared that Whitner would tell Williams
about his cooperation with the government, Conway wanted to speak to law
enforcement outside of Whitner's presence and began associating with attorney Terry
Haddock, whom Conway met through one of the other individuals arrested alongside
him in Omaha.
The Honorable Lyle E. Strom, United States District Judge for the District of1
Nebraska.
The facts underlying Williams's convictions are complex and involve several2
players, some who wore multiple hats at different points in time. Additional facts not
set forth immediately below will be discussed as they become relevant to the
individual issues raised on appeal.
Williams had previously paid a retainer to Whitner to represent Conway in3
connection with an unrelated firearm charge stemming from a July 2008 indictment.
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Conway believed that attorney Whitner was also involved in the marijuana
conspiracy, and attorney Haddock encouraged Conway to further cooperate with the
government by wearing a recording device during his next meeting with Whitner.
Conway recorded his next conversation with Whitner but refused to record any
further meetings because he believed that Whitner was suspicious of him. Whitner
subsequently arranged for Conway to be represented by a third attorney and shortly
thereafter withdrew as Conway's counsel; Haddock remained as Conway's co-
counsel.
Prior to withdrawing as Conway's counsel and throughout his representation
of Conway, attorney Whitner routinely smuggled a cell phone into the detention
center where Conway was being held for Conway to contact Williams. After Whitner
withdrew from representing Conway, attorney Haddock provided this same service
to Conway, who told Williams about Haddock. Detention-center officials were aware
that Haddock was providing Conway with a cell phone but allowed it because
Conway was continuing to cooperate with the government by providing information
about Williams.
In late 2008, Williams began contacting attorney Haddock directly. Williams
and Haddock discussed, inter alia, the marijuana charges pending against Conway.
In one conversation, Williams indicated that he intended to kill two key witnesses
against Conway; Haddock reported the threat to law enforcement. Williams also
asked Haddock on behalf of a friend (Dion) about the sentencing disparity between
"crack" cocaine and powder cocaine per the U.S. Sentencing Guidelines Manual, a
topic on which Haddock had written an academic research paper while in college.
Williams and Haddock also discussed a 2007 arrest warrant for Williams in Nebraska
for violating conditions of his supervised release. At all times, Williams was
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represented by either Whitner or his cocounsel, attorney Steve Lefler—not Haddock.4
In January 2009, Williams (through two of his associates) paid a total of $15,000 to
Haddock for legal services that Haddock provided to Conway and another one of
Williams's friends.
Williams was arrested in Arizona on January 16, 2009, for possessing with the
intent to sell several hundred pounds of marijuana, possessing drug paraphernalia,
and forgery. By the time law-enforcement officials in Nebraska learned of Williams's
arrest, and before the Nebraska authorities could alert the Arizona authorities that
Williams was wanted in Nebraska for violating his supervised release, Williams made
bail in Arizona under a fake name ("Donald Jarmon"). Attorney Haddock continued
to stay in contact with Williams and continued to pass along information to law
enforcement regarding Williams's whereabouts. On February 19, 2009, due in part
to Haddock's tips, Williams was arrested in Minnesota and subsequently transported
to Nebraska.
Haddock worked with law-enforcement officials to place Conway in a cell with
Williams so that Conway could extract more information from Williams regarding
Williams's involvement in the marijuana conspiracy. Haddock hoped that Conway's
cooperation would result in leniency for Conway, but law-enforcement officials made
no promises to either Haddock or Conway. On April 1, 2009, Conway recorded a
5 hour, 45 minute conversation with Williams in which Williams made incriminating
statements regarding the marijuana conspiracy.
Although Whitner had withdrawn as Conway's attorney, he continued to
represent Williams and brought a cell phone to Williams so that Williams could direct
operations for the marijuana conspiracy from inside the detention center. Williams
Whitner passed away in August 2009, at which time Lefler assumed the role4
of Williams's primary counsel regarding Williams's supervised-release violation.
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subsequently began to distrust Whitner and asked Conway if attorney Haddock would
bring a phone into the detention center for Williams to use. Williams agreed to pay
Haddock $1000 per month for the service. Haddock alerted the authorities about
Williams's offer, and authorities devised a plan to record Williams's phone
conversations to obtain information about the marijuana conspiracy. Haddock
testified at trial that he agreed to provide the cell-phone service to Williams because
he feared what would happen to him if he did not agree based on Williams's previous
threat to murder witnesses.
Haddock made a total of sixty-three visits to see Williams between April and
December of 2009, and each of those meetings occurred in the attorney–client
meeting room. Haddock repeatedly told Williams that he was not Williams's
attorney, but during some of Williams's phone conversations Williams referred to
Haddock as his attorney and Haddock did not correct him. The district court found
that Haddock did not correct Williams because Haddock believed that Williams was
referring to him as his attorney as a code for the person with whom Williams was
speaking to know that the phone calls were not being monitored and that he or she
could speak freely. During each of Haddock's visits to Williams, detention-center
officials knew that Haddock was operating as an informant on Williams and was not
Williams's actual attorney. Haddock, however, convinced Williams that the
detention-center officials thought that he was Williams's attorney and that was why
he was allowed to see Williams, even though Williams knew that Haddock was not
his attorney.
In June 2009, Haddock began helping Williams launder drug money through
a business entity, Mango Creek Properties. Williams paid Haddock $3000 for every
$50,000 that Haddock laundered, and Haddock surrendered to law enforcement all
funds that Williams paid to him.
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On December 16, 2009, Williams and ten other individuals were indicted for
conspiring to distribute and possess with the intent to distribute 1000 kilograms or
more of marijuana in violation of 21 U.S.C. §§ 841 and 846 ("Count I") and money
laundering in violation of 18 U.S.C. §§ 2 and 1956 ("Count II"). The indictment also
included a criminal forfeiture count pursuant to 21 U.S.C. § 853 for certain of
Williams's real and tangible properties obtained as a result of the Count I conspiracy.
A substantively identical superseding indictment issued July 20, 2010.
Prior to trial, Williams moved to dismiss the indictment or, alternatively,
suppress the statements that he made to attorney Haddock; the district court denied
Williams's motion. Williams also moved to suppress statements that he made to
Conway on April 1, 2009; the district court denied that motion as well.
A jury convicted Williams on April 28, 2011, of Count I and Count II of the
superseding indictment. Williams was sentenced to 480 months' imprisonment and
ten years of supervised release for the Count I conviction, and 240 months'
imprisonment and three years of supervised release for the Count II conviction, to run
concurrently.
On appeal, Williams raises three principal arguments pertaining to his
convictions. First, Williams contends that the district court erred by not granting his
motion to dismiss the indictment or, alternatively, suppress the statements that he
made to Haddock. Williams next argues that the district court erred by denying his
motion to suppress the government's recording of his April 1, 2009 conversation with
Conway. Finally, Williams claims that the district court's trial conduct created a
judicial bias in the jury against Williams. We address each argument in turn below.5
This Court granted leave to Williams to file a pro se brief in which Williams5
raised several additional arguments pertaining to his convictions. We have
considered those arguments and address them below at Part I.E of this opinion to the
extent that they warrant discussion.
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B. Motion to Dismiss the Indictment and Suppress Statements to Haddock
Williams asserts that the district court erred by not dismissing the superseding
indictment or, alternatively, by not suppressing statements that he made to attorney
Haddock. Specifically, Williams claims that the government engaged in outrageous
conduct by "hijacking" his attorney–client relationship with Haddock and "making
defense counsel an agent of the prosecution," thus violating his Due Process rights.
See United States v. Searcy, 233 F.3d 1096, 1101 n.3 (8th Cir. 2000) ("The claim of
outrageous government conduct rests on the Due Process Clause of the Fifth
Amendment." (citing United States v. Russell, 411 U.S. 423, 431–32 (1973))). On
a motion to dismiss an indictment for outrageous government conduct, this Court
reviews the district court's legal determinations de novo and reviews factual findings
for clear error. United States v. Nieman, 520 F.3d 834, 838 (8th Cir. 2008). These
same standards govern our review of a district court's decision on a motion to
suppress statements. United States v. Coleman,700 F.3d 329, 334 (8th Cir. 2012).
1. Legal Framework
"The defense of outrageous government conduct is similar to, although
different from, the defense of entrapment. Whereas the defense of entrapment
focuses on the predisposition of the defendant to commit the crime, the defense of
outrageous government conduct focuses on the government's actions." United States
v. Hunt, 171 F.3d 1192, 1195 (8th Cir. 1999) (emphasis added). "[T]he level of
outrageousness needed to prove a due process violation is quite high, and the
government's conduct must shock the conscience of the court." United States v.
King, 351 F.3d 859, 867 (8th Cir. 2003) (citation and internal quotation marks
omitted); United States v. Bugh, 701 F.3d 888, 894 (8th Cir. 2012) ("Outrageous
Government conduct requires dismissal of a charge 'only if it falls within the narrow
band of the most intolerable government conduct.'" (quoting United States v. Morse,
613 F.3d 787, 792–93 (8th Cir. 2010))); Hunt, 171 F.3d at 1195 ("[G]overnment
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agents 'may go a long way in concert with the individual in question without being
deemed to have acted so outrageously as to violate due process.'" (quoting United
States v. Kummer, 15 F.3d 1455, 1460 (8th Cir. 1994))).
This Court has not had occasion to opine on governmental intrusion into an
attorney–client relationship in the context of the Due Process Clause of the Fifth
Amendment. Cf., e.g., United States v. Tyerman, 701 F.3d 552, 559 (8th Cir. 2012)
(discussing a defendant's Sixth Amendment ineffective-assistance-of-counsel claim
based on governmental intrusion into an attorney–client relationship). The district
court noted, however, that other circuits have adopted a three-pronged test for
determining whether there is a "colorable claim of outrageousness pertaining to
alleged governmental intrusion into the attorney–client relationship." United States
v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996). That test requires the defendant alleging
an intrusion to prove the following: "(1) the government's objective awareness of an
ongoing, personal attorney-client relationship between its informant and the
defendant; (2) deliberate intrusion into that relationship; and (3) actual and substantial
prejudice." Id. (footnote omitted); see, e.g., United States v. Stringer, 535 F.3d 929,
941 (9th Cir. 2008) (applying Voigt's test); United States v. Kennedy, 225 F.3d 1187,
1195 (10th Cir. 2000) (same).
Of course, for there to be an intrusion into an attorney–client relationship, there
must first be an attorney–client relationship. When determining whether two parties
have formed such a relationship, this Court applies state law. See, e.g., Manion v.
Nagin, 394 F.3d 1062, 1068 (8th Cir. 2005); Macawber Eng'g, Inc. v. Robson &
Miller, 47 F.3d 253, 256 (8th Cir. 1995). In Nebraska—where Williams was indicted
and detained and where Haddock visited him at the detention center—"[a]n
attorney–client relationship is created when (1) a person seeks advice or assistance
from an attorney, (2) the advice or assistance sought pertains to matters within the
attorney's professional competence, and (3) the attorney expressly or impliedly agrees
to give or actually gives the desired advice or assistance." State ex rel. Stivrins v.
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Flowers, 729 N.W.2d 311, 317 (Neb. 2007). Williams, as the party alleging an
unconstitutional intrusion into an attorney–client relationship, bears the burden of
proving the relationship's existence. See Hollins v. Powell, 773 F.2d 191, 196 (8th
Cir. 1985) ("[T]he party who claims the benefit of the attorney–client privilege has
the burden of establishing the right to invoke its protection."); Greenwalt v. Wal-Mart
Stores, Inc., 567 N.W.2d 560, 566 (Neb. 1997). Whether an attorney–client
relationship exists is a factual determination that we review for clear error. United6
States v. Rouse, 410 F.3d 1005, 1010 (8th Cir. 2005).
2. Analysis
In considering Williams's claim of outrageous government conduct, the district
court stated that the facts of Voigt are "analogous to Williams'[s] . . . situation."
Williams, 2011 WL 1058920, at *12. A review of Voigt's facts, however, shows that
it is distinguishable for an important reason: the defendant in Voigt honestly believed
that the informant was his attorney and, in fact, the informant was the defendant's
attorney. See 89 F.3d at 1061–63 (detailing the dual roles of the defendant's attorney
as both counsel and informant, and noting that the government several times
admonished the defendant's attorney for what it perceived as a conflict of interests).
By contrast, the record in this case demonstrates that Williams did not honestly
believe that Haddock was his attorney, nor was Haddock acting as Williams's legal
It is unclear to us whether the district court found that an attorney–client6
relationship existed between Haddock and Williams. The district court noted that
"little evidence was produced at the hearing indicating that Haddock formed an
attorney–client relationship with Williams," United States v. Williams,
No. 8:09CR457, 2011 WL 1058920, at *14 (D. Neb. Mar. 21, 2011), but continued
to analyze the government's conduct under the Voigt test as though such a
relationship did exist. The district court appears to have grounded its determination
that there was no constitutional violation on the basis that the government did not act
outrageously, i.e., did intrude into an attorney–client relationship—not on the premise
that Haddock was never Williams's attorney. See id. at *18.
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counsel. As we explain below, because we do not believe that there was an
attorney–client relationship between Haddock and Williams, we need not proceed to
analyze Williams's claim under the Voigt test, as that test is wholly premised on an
attorney–client relationship existing in the first instance. See id. at 1067 & n.6.
We begin with the first prong of the Nebraska test for determining whether an
attorney–client relationship exists: "a person [must] seek[] advice or assistance from
an attorney." Flowers, 729 N.W.2d at 317. Williams claims that he satisfies this
requirement because he asked Haddock about the sentencing disparity between
"crack" cocaine and powder cocaine and, after he was arrested, asked Haddock about
the case against him regarding his supervised-release violation. Although Haddock
did talk to Williams about the sentencing disparity, these conversations were not
sufficient to establish an attorney–client relationship for several reasons. First,
Williams asked about the disparity for one of his friends (Dion)—who at the time was
in jail for being involved in a crack conspiracy—not for himself. While there is
nothing in the record showing that Williams ever reported back to Dion what
Haddock told him, we find it difficult to believe that these conversations "were not
intended to be disclosed to third persons." Id. (attorney–client privilege attaches only
where there is "a reasonable expectation that . . . discussions . . . were confidential").
Second, Williams's conversations with Haddock regarding sentencing for cocaine
took place in January 2009, i.e., before Williams was arrested in Minnesota and
subsequently detained in Omaha. We do not dispute Williams's claim that he and
Haddock communicated by telephone prior to his arrest or that, "[w]hile still a
fugitive, Mr. Williams developed a relationship with Terry Hadock"; we simply do
not think that Williams formed an attorney–client relationship with Haddock during
that time period. See In re Estate of Miller, 99 N.W.2d 473, 476 (Neb. 1959) ("[A]7
communication to be privileged from disclosure must relate to a professional matter
That is not to say that Williams and Haddock ever formed an attorney–client7
relationship at some later point in time; we do not believe that they did.
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and must have been made because of the relationship then existing of attorney and
client." (emphasis added)).
Finally, Williams concedes that his conversations with Haddock regarding the
sentencing disparities for different types of cocaine were among "a mix of social
exchanges and discussions regarding legal issues of importance to Mr. Williams."
Conversations of this nature do not suffice to form an attorney–client relationship.
See Restatement (Third) of the Law Governing Lawyers § 14 cmt. c (2000) ("[A]
lawyer may answer a general question about the law, for instance in a purely social
setting, without a client–lawyer relationship arising."). The same is true with respect8
to Williams's conversations with Haddock about his supervised-release violation.
The district court found that those conversations likewise consisted of "general legal
questions akin to what a non-lawyer would ask a lawyer at a party" and thus "were
not sufficient to form an attorney–client relationship." Williams, 2011 WL 1058920,
at *15. It does not follow that Haddock became Williams's attorney simply because
Williams might have "perceived Haddock to be someone with a competence within
the areas for which he sought counsel" and asked Haddock for generalized legal
information. See Sheinkopf v. Stone, 927 F.2d 1259, 1265 (1st Cir. 1991) ("To9
imply an attorney–client relationship, . . . the law requires more than an individual's
subjective, unspoken belief that the person with whom he is dealing, who happens to
The Nebraska Supreme Court frequently relies upon the Restatement (Third)8
of the Law Governing Lawyers. E.g., Thomas & Thomas Court Reporters, L.L.C. v.
Switzer, 810 N.W.2d 677, 683–84 & n.12, 13 (Neb. 2012); Hauptman, O'Brien, Wolf
& Lathrop, P.C. v. Turco, 735 N.W.2d 368, 374 & n.19 (Neb. 2007); State ex rel.
Counsel for Discipline v. James, 673 N.W.2d 214, 223 (Neb. 2004).
While not dispositive, we note that at all times when Haddock visited9
Williams at the detention center, Williams was represented by other counsel of record
for the violation of his supervised release. See supra note 4. While Haddock
appeared as the sole attorney for Conway at a proffer interview, there is no indication
in the record that Haddock ever represented Williams in an official capacity.
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be a lawyer, has become his lawyer."); see also Diversified Indus. v. Meredith, 572
F.2d 596, 612 (8th Cir. 1977) (en banc) (Henley, J., concurring in part and dissenting
in part) ("A communication is not privileged simply because one of the parties to it
is a lawyer.").
Notwithstanding our analysis above, the notion that Haddock and Williams
maintained an attorney–client relationship dissolves when we consider the subject
matter and nature of their conversations and dealings and the type of "assistance" that
Williams asked Haddock to provide to him. Williams asked Haddock to, inter alia,
(1) smuggle a cell phone and other contraband into the detention center for him in
violation of detention center's policy and in furtherance of the marijuana conspiracy;
(2) launder money for him; (3) receive money from various members of the marijuana
conspiracy for the purpose of laundering; and (4) transport money for him in
furtherance of the marijuana conspiracy. None of those activities "pertains to matters
within [Haddock's] professional competence" as an attorney, as opposed to a criminal
enabler. Flowers, 729 N.W.2d at 317; see In re BankAmerica Corp. Sec. Litig., 270
F.3d 639, 641 (8th Cir. 2001) ("[I]t is well established that the attorney–client
privilege 'does not extend to communications made for the purpose of getting advice
for the commission of a fraud or crime.'" (quoting United States v. Zolin, 491 U.S.
554, 563 (1989))). This holds true for communications even when an attorney–client
relationship does exist. See Estate of Miller , 99 N.W.2d at 477 ("Mere relation of
attorney and client does not, ipso facto, establish principle of attorney–client
privilege, and if circumstances do not imply confidentiality to a communication
between client and attorney the privilege does not attach . . . ." (alteration in original)
(quoting Cafritz v. Koslow, 167 F.2d 749, 751 (D.C. Cir. 1948)) (internal quotation
marks omitted); supra note 7.
Perhaps most telling of the fact that no attorney–client relationship ever formed
between Williams and Haddock is Williams's continued express disavowal of any
such relationship. For example, on April 22, 2009, the following exchange took place
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between Williams, Haddock, and one of Williams's friends on the phone that
Haddock provided to Williams:
HADDOCK: [Conway] said that you wanted me to stop
and see you once a week or so.
WILLIAMS: Yeah so I can use the phone. [Whitner]'s
unreliable.
. . .
WILLIAMS [to FRIEND]: I finally got this guy down here
to see me so I am able to call you . . . I got a new attorney
man . . . .
HADDOCK: I am not your attorney.
FRIEND: You got a new attorney?
WILLIAMS: No just a new friend.
The next day, Williams made the following statement in reference to Haddock to the
same friend: "[Haddock] does not represent [me and Conway], he is just a friend, he
is a lawyer who is a friend." While Haddock did not always correct Williams when
Williams told people that Haddock was his attorney, testimony revealed that
Williams's reference to Haddock as his attorney was a sort of code to alert people on
the other end of the phone that they could speak freely.
On July 29, 2009, after Williams had several times asked Haddock to smuggle
drugs and other contraband (in addition to the cell phone) into the detention center
for him, Haddock made up a story that one of the detention-center guards confronted
him about the number of visits he was making to Williams. Haddock told Williams
that he told the guard that he (Haddock) did not "appreciate an officer when I'm in
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conversation with my client walking through the door [to the clergy/counsel room]
without knocking." (Emphasis added.) Haddock used the "my client" language to
lead Williams to believe that the detention-center officials thought that Haddock was
acting as his attorney and that is why Haddock was allowed to visit him in the
attorney–client room, even though there was an understanding between Williams and
Haddock that Haddock was not Williams's attorney. Haddock later reiterated to
Williams after this exchange that he was not Williams's attorney. For example, on
August 21, 2009, Haddock told Williams, "You should be lucky that I am not your
attorney or I would be charging you by the hour." Williams acknowledged the nature
of their relationship, indicating that even if Haddock were his attorney, he "could
cover it." Then, on September 1, 2009, Haddock cautioned Williams by stating that,
"You have to be careful about telling people I'm your attorney."
Based on the above exchanges, we do not believe that Williams and Haddock
had a mutual understanding that an attorney–client relationship existed between them.
See, e.g., Gonzalez v. Union Pac. R.R. Co., 803 N.W.2d 424, 447 (Neb. 2011) (no
attorney–client relationship existed where no evidence was presented that the person
claiming existence of the relationship "understood herself to have such a relationship
with [the attorney]"); see also Swanson v. Ptak, 682 N.W.2d 225, 230–31 (Neb. 2004)
(no implied attorney–client relationship where lawyer's duties did not extend to the
person claiming the relationship, despite the fact that the person held a "unilateral
belief that [the attorney] was acting as her attorney" and such belief was "sincere").
For the reasons set forth above, we hold that Williams did not have an
attorney–client relationship with Haddock and therefore the government could not
have unconstitutionally intruded into any such relationship. Accordingly, the district
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court did not err in denying Williams's motion to dismiss the superseding indictment
or, alternatively, suppress statements that he made to Haddock.10
C. Motion to Suppress Statements to Conway
Williams's second argument on appeal is that district court erred in denying his
motion to suppress statements made to Conway. Specifically, Williams claims that
his statements to Conway "were not the result of an independent decision to waive
his previously asserted Fifth Amendment right to remain silent, but rather were [1] the
involuntary response to an untenable situation where he was placed in a confined
location with a government agent and subjected to questioning about [2] the very
conduct for which he had previously asserted his right to remain silent."11
Accordingly, we analyze the denial of Williams's motion to suppress on Fifth
Amendment and Sixth Amendment grounds.12
Williams also argues that the indictment should be dismissed, or that his10
statements to Haddock should be suppressed, because Haddock allegedly violated his
ethical obligations as an attorney, and such a violation constitutes outrageous
government conduct. Williams's attempt to equate an alleged ethical violation with
unconstitutional outrageous government conduct also fails. See United States v.
Nguyen, 250 F.3d 643, 646 (8th Cir. 2001) (holding that a "government informant's
breach of a treatment program's confidentiality requirement does not shock the
conscience").
The government concedes that Conway was acting as a government agent on11
April 1, 2009, when he recorded a nearly six-hour-long conversation with Williams.
We note that in the brief by Williams's counsel, the heading of the section12
challenging the statements to Conway alleges a violation of Williams's Fifth
Amendment right against self-incrimination, yet the standard of review references the
Fourth Amendment. We fail to understand how the allegations in that section
implicate Williams's Fourth Amendment right to be free from unreasonable search
and seizure. However, based on certain statements in that same section of the brief
by counsel, and out of an abundance of caution in view of Williams's decision to
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As previously noted, we review de novo the district court's legal determinations
on a motion to suppress and review factual findings for clear error. Coleman, 700
F.3d at 334. This Court will affirm the denial of a motion to suppress "unless the
decision lacks the support of substantial evidence, is based on an erroneous view of
the law, or [we are] left with a firm conviction that a mistake has been made." United
States v. Esquivias, 416 F.3d 696, 699 (8th Cir. 2005) (citation and internal quotation
marks omitted).
1. Fifth Amendment Challenge
The Fifth Amendment provides that no person "shall be compelled in any
criminal case to be a witness against himself." U.S. Const. amend. V. Here, Williams
argues that "[a]ny statements made to Mr. Conway . . . were not the product of [his]
free will but rather [were] a product of fear for personal safety and were not
voluntary." Specifically, Williams claims that Conway was a member of the "Crip"
gang, that Conway had authority over other gang members in their cell block, and that
Conway leveraged that authority to get information from Williams. "The test for
determining the voluntariness of a confession is whether the [government] extracted
the confession by threats, violence, or direct or implied promises, such that the
'defendant's will [was] overborne and his capacity for self-determination critically
impaired.'" United States v. Gannon, 531 F.3d 657, 661 (8th Cir. 2008) (alteration
in original) (quoting United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995)). "In
applying this test, we must consider the totality of the circumstances, including law-
enforcement officials' conduct and the defendant's capacity to resist pressure." Id.
"The government bears the burden of persuasion and must prove by a preponderance
proceed pro se, we also analyze (in addition to the Fifth Amendment claim) whether
Williams's Sixth Amendment right to counsel was violated when Conway questioned
him about the marijuana conspiracy without having an attorney present.
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of the evidence the voluntariness of the challenged statements." United States v.
Aguilar, 384 F.3d 520, 523 (8th Cir. 2004).
A review of the district court's factual findings does not reveal any coercion by
Conway or any law-enforcement officials, and Williams's briefs do not refer to
evidence of any such coercion beyond unsupported allegations. The majority of the
5 hour, 45 minute recorded conversation between Williams and Conway that took
place on April 1, 2009, occurred in Williams and Conway's cell without anyone else
present, and Conway did not make any threats or promises to Williams. Moreover,
testimony from the suppression hearing revealed that Conway had previously
withdrawn from the "Crip" gang and did not exude any influence over other detainees
on his and Williams's cell block, let alone the influence to strong-arm Williams into
divulging incriminating information to him. To the contrary, testimony demonstrated
many of the individuals on Williams and Conway's cell block admired Williams.
Stated plainly, the evidence fails to show that Williams was in any way coerced
into making incriminating statements to Conway. See Gannon, 531 F.3d at 661–62
(affirming denial of motion to suppress where "no credible evidence suggested that
[the defendant's] statements were involuntary" and the defendant's testimony was
"incredulous"). Accordingly, there is no Fifth Amendment violation.
2. Sixth Amendment Challenge
Williams also argues that he should have had counsel present before being
questioned by the government on charges for which he previously invoked his Fifth
Amendment right to remain silent. See Simmons v. Bowersox, 235 F.3d 1124, 1132
n.3 (8th Cir. 2001) ("To say that a person must clearly and consistently assert his
desire to remain silent does not mean that he must repeat his clearly asserted desire
to remain silent in order to halt continued questioning." (citation omitted)). Williams's
claim that he previously asserted his right to remain silent stems from his arrest in
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Arizona. That arrest pertained to charges of possessing marijuana for sale, possessing
drug paraphernalia, and forgery. By contrast, the offense about which Conway
questioned Williams in Nebraska, and for which Williams was subsequently indicted,
was conspiring to distribute and possess with the intent to distribute marijuana.
The Supreme Court in Texas v. Cobb held that "when the Sixth Amendment
right to counsel attaches, it . . . encompass[es] offenses that, even if not formally
charged, would be considered the same offense under the Blockburger test." 532 U.S.
162, 173 (2001). That test asks "whether each [offense] requires proof of a fact
which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932).
As is pertinent here, possessing a drug with the intent to distribute it is a separate and
distinct offense from conspiring to possess and distribute the drug. See Pinkerton v.
United States, 328 U.S. 640, 643 (1946) ("It has been long and consistently
recognized by the Court that the commission of the substantive offense and a
conspiracy to commit it are separate and distinct offenses.")); United States v. Frayer,
9 F.3d 1367, 1373 n.3 (8th Cir. 1993) ("To sustain a conviction for possession with
intent to distribute, the government must prove . . . that the defendant knowingly
possessed and intended to distribute an illegal drug. To convict a defendant of
conspiracy to distribute . . . the government must prove an agreement between two
or more people, including the defendant, for the purpose of engaging in distribution
of drugs." (citations omitted)).
Accordingly, because the offense about which Conway questioned Williams
is a different offense under Blockburger from the offense for which Williams invoked
his Fifth Amendment right to remain silent in Arizona, Williams's Sixth Amendment
right to counsel was not violated.13
We note one additional point regarding Williams's Sixth Amendment13
challenge. At the time that Conway questioned Williams in their cell, Williams had
not yet been charged with the Count I conspiracy offenses; rather, Williams was being
held at the detention center in Omaha for violating conditions of his supervised
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D. District Court's Trial Conduct
Williams's third argument pertains to the district court's alleged unfairness
towards him at trial before an empaneled jury. Specifically, Williams claims that the
district court's conduct "strayed from that of an impartial jurist and appeared to place
[the judge] in favor of the government's position." This Court reviews the district
court's trial management for an abuse of discretion. United States v. Rojas, 520 F.3d
876, 881 (8th Cir. 2008).
1. Exclusion of Audio Recordings
Williams's principal objection to the trial is that the district court unfairly
hurried him during his pro se presentation of evidence. Williams wanted to admit
into evidence 170 hours—more than four weeks' worth—of audio recordings, rather
than rely on the government's excerpts. The district court told Williams that "if you
feel that there's something wrong with [the government's] [excerpts], I'll give you the
opportunity to . . . add to them if you want," but the district court did not permit
Williams to play all 170 hours.
We first note that Williams, who tried the case pro se, was given access to and
presumably did listen to all 170 hours of the taped conversations. Yet, Williams has
not pointed to a single recorded comment or conversation that was not included in the
release. Accordingly, Williams's Sixth Amendment right to counsel for the
conspiracy charge had also not attached independent of any other charges. See Beck
v. Bowersox, 362 F.3d 1095, 1101 (8th Cir. 2004) ("[T]he Sixth Amendment right to
counsel attaches when the State initiates an adversary judicial proceeding 'by way of
formal charge, preliminary hearing, indictment, information, or arraignment.'"
(quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion))).
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excerpts submitted by the government and that supports his claim that an
attorney–client relationship existed between Haddock and him.14
Nevertheless, Williams asserts on appeal that "[i]t is troubling that Judge Strom
advised that he would not place the entirety of the recordings into evidence because
of the volume of material." We note, however, that "considerations of undue delay"
and "waste of time" are permissible reasons for a trial court to refuse to admit
evidence. United States v. Coutentos, 651 F.3d 809, 821 (8th Cir. 2011) (citing
Fed. R. Evid. 403). Moreover, Williams's request to add the entirety of the audio
recordings, after failing to take the district court up on its offer to supplement the
government's excerpts, is contrary to the proper procedure for admitting an excluded
conversation. United States v. Webber, 255 F.3d 523, 526 (8th Cir. 2001) ("[T]he
party urging admission of an excluded conversation must 'specify the portion of the
testimony that is relevant to the issue at trial and that qualifies or explains portions
already admitted.'" (quoting United States v. Sweiss, 814 F.2d 1208, 1212 (7th Cir.
1987))). Finally, Williams never provides any explanation as to how the additional
hours of audio recordings would have aided in his defense—only that it was error to
exclude them. Such an assertion, unaccompanied by an explanation of the alleged
resulting prejudice, is not sufficient to find an abuse of discretion. See Wilson v.
City of Des Moines, 442 F.3d 637, 641 (8th Cir. 2006) ("Only when the evidence
excluded is of such a critical nature that there is 'no reasonable assurance that the jury
would have reached the same conclusion had the evidence been admitted' has a
district court so abused its discretion." (quoting Stephens v. Rheem Mfg. Co., 220
F.3d 882, 885 (8th Cir. 2000))); cf. United States v. Wallette, 686 F.3d 476, 483 (8th
After this case was submitted, Williams filed a complaint against his appellate14
counsel for conceding at oral argument that he (counsel) did not independently listen
to the taped conversations in preparation for this appeal. We leave this issue for a
28 U.S.C. § 2255 proceeding, but note that to date, Williams, who has listened to the
tapes, has been unable to point to any portion of the tapes that would support his
position that Haddock maintained an attorney–client relationship with him.
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Cir. 2012) (denying the defendant's motion for a new trial and stating that "[e]ven if
Defendant's Exhibit . . . was not available to the jury during its deliberations, [the
defendant] has not established that the omission prejudiced him[]"); Saunders v.
United States, 236 F.3d 950, 953 (8th Cir. 2001) (no prejudice in ineffective-
assistance claim where the defendant "made no showing of what other witnesses were
available, how they would have testified, and why such additional evidence would
likely have affected the result" (emphases added)).
In view of the "great deference" that we accord to the district court regarding
the admissibility and probative value of evidence, United States v. Anderson, 446
F.3d 870, 873 (8th Cir. 2006), we do not believe that the district court abused its
discretion by refusing to allow Williams to play all 170 hours of audio recordings.
2. District Court's Remarks During Trial
Williams also claims that the district court made comments to him in front of
the jury that were a "rebuke" and that "reflect[ed] the general disdain in which Judge
Strom held Mr. Williams." These comments pertain primarily to Williams's pro se
presentation of evidence and, more specifically, to Williams's duplicative questioning
of witnesses. In particular, Williams points to several instances in which the district
court told him to "move on" to a different subject. Williams claims that these remarks
demonstrate a "loss of neutrality" and sent a "subtle signal of favoritism to the jury."
"[T]he balance [between a judge's comments and the overall fairness of trial] is
adversely tipped against the defendant in a criminal trial where the judge's role loses
its color of neutrality and tends to accentuate and emphasize the prosecution's case."
United States v. Lueth, 807 F.2d 719, 727 (8th Cir. 1986) (first alteration in original)
(citation and internal quotation marks omitted). Reversal is warranted where "the
court's comments throughout a trial are one-sided and interfere with a defendant's
case to such an extent that the defendant is deprived of the right to a fair trial."
United States v. Warfield, 97 F.3d 1014, 1027 (8th Cir. 1996).
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Williams relies on United States v. Singer, 710 F.2d 431 (8th Cir. 1983) (en
banc), for his argument that the district court "inappropriately injected itself into the
proceedings in such a way that calls into question whether the jury was impartial."
The facts of Singer, however, are materially distinguishable from this case. In Singer,
the district court actively participated in the defendants' trial to help the government
on substantive matters. For example, the district court assisted the prosecution in
making objections to defense counsel's questioning of witnesses, see id. at 433;
commandeered the prosecution's questioning of witnesses and gave "hint[s]" to the
prosecution regarding what questions to ask, see id. at 433–34; and conjured up
excuses for the prosecution when the government's attorney made a misstatement at
trial, id. at 435. In one instance, the district court stated that it had, up to that point
in time, been "try[ing] the Government's case for it," id. at 433 (internal quotation
marks omitted), and in another instance stated that it was "helping the Government
to try its case," id. at 435–36 (internal quotation marks omitted).15
After reviewing the record, we find no abuse of discretion in the district court's
attempts to avoid either duplicative evidence or Williams's unnecessarily lengthy
presentation of evidence, or both. In contrast to Singer, the district court's statements
This Court summarized the trial court's comments in Singer as follows:15
[M]ost of the court's interventions were designed to clarify
government testimony, to help government counsel, to
indicate to government counsel when he should or should
not make objections, to instruct government counsel on
how to make his evidence more intelligible, to suggest to
[government counsel] when he should stop the examination
of a witness, to indicate to [government counsel] what he
should write on a blackboard in order to illustrate a point
to the jury, and the like.
710 F.2d at 436.
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to "move on" that Williams claims demonstrate a bias against him pertain to trial
management and trial efficiency—not the substantive questioning of witnesses. See
Webber, 255 F.3d at 526 (noting the district court's "broad discretion to conduct the
trial in an orderly and efficient manner"); Harrington v. Iowa, 109 F.3d 1275,
1280–81 (8th Cir. 1997) (noting trial judges' "wide latitude in conducting their trials"
and that "comments . . . generally related to the management of a criminal trial" do
not "render the trial unfair in a constitutional sense"). Moreover, Williams concedes
that his pro se presentation of evidence was "more contentious and less artful . . . than
[that of] an attorney" and that at times his advocacy efforts may have "appeared
excessive." Yet, Williams claims that "Judge Strom's impatience with Mr. Williams,
as a pro se litigant, caused him to lose his perspective as a neutral figure." Williams
is correct that he is entitled to act his own attorney; however, that Williams chose to
proceed pro se does not entitle him to play by a different set of rules at trial, see
Saunders, 236 F.3d at 953 (no "special treatment" given to § 2255 petitioner based
on pro se status), and it is within the trial court's discretion to "impose reasonable
time limits on the presentation of evidence," Life Plus Int'l v. Brown, 317 F.3d 799,
807 (8th Cir. 2003).
Finally, beyond Williams's unsupported allegations, there is no evidence that
the district court, as "governor of the trial for the purpose of assuring its proper
conduct," Dranow v. United States, 307 F.2d 545, 572 (8th Cir. 1962) (quoting
Quercia v. United States, 289 U.S. 466, 469 (1933)), in any way improperly "colored"
the jury's verdict. See United States v. White, 557 F.3d 855, 858 (8th Cir. 2009) (no
abuse of discretion for district court's "admonitions that [defense] counsel keep his
questions relevant and proceed with his case"); United States v. Scott, 26 F.3d 1458,
1464–65 (8th Cir. 1994) (defendant's allegation that the district court appeared
"agitated" with him not sufficient to warrant new trial). Williams points to one
instance in which the district court stated to him, "You're not concerned about
anybody but yourself, I can see that." As Williams recognizes, however, this
comment was made during a sidebar and thus does not present the same concerns as
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the district court's comments in Singer, which were made primarily in front of the
jury. See 710 F.2d at 436 (expressing concern that "the jury could well have inferred
that the judge was siding with the government").
In sum, this was a very long, difficult, and contentious trial, made more16
difficult by Williams's pro se status. Williams's cross-examination of witnesses,
objections to testimony and exhibits, and presentation of evidence was often rambling
and repetitive. A review of the record shows that, rather than any bias, Judge Strom
demonstrated remarkable patience and a careful attention to Williams's rights in the
trial of this case. Accordingly, Williams's argument that the jury's verdict should be
set aside because of allegedly improper trial conduct fails.
E. Williams's Pro Se Arguments
In his separately filed pro se brief, see supra note 5, Williams raises several
additional issues not presented by his counsel pertaining to, inter alia, Williams's
motion to sever his trial from one of his coconspirators, the defense of entrapment,
and the admissibility of fingerprint cards. We address these arguments below.
Arguments that Williams raised in his pro se brief that are not discussed below have
been carefully considered by the Court and determined to be meritless. See, e.g.,
United States v. Minnis, 489 F.3d 325, 334 (8th Cir. 2007).
Williams's trial lasted eighteen days.16
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1. Motion to Sever Trial
Williams claims that the district court erred in not granting his motion to sever
his trial from that of Deshawn Hernandez, one of his coconspirators. The crux of17
Williams's argument is that he was prejudiced by Hernandez's testimony that
Williams abused her and coerced her into committing the crimes relating to the drug
conspiracy and money laundering. We review a district court's denial of a severance
motion for an abuse of discretion and reverse only upon a showing of "severe or
compelling prejudice." United States v. Mann, 685 F.3d 714, 718 (8th Cir. 2012)
(quoting United States v. Rimell, 21 F.3d 281, 289 (8th Cir. 1994)) (internal
quotation marks omitted). "Severe prejudice occurs when a defendant is deprived of
an appreciable chance for an acquittal, a chance that he would have had in a severed
trial." United States v. Koskela, 86 F.3d 122, 126 (8th Cir. 1996).
In United States v. Delpit, this Court stated the following:
The presumption against severing properly joined cases is
strong. . . . [C]o-defendants are often hostile to one
another, and one will try frequently to "point the finger," to
shift the blame, or to save himself at the expense of the
other. "Antagonistic" defenses require severance only
when there is a danger that the jury will unjustifiably infer
that this conflict alone demonstrates that both are guilty.
94 F.3d 1134, 1143 (8th Cir. 1996) (citation and internal quotation marks omitted).
Here, Williams has not even alleged (let alone demonstrated) that Hernandez's
testimony caused the jury to improperly impute her involvement in the marijuana
conspiracy to Williams; rather, Williams complains of Hernandez's testimony
regarding past incidents of physical abuse and statements that Williams allegedly
Hernandez was indicted for the same Count I and Count II offenses and was17
tried and convicted alongside Williams.
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made to her about a murder for which he was acquitted. While these statements may
not paint Williams in the best light as a caring and loving individual or law-abiding
citizen, they do not speak at all to the merits of the offenses for which Williams was
on trial—conspiracy to possess and distribute marijuana and money laundering—and
Williams has not shown that "the jury [was] unable to compartmentalize the
evidence" as between Hernandez and him. United States v. Mickelson, 378 F.3d 810,
818 (8th Cir. 2004); see United States v. Flores, 362 F.3d 1030, 1041 (8th Cir. 2004)
("A defendant does not have a right against having his codefendant elicit testimony
which may be damaging to him.").
Further, we note that the district court gave a limiting instruction that
Hernandez's testimony "may be considered only in connection with her defense of
coercion. It is not admissible to prove defendant Williams committed the crimes
alleged in Count I and Count II of the indictment." The court also instructed the jury
that it should "entirely disregard, and be uninfluenced by, any inclination toward a
personal prejudice against a defendant." Williams has not alleged that these
instructions were insufficient to "cure any risk of prejudice" due to the joint trial.
United States v. Kuenstler, 325 F.3d 1015, 1024 (8th Cir. 2003) (quoting Zafiro v.
United States, 506 U.S. 534, 539 (1993)) (internal quotation marks omitted)
(severance denied). Accordingly, the district court did not abuse its discretion in
denying Williams's motion to sever.
2. Entrapment
Williams also claims that the government entrapped him as a matter of law
into selling marijuana and laundering money. Specifically, Williams points to the
following conversation that he had with Haddock in the detention center:
HADDOCK: I got a friend [who] needs some weed, she
says it's a drought out there right now.
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WILLIAMS: Oh yeah?
HADDOCK: Yeah, be a good opportunity to make some
money.
WILLIAMS: I'm through selling weed. I've done enough.
HADDOCK: Well, as your business advisor[,] I'm telling
you this is a good time to be selling weed.
Williams also points to the following exchange at trial where Williams questioned
Haddock as a witness:
WILLIAMS: Tell the jury what things you offered to do for
me, Mr. Haddock, that I have said no to.
HADDOCK: I had offered to drive money down to Arizona
for you or bring drugs back and you had said no—up until
that time you had said no.
"The defense of entrapment recognizes that '[l]aw enforcement officers go too
far when they implant in the mind of an innocent person the disposition to commit the
alleged offense and induce its commission in order that they may prosecute.'" United
States v. Myers, 575 F.3d 801, 805 (8th Cir. 2009) (alteration in original) (emphasis
deleted) (quoting Jacobson v. United States, 503 U.S. 540, 553 (1992)). "A valid
entrapment defense involves two interrelated elements: [1] government inducement
of criminal conduct and [2] an absence of criminal predisposition on the part of the
defendant." Id. "Because the entrapment defense requires factual determinations
about government conduct and its likely effect upon a defendant, '[t]he question of
entrapment is generally one for the jury, rather than for the court.'" Id. (alteration in
original) (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)). Nevertheless,
"[w]e will conclude that the defendant was entrapped as a matter of law only if the
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evidence clearly shows [1] that 'the government agent developed the criminal plan
and [2] that the defendant was not predisposed to commit the crime independent of
the government's activities.'" Id. (emphases added) (quoting United States v.
Kurkowski, 281 F.3d 699, 701 (8th Cir. 2002)).
Without making a determination as to the inducement element, Williams's
entrapment argument fails for at least the reason that he cannot demonstrate that he
"was not predisposed to commit the crime[s] independent of the government's
activities." Mathews, 485 U.S. at 63; see, e.g., United States v. Young, 613 F.3d 735,
747–48 (8th Cir. 2010) (assuming inducement but denying relief based on a
determination that the defendant was predisposed); United States v. Berg, 178 F.3d
976, 980 (8th Cir. 1999) (same). "Predisposition, the principal element in the defense
of entrapment, focuses upon whether the defendant was an 'unwary innocent' or,
instead, an 'unwary criminal' who readily availed himself of the opportunity to
perpetrate the crime." Mathews, 485 U.S. at 63 (quoting Sherman v. United States,
356 U.S. 369, 372 (1958)) (internal citation and quotation marks omitted). Testimony
at trial revealed that Williams had been involved in a marijuana conspiracy since as
early as 2006, and it was not until 2009 that Haddock made his first visit to Williams
at the detention center. In view of Williams's criminal activity that occurred prior to
meeting Haddock and that pertained to the same offenses for which he was
subsequently indicted, the government has met its burden of proof that Williams was
predisposed to the subject criminal activity for purposes of entrapment. See Young,
613 F.3d at 747 ("Once government inducement is established by the defendant, the
burden shifts to the government to demonstrate beyond a reasonable doubt that the
defendant was predisposed to commit the crime.").
Accordingly, Williams's argument that he was entrapped as a matter of law into
committing the conspiracy and money-laundering crimes fails.
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3. Admission of Fingerprint Cards
Williams also claims that the district court erred by admitting into evidence
fingerprint cards from his arrest in Arizona under the alias "Donald Jarmon." At trial,
the government called James Brady, a fingerprint specialist from Omaha, Nebraska,
to testify that "Donald Jarmon's" fingerprints obtained in Arizona in January 2009
matched Williams's fingerprints (obtained from either his arrest in Minnesota or
previous run-ins with the law). Williams argues that his Confrontation Clause right
was violated when the government failed to present for cross-examination the person
who took "Donald Jarmon's" fingerprints in Arizona. Williams asserts that, absent
the fingerprint cards that allegedly tie him to the several hundred pounds of marijuana
that "Donald Jarmon" was caught possessing in Arizona, there would be a hole in the
government's case against him for the conspiracy charge. We review de novo the
district court's decision to admit evidence in the face of an objection based on the
Confrontation Clause. United States v. Lee, 374 F.3d 637, 643 (8th Cir. 2004).
In relevant part, the Sixth Amendment provides that, "In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him[.]" U.S. Const. amend. VI. In Crawford v. Washington, the Supreme
Court held that "[w]here testimonial evidence is at issue, . . . the Sixth Amendment
demands what the common law required: unavailability and a prior opportunity for
cross-examination." 541 U.S. 36, 68 (2004). The Court subsequently determined that
a statement is "testimonial" where its "primary purpose . . . is to establish or prove
past events potentially relevant to later criminal prosecution." Davis v. Washington,
547 U.S. 813, 822 (2006). The Court applied Crawford and Davis in Melendez-Diaz
v. Massachusetts and held that affidavits regarding the chemical composition of a
seized substance were "testimonial" and that the affiants (laboratory analysts) were
"witnesses" for purposes of the Confrontation Clause. 557 U.S. 305, 310, 311 (2009).
The Court reasoned that "not only were the affidavits made under circumstances
which would lead an objective witness reasonably to believe that the statement would
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be available for use at a later trial," but that "the sole purpose of the affidavits was to
provide prima facie evidence of the composition, quality, and the net weight of the
analyzed substance." Id. at 311 (internal citations and quotation marks omitted).
Shortly after, in Bullcoming v. New Mexico, the Court extended Melendez-Diaz's
holding and determined that the person who conducts a laboratory test—not merely
a colleague knowledgeable about the testing procedures and equipment used—must
be available for cross-examination to satisfy the Sixth Amendment's confrontation
requirement. __ U.S. __, 131 S. Ct. 2705, 2716 (2011) ("[Q]uestioning one witness
about another's testimonial statements [does not] provide[] a fair enough opportunity
for cross-examination.").
We do not believe that the Supreme Court's concerns regarding confrontation
in Melendez-Diaz and Bullcoming are present here with respect to the fingerprint
cards. Unlike the evidence in those cases, the fingerprint cards were created as part
of a routine booking procedure and not in anticipation of litigation, i.e., "for the
administration of an entity's affairs and not for the purpose of establishing or proving
some fact at trial." Melendez-Diaz, 557 U.S. at 324; see, e.g., United States v.
Diaz-Lopez, 403 F. App'x 199, 202 (9th Cir. 2010) ("The [fingerprint] card contains
only ministerial, objective observations[,] . . . was not created in anticipation of
litigation[,] and is not testimonial."). Our determination is bolstered by the fact that
the entity that took Williams's fingerprints—Arizona law enforcement—was unaware
that Williams was wanted in Nebraska in connection with the marijuana conspiracy
and, further, did not arrest Williams for conspiracy-related charges in Arizona. By
contrast, the excluded evidence deemed to be "testimonial" in both Bullcoming and
Melendez-Diaz and went straight to the heart of the offenses for which the petitioners
in those cases were respectively charged. See Bullcoming, 131 S. Ct. at 2709
(petitioner charged with driving while intoxicated and the evidence at issue was a
forensic report regarding the defendant's blood–alcohol level); Melendez-Diaz, 557
U.S. at 308 (petitioner charged with distributing and trafficking cocaine and the
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evidence at issue was "certificates of analysis" regarding the composition of seized
substance).
We conclude that the fingerprint cards are business records admissible pursuant
to Federal Rule of Evidence 803(6) because they were created "in the regular course
of business," Melendez-Diaz, 557 U.S. at 321–22, and not "solely for an 'evidentiary
purpose,'" Bullcoming, 131 S. Ct. at 2717. See, e.g., United States v. Mashek, 606
F.3d 922, 930 (8th Cir. 2010) (pseudoephedrine logs kept "in the ordinary course of
business" do not implicate Confrontation Clause). Accordingly, Williams's Sixth
Amendment Confrontation Clause right was not violated.
II. Forfeiture Claim
A. Factual Background
As we previously noted, the July 20, 2010 superseding indictment against
Williams included a criminal forfeiture count for certain real and tangible properties
obtained as a result of the marijuana conspiracy. Federal Rule of Criminal
Procedure 32.2(b)(5)(A) provides as follows:
In any case tried before a jury, if the indictment or
information states that the government is seeking
forfeiture, the court must determine before the jury begins
deliberating whether either party requests that the jury be
retained to determine the forfeitability of specific property
if it returns a guilty verdict.
(Emphasis added.) The district court did not comply with this Rule at trial,18
Rule 32.2(b)(5)(A) was amended on December 1, 2009 to place the burden18
on the court. Previously, the Rule read: "Upon a party's request in a case in which
the jury returns a verdict of guilty, the jury must determine whether the government
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however, and permitted the jury to begin deliberating without asking the parties
whether they wanted to retain the jury in the event that it would find Williams guilty.
On June 30, 2011, Williams moved to dismiss with prejudice the criminal
forfeiture count due to the district court's noncompliance with Rule 32.2(b)(5)(A).
The government opposed, and the district court denied Williams's motion. Then, on
October 21, 2011, the government moved to dismiss the criminal forfeiture count,
stating that it would seek forfeiture of the subject properties through a separate civil
proceeding. Williams opposed, and the district court granted the government's
motion without prejudice pursuant to Federal Rule of Criminal Procedure 48(a). The
government subsequently filed an in rem civil complaint against Williams's assets on
October 27, 2011, and on December 16, 2011, the government requested that the
district court enter a default judgment. The district court granted the government's
request on January 27, 2012, and entered a default judgment on March 9, 2012.
Williams now makes three arguments on appeal. First, Williams argues that
the district court erred in denying his motion to dismiss with prejudice the criminal
forfeiture account due to the district court's failure to comply with Rule 32.2(b)(5)(A).
Second, Williams argues that the district court erred in granting, without prejudice,
the government's motion to dismiss the criminal forfeiture count pursuant to
Rule 48(a). Third, Williams argues that even if the district court did not err regarding
the disposition of the two dismissal motions themselves, the government's in rem civil
proceeding against the same assets named in the criminal forfeiture count violates the
Double Jeopardy Clause. We address and reject each of Williams's arguments below.
has established the requisite nexus between the property and the offense committed
by the defendant." (Emphasis added.)
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B. Denial of Williams's Motion to Dismiss with Prejudice
The standard of review on a ruling regarding a motion to dismiss an indictment
varies based on the grounds for dismissal. Contrast United States v. Howe, 590 F.3d
552, 555 (8th Cir. 2009) (de novo review for dismissal based on double-jeopardy and
collateral-estoppel grounds), with United States v. Rodriguez, 414 F.3d 837, 842 (8th
Cir. 2005) (abuse-of-discretion review for dismissal based on false testimony
presented to grand jury). In this instance, we review de novo the district court's
dismissal of the indictment. United States v. Timley, 507 F.3d 1125, 1128 (8th Cir.
2007) (de novo review regarding district court's interpretation and application of the
federal forfeiture laws).
From our research on the issue, we have found only one decision—United
States v. Evick, 286 F.R.D. 296 (N.D.W. Va. 2012)—that has considered the
propriety of a defendant's motion to dismiss a forfeiture count after the trial court did
not comply with amended Rule 32.2(b)(5)(A) and that has facts similar to this case.19
The Ninth Circuit dealt with the same issue in United States v. Mancuso,19
__ F.3d __, Nos. 12-30174, 12-30201, 2013 WL 1811276 (9th Cir. May 1, 2013), but
based on nonanalogous facts. In Mancuso, the government brought to the court's
attention, after the jury announced a guilty verdict, the fact that Rule 32.2(b)(5)(A)
had not been followed, and defense counsel "stated that she 'understood' that the
district court [not the jury] would make the forfeiture decision." Id. at *13. The
district court then declined to grant forfeiture, and the government appealed. The
Ninth Circuit reversed, noting that "[t]he purpose of the 2009 amendment was to
avoid an inadvertent waiver of the right to a jury determination," id. (emphasis added)
(citation and internal quotation marks omitted), but that the defendant "did not
'inadvertently' waive his right to a jury determination of forfeiture," id. The court
then concluded that the error was harmless. Id.
The government in this case made the following allegation in its opposition to
Williams's motion to dismiss the forfeiture count: "Shortly after the conclusion of the
trial, [Williams's] stand-by counsel was heard to say, 'I don't know how [the judge is]
going to get around the forfeiture procedure,' or words to that effect, supporting the
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In Evick, "[n]o party requested that the jury be retained for a determination of the
forfeitability of specific property. In addition, [the district court] did not make a
specific determination as to whether either party wanted the jury to make such a[]
determination." Id. at 297. "As such, after the jury returned its guilty verdict as to
both defendants, the jury was released." Id. The defendant subsequently moved to
dismiss the criminal forfeiture count on the ground that "the jury did not make any
finding regarding the forfeiture of specific property," id., and the court denied the
defendant's motion, id. at 299.
The Evick court relied on United States v. Martin, 662 F.3d 301 (4th Cir.
2011), cert. denied, __ U.S. __, 132 S. Ct. 1953 (2012), to determine that the20
inference that he was aware [that] Fed. R. Crim. P. 32.2(b)(5)(A) required the Court
to make inquiry of the parties." If that were true, Mancuo's reasoning would apply
insofar as Williams's waiver of a jury determination was not "inadvertent." Although
Williams does not respond to this allegation in his reply brief for the motion, there is
nevertheless no record of the statement being made, and "[t]here is no way that
statements made in an off-the-record [conversation] can be reliably reconstructed at
this point." Pool Thunder v. United States, 810 F.2d 817, 820 n.1 (8th Cir. 1987).
In Martin, the district court failed to reference the forfeiture proceedings20
when sentencing the defendants and did not include orders of forfeiture in the final
judgment, as required by then-applicable Federal Rule of Criminal Procedure
32.2(b)(3). See 662 F.3d at 306–07. "In fact, the district court failed to enter the
preliminary order of forfeiture until after it entered judgments and did not enter a final
order of forfeiture until months later." Id. at 307. The defendants argued on appeal
that the district court's failure to comply with the Rule 32.2(b)(3) deadlines relating
to forfeiture deprived the district court of jurisdiction to later enter the final forfeiture
orders. See id. The Fourth Circuit disagreed based on its classification of the
Rule 32.2(b)(3) deadline as a "time-related directive" deadline and "refuse[d] to
vacate the district court's tardy forfeiture orders." Id. at 309–10.
This Court recently cited Martin in United States v. Shakur, 691 F.3d 979, 987
(8th Cir. 2012), a case with facts similar to Martin. Shakur touches upon amended
Rule 32.2(b)(5)(A) insofar as the court noted that "[t]he timing of the [trial court's]
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Rule 32.2(b)(5)(A) requirement imposed upon a district court is merely a
"time-related directive" deadline, Evick, 286 F.R.D. at 298, i.e., "a deadline 'that is
legally enforceable but does not deprive a judge or other public official of the power
to take the action to which the deadline applies if the deadline is missed,'" Martin,
662 F.3d at 308 (quoting Dolan v. United States, 130 S. Ct. 2533, 2538 (2010)).21
The Evick court then looked at several of factors that weighed in favor of this
classification. First, "although Rule 32.2(b)(5)(A) includes the word 'must,' it did not
specify a consequence for noncompliance." Evick, 286 F.R.D. at 298. Second, "the
main purpose of criminal forfeiture is to deter future crimes by depriving a criminal
defendant of the fruits of illegal conduct, not to protect defendants." Id. Third,
request [for a jury determination of forfeiture] violated Rule 32.2(b)(5)(A)." Id. at
985 n.2. However, neither defendant in Shakur moved to dismiss the forfeiture count
because of the violation and, without any further analysis, the court stated only that
"th[e] violation appears to be harmless." Id. Regarding the violations that were also
the subject of Martin, the Shakur court noted that it would be "reluctant to follow the
panel majority in Martin . . . to the interpretation of Rule 32.2(b), without considering
the [Supreme] Court's statement in United States v. Addonizio, 442 U.S. 178, 189 &
n.16 (1979), that 'once a sentence has been imposed, the trial judge's authority to
modify it is' limited to Rule 35." 691 F.3d at 988 n.6. However, the violation of
Rule 32.2(b)(5)(A) in this case does not present the same concerns as in Shakur and
Martin. Here, the district court did not order criminal forfeiture at any time; rather,
the district court dismissed the forfeiture count against Williams on October 26, 2011,
and Williams's sentence was subsequently imposed on November 4, 2011. Thus, the
above-quoted language from Addonizio that gave pause to the Shakur court to follow
Martin on issues relating to Rule 32.2(b) is not at play here.
That is, a "time-related directive" deadline as opposed to either (1) a21
"jurisdictional" deadline—one that "prevents the court from permitting or taking the
action to which the statute attached the deadline," e.g., deadline for filing an
appeal—or (2) a "claims-processing rule" deadline—one that "do[es] not limit a
court's jurisdiction, but rather regulate[s] the timing of motions or claims brought
before the court," e.g., deadline for filing a motion for a new trial in a criminal case.
Martin, 662 F.3d at 307–08 (alterations in original) (quoting Dolan, 130 S. Ct. at
2538–39) (internal quotation marks omitted).
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"preventing forfeiture on the court's failure to meet a deadline imposed by Rule 32.2
could hurt the individuals that such forfeiture was intended to benefit, including the
victims." Id. Fourth, the court recognized that Rule 32.2(b)(5)(A) "merely applies
to a jury determination of the forfeitability of specific property," not the amount of
liability—as with money damages—and thus the purpose of the deadline for inquiring
as to whether to retain the jury could not be to provide the defendant with certainty
as to liability. Id.; see United States v. Gregoire, 638 F.3d 962, 972 (8th Cir. 2011)
("Rule [32.2] by its plain language applies only to 'the forfeitability of specific
property.' As the government disclaimed any intent to seek forfeiture of specific
property, there was no issue for the jury." (citing United States v. Tedder, 403 F.3d
836, 841 (7th Cir. 2005) ("Rule 32.2 does not entitle the accused to a jury's decision
on the amount of forfeiture." (emphasis added)))). Finally, the Evick court noted that
"forfeiture is mandatory upon conviction of a defendant[,] [and] the Fourth Circuit
has specifically ruled that a district court does not have the discretion to ignore a
statutory forfeiture provision." Evick, 286 F.R.D. at 298.
We agree with and adopt the Evick court's reasoning regarding Dolan's
classification of procedural deadlines as applied to amended Rule 32.2(b)(5)(A). See
supra note 21 and accompanying text. Additionally, like the Fourth Circuit, we have
also determined that post-conviction forfeiture is mandatory when certain statutory
language requires it. See United States v. 318 S. Third St., 988 F.2d 822, 827–28 &
n.9 (8th Cir. 1993) (differentiating between criminal statutes providing that property
"may be seized and forfeited" and those that provide that property shall be forfeited
(emphasis added) (internal quotation marks omitted)). In fact, we have made that
determination in specific reference to the criminal forfeiture statute at issue here.
United States v. Bieri, 68 F.3d 232, 235 & n.1 (8th Cir. 1995) ("[C]riminal forfeiture
under [21 U.S.C. § 853(a)] is mandatory, not discretionary."); see United States v.
Adetiloye, __ F.3d __, 2013 WL 1845520, at *7 (8th Cir. May 3, 2013) (applying
Dolan and stating that "we must not lose sight of the purpose of the statute").
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Accordingly, we affirm the district court's denial of Williams's motion to
dismiss with prejudice the criminal forfeiture count of the superseding indictment.
C. Grant of the Government's Motion to Dismiss without Prejudice
Federal Rule of Criminal Procedure 48(a) provides that "[t]he government may,
with leave of court, dismiss an indictment, information, or complaint. The
government may not dismiss the prosecution during trial without the defendant's
consent." We review for an abuse of discretion the district court's grant of the
government's motion to dismiss the superseding indictment without prejudice. United
States v. Jacobo-Zavala, 241 F.3d 1009, 1011 (8th Cir. 2001) (standard of review for
Rule 48(a) motions).
Williams asserts that the district court erred in granting without prejudice the
government's motion to dismiss for two principal reasons. First, Williams argues that
"Rule 48(a) requires both leave of the court and consent of the defendant when
seeking to dismiss during trial." (Emphasis added.) As Williams recognizes,
however, "the Government's Motion to Dismiss was filed after a complete trial,
submission of the evidence to the jury, and a returned verdict." Although it is the rare
case in which the prosecution will move to dismiss an indictment after a trial is
complete and verdict rendered, Rule 48(a) requires the government to obtain the
defendant's consent to dismiss the prosecution only "during trial," and Williams has
not cited any authority that requires the government to likewise seek the defendant's
consent after trial. Therefore, all that the government needed was leave of court,
which the district court granted.22
In his reply brief, Williams points out correctly that the government did not22
identify Rule 48(a) as the grounds for dismissal in its motion to dismiss, and only on
appeal—and after the district court granted the motion pursuant to Rule 48(a)—did
the government adopt that Rule as its basis for seeking dismissal. We note, however,
that Williams failed to make this lack-of-basis argument in both his opposition to the
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Williams's second argument is that the district court's grant of the government's
motion to dismiss without prejudice "has the potential to lead to the absurd result of
having [a] full trial on the merits, verdict reached and entered, and then a Rule 48(a)
Motion to Dismiss filed because the Government is dissatisfied with the outcome."
We note two points regarding this argument. First, the government could not bring
another criminal forfeiture count against Williams because jeopardy attached at the
time that his jury was empaneled and sworn. U.S. Const. amend V; United States v.
Peoples, 360 F.3d 892, 894 (8th Cir. 2004). Second, so long as it is not punitive in
nature, a civil forfeiture action does not implicate double jeopardy and is "merely [a]
different aspect[] of a single prosecution." United States v. Jones, 111 F.3d 597,23
599 (8th Cir. 1997) (quoting United States v. Smith, 75 F.3d 382, 386 (8th Cir. 1996)
(internal quotation marks omitted)). Thus, there was nothing preventing the
government's motion and his initial brief on appeal. See United States v. Coplen, 533
F.3d 929, 930 (8th Cir. 2008) ("This Court ordinarily will not address issues raised
for the first time in an appellant's reply brief."). Further, Williams has not cited any
authority requiring a party to refer specifically to the Federal Rules when seeking
leave of the court or, alternatively, forbidding a court from granting leave based on
a Federal Rule where the party did not refer to the Rule.
Williams's stand-alone argument that the government's in rem civil case23
against his assets violates his right under the Fifth Amendment's Double Jeopardy
Clause also fails. Specifically, Williams claims that the separate forfeiture case,
"while civil in nature, include[s] the same properties titled in Mr. Williams's name as
were included in the criminal forfeiture allegation" and that, as a result, the
government is "trying to take a second bite at the forfeiture apple." This argument
is foreclosed by United States v. Ursery, in which the Supreme Court held that "in
rem civil forfeitures are neither 'punishment' nor criminal for purposes of the Double
Jeopardy Clause." 518 U.S. 267, 292 (1996). This Court has commented on the
"breadth" of Ursery by noting that it applies to "both property directly acquired as a
result of drug sales and property used in connection with the production or
transportation of controlled substances." United States v. One 1970 36.9' Columbia
Sailing Boat, 91 F.3d 1053, 1057 n.3 (8th Cir. 1996).
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government from bringing a related civil forfeiture proceeding against Williams's
assets after his criminal trial—let alone maintaining a separate civil proceeding
during his criminal trial, see Smith, 75 F.3d 382 at 386 (no cause for concern when
parallel civil forfeiture complaint filed two days after related criminal
indictment)—regardless of whether the district court granted the government's motion
to dismiss. See Jones, 111 F.3d at 599–600 (no cause for concern where civil
forfeiture action initiated prior to criminal trial, stayed pending prosecution, and the
stay lifted and civil proceedings continued after the defendants were convicted); see
also United States v. Maull, 855 F.2d 514, 515 (8th Cir. 1988) (government not
barred by res judicata from initiating criminal forfeiture count "involv[ing]
essentially the same property" as an already-dismissed civil forfeiture action).
Accordingly, the district court did not err in granting the government's motion
to dismiss the criminal forfeiture count, and Williams did not suffer any prejudice.
III. Pending Motions
Both before and after oral argument, Williams filed a plethora of motions that
were ordered taken up with the merits of this case. Prior to oral argument, Williams
moved separately to correct the trial transcript and to supplement the record on
appeal; those motions are denied. Williams also moved for a subpoena duces tecum
regarding audio files of the trial proceedings; that motion is also denied. After the
case was submitted, Williams moved for sanctions against the government's attorney
for allegedly making knowing misrepresentations of material facts at oral argument;
that motion is denied. Williams also moved for reconsideration of an order denying
his request to file a post-argument supplemental pro se reply brief; that motion is also
denied.
All other motions, including the complaint against his appellate counsel, see
supra note 14, are denied without prejudice. To the extent that any of the motions or
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other filings by Williams pertain to issues that could be raised in a 28 U.S.C. § 2255
motion, e.g., ineffective assistance of counsel, Williams may raise those issues by
way of an appropriately and timely filed motion pursuant to § 2255.
IV. Conclusion
For the reasons set forth above, we hold the following:
• The district court did not err in denying Williams's motion
to dismiss the superseding indictment or, alternatively,
suppress Williams's statements made to attorney Haddock.
• The district court did not err in denying Williams's motion
to suppress statements made to Conway.
• The district court did not abuse its discretion by refusing to
admit all 170 hours of recordings or through its comments
regarding Williams's pro se presentation of evidence.
• The district court did not abuse its discretion in denying
Williams's motion to sever his trial from that of Deshawn
Hernandez.
• Williams was not entrapped as a matter of law into
committing the Count I and Count II offenses.
• The district court did not err in admitting the fingerprint
cards of "Donald Jarmon."
• The district court did not err in denying Williams's motion
to dismiss the criminal forfeiture count and did not abuse
its discretion in granting the government's motion for same.
Additionally, Williams's right to be free from double
jeopardy was not violated by the government's in rem civil
forfeiture complaint.
• The judgment and sentence of the district court are
affirmed.
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______________________________
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