USA v. William Gross, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11543
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM GROSS, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20532-PCH-1
____________________
Before R OSENBAUM , NEWSOM , and L UCK , Circuit Judges.
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2 Opinion of the Court 22-11543
PER CURIAM:
Appellant William Gross, Jr., was charged with (and later
convicted of) seven counts of distribution of child pornography.
Although the district court appointed counsel for Gross, Gross filed
pro se documents and sought to discharge his counsel. The district
court held two hearings to assess Gross’s intent. It found that, by
his actions and words, Gross knowingly and voluntarily waived his
right to counsel and would proceed pro se. Still, though, the court
ordered counsel to be on standby to assist Gross. Gross went to
trial and was convicted on all counts.
He now asserts that the district court violated his Sixth
Amendment right to counsel because the court required him to
proceed pro se. Besides that, Gross raises several claims that he did
not receive a fair trial and the district court otherwise violated his
constitutional rights. After careful review of the record and with
the benefit of oral argument, we find no merit to any of Gross’s
arguments and affirm his convictions.
I. BACKGROUND
A. Pretrial Proceedings
In October of 2021, Gross was arrested, and a grand jury
charged him with seven counts of distribution of child pornogra-
phy, in violation of 18 U.S.C. § 2252(a)(2). Each of the seven counts
corresponded with a date between August and November 2020 on
which Gross shared an image or video of child pornography with
an undercover agent from the Federal Bureau of Investigation.
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22-11543 Opinion of the Court 3
Gross made his initial appearance on October 5, 2021. At that time,
the magistrate judge informed Gross of the charges against him,
found him to be indigent, and appointed counsel to represent him.
About two months later, Gross began filing various pro se
documents about his legal representation. In one filing he entitled
“Notice Nolle Prosequi,” Gross stated that he was proceeding in
“propria persona.”1 Gross attached a ”Judicial Affidavit of Nolle
Prosequi” to this filing. In that affidavit, Gross said he was “the
living human being William Gross, Jr., authorize[d] representative
for fictitious business name William Gross Jr. on paper.” Besides
that, Gross challenged the district court’s jurisdiction and lodged a
continuing objection to his counsel of record, Assistant Federal
Public Defender Lauren F. Krasnoff.
In other filings on the same date—such as his filings he called
“Rescission of Signature”; “Notice of Unlawfully Forced, Abuse of
Public Office and Abuse of Power”; and “Notice [of] Continuing
Objection to All Attorney Types”—Gross reiterated these same
sentiments. Again, in one of these filings, Gross insisted he was
proceeding “in propria persona” and indicated that he was making
a “continuing objection to all attorney types appointed including
pro-se, Lauren F. Krasnoff, Private attorney, Federal Public
1 “In propria persona” means “without the assistance of an attorney.” See
https://www.merriam-webster.com/dictionary/in%20propria%20persona
(last visited January 24, 2024).
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4 Opinion of the Court 22-11543
Defender Officer, or any other attorney types appointed in this le-
gal matter.”
The next day, Krasnoff moved for a status conference to ad-
dress Gross’s remarks about his legal representation. By way of
explanation for her motion, Krasnoff noted that Gross’s recent fil-
ings included a request that she no longer represent Gross. The
motion also recounted that during a legal visit, Gross asked a prison
guard to inform Krasnoff that he no longer wanted her legal repre-
sentation. Then Gross left the visitation room and refused to speak
with Krasnoff.
1. Status Conference
On January 6, 2022, the district court held a telephonic status
conference, during which Krasnoff voiced concerns about Gross’s
filings and the fact that he would not speak with her. The district
court observed that Gross had filed several notices that “don’t
make a lot of sense,” so he asked Gross to explain his concerns.
Gross responded to the judge (Judge Huck), “Mr. Huck, I do
object to this conference call. I do also object to any attorney-type
proceedings.” And he said, “I object to my attorney in this case.”
The district court asked if Gross wished to represent himself in
the case, and Gross responded, “I am proceeding in propria per-
sona.” In response, the court explained that it understood Gross to
mean that he wanted to discharge Krasnoff and asked if Gross had
another lawyer to represent him. Gross responded that he did not.
And the court asked, “So you want to proceed on your own, rep-
resenting yourself; is that the case?” Gross replied, “I am
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22-11543 Opinion of the Court 5
representing myself in propria persona. I am objecting to pro se
and any private attorneys or public defenders or officers of the
court.”
The district court repeatedly inquired, “What does that
mean?” Then, a third time, the court asked Gross whether he
wanted to “discharge Ms. Krasnoff as your lawyer, and . . . repre-
sent[] yourself without a lawyer.” This time, Gross responded, “I am
objecting to all attorney types, and I am proceeding in propria per-
sona.”
The court tried yet again, explaining that unless Gross said
otherwise, it understood Gross wanted to represent himself.
Gross persisted, repeating, “I am here in propria persona.” When
the court again asked what Gross meant, Gross said, “I am here. I
am a living human being. I am here for the fictitious name on pa-
per.” The court expressed its belief that Gross was “play[ing]
games with the Court” and indicated that it would allow Gross to
represent himself and Krasnoff would serve as back-up counsel to
advise him.2
2 Gross’s language was consistent with that of proponents of the “sovereign
citizen” argument. Indeed, Gross conceded his sovereign-citizen stance
throughout the proceedings. In United States v. Williams, we explained that
sovereign-citizen proponents “challenge the jurisdiction of district courts to
try criminal cases by asserting that the federal government has no authority
over [them].” 29 F.4th 1306, 1308 (11th Cir. 2022). Sovereign citizen propo-
nents are often disruptive and deny that they are the defendants in actions
against them. United States. v. Sterling, 738 F.3d 228, 233 n.1 (11th Cir. 2013).
They also often refer to themselves as third-party intervenors. Id. And they
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6 Opinion of the Court 22-11543
Then, the district court moved on and advised Gross that if
he did not wish to plead guilty, trial would begin on February
14th. Once again, though, Gross said, “I understand, but I am ob-
jecting to filing as pro se. . . . I’m not agreeing to going into this
court with pro se.”
Yet again, the court tried to confirm with Gross what he
wanted. So the court asked, “Do you want to proceed with or with-
out counsel? Tell me yes you want to proceed with counsel, or no
you don’t want to proceed with counsel. Which is it?” Gross
replied, “No, I’m objecting to all counsel, to all attorney types.”
Given that answer, the court reiterated that trial would
proceed on February 14th, Gross would represent himself at trial,
and Krasnoff would serve as standby counsel, “available for consul-
tation and to answer any questions you may have about the pro-
ceedings.”
The government questioned Gross in an effort to confirm
that his waiver of his right to counsel was knowing and voluntary.
Gross confirmed he was not under the influence of any medication
and had never taken any sort of psychiatric medication or seen a
have been known to use unusual phrases like the ones Gross used in this case.
See id.; Cantu v. City of Dothan, 974 F.3d 1217, 1223 (11th Cir. 2020) (defendant
declared himself to be “Flesh and blood of living Man”). The FBI has provided
a description of the sovereign citizen ideology. See Williams, 29 F.4th at 1308
(citing Federal Bureau of Investigation, “Sovereign Citizens: An Introduction
for Law Enforcement” 3 (Nov. 2010), https://info.publicintelligence.net/FBI-
SovereignCitizens.pdf)).
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22-11543 Opinion of the Court 7
psychiatric official for mental- health issues. He also said that no
medication, drugs, alcohol, or mental-health concerns affected his
ability to understand the proceedings. When asked if he was waiv-
ing his right to counsel knowingly and voluntarily, Gross, re-
sponded, “Yes. I’m objecting to all attorney types.”
The hearing concluded with the court explaining, “[Y]ou’re
pretty much on your own now, but you have access to [Krasnoff’s]
help and assistance if you so choose to seek that. I would recom-
mend that you do seek that, because [Krasnoff is] a very good law-
yer, and she can help you with regard to your defense, but that’s
your choice. You have the right to represent yourself, and I’m go-
ing to acknowledge that right and allow you to proceed.”
The next day, the court issued a written order granting
defense counsel’s oral motion to withdraw as counsel. In the
Order, the court concluded that Gross “knowingly and voluntar-
ily waived his right to counsel and is competent to do so.”
2. Faretta Hearing
Gross continued to file various documents in which he
voiced his intent to proceed in propria persona and his objection to
the federal public defender and “any other attorney types ap-
pointed in this legal matter.” In the meantime, the government
sought for the district court to conduct an inquiry pursuant to
Faretta v. California, 422 U.S. 806 (1975), to establish that Gross un-
derstood the risks of representing himself and that he freely made
that choice.
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Based on this request, the district court held another hearing
on January 18, 2022, nearly a month before trial was scheduled to
start. At the beginning of the hearing, the court noted that Gross
had previously indicated that he wanted to proceed as his own law-
yer. When the court asked, “do you still want to proceed on your
own?” Gross responded, “Objection. I’m not here to proceed on
my own. I am here to object to all attorney types.”
The court questioned Gross about his background. Gross
said that he had a twelfth-grade education, did not suffer from any
mental illness, and had not consumed any drugs or alcohol in the
prior 24 hours. He also reported that his occupation was in retail
business. When asked whether he had ever studied law, Gross said
he had not, but he mentioned he picked up some informal training
in the law at the Bureau of Prisons. Although Gross noted that he
had never been involved in a prior criminal proceeding, he said he
understood the nature of the charges brought against him, his pos-
sible defense, and the fact that, if convicted, he was facing a man-
datory minimum sentence of five years and up to a maximum of
twenty years as to each of the counts.
Gross also assented that he understood he would be doing
all of the legal work. Even so, though, he remarked, “but I am not
proceeding as pro se.” In response, the court again explained that
Krasnoff would serve as standby counsel, which meant “if [Gross]
had some questions that [he] would want to discuss with her, get
some advice from her . . . that she would be available for that.”
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22-11543 Opinion of the Court 9
As for the Federal Rules of Evidence and federal criminal
procedure, Gross said he was familiar with them and understood
the proceedings. Gross also commented that he did not give con-
sent for a magistrate judge to preside over the case.
Then the court turned to Gross’s refusal to meet with Kras-
noff in prison. Again, the court noted that Krasnoff was an experi-
enced lawyer who would be able to investigate, prepare motions
and filings, and represent Gross at trial. Gross responded that he
understood if he represented himself, Krasnoff would not be his
full-time lawyer, but rather only a standby lawyer, and he would
be at a disadvantage.
After this colloquy, the court recognized that Gross had in-
dicated both in a prior telephonic hearing and “now today in per-
son” that he wished to represent himself. Yet Gross responded,
“Mr. Huck, I’m not representing myself. I’m representing myself
as propria persona.” The court replied, “[B]ut that decision was
made by you, not someone else, right?” Gross stated, “It is correct.
I represent myself in propria persona for the fictitious business
name that is on the indictment[.]” Gross agreed no one had threat-
ened him or forced him to come into court and say he wanted to
represent himself. Based on these interactions, the court found
that Gross knowingly and voluntarily waived his right to counsel.
As a final matter, Gross asked the judge what kind of officer
of the court he was and whether he was a magistrate judge. The
judge answered that he was a district-court judge. And Gross re-
sponded that he “d[id] not recognize [the judge] as an Article III
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10 Opinion of the Court 22-11543
judicial judge.” Once again, the court concluded that Gross was
knowingly and voluntarily waiving his right to counsel, and that he
would proceed on his own, with the assistance of standby counsel.
The district court entered an Order granting Gross’s request
to continue representing himself. On the same day, Gross filed yet
another notice, in which he stated that he intended to “proceed in
propria persona throughout the case.” Gross continued to file pro
se pleadings challenging the court’s authority.
3. Calendar Call
A week and a half before trial, court held a calendar call in
the case. At that proceeding, the government noted that Gross had
still been refusing to communicate with or meet with standby
counsel. The court responded by asking Gross whether he wanted
a different lawyer appointed. Although Gross opined that standby
counsel was ineffective, he also insisted he did not consent to the
assignment of a new lawyer to his case. Instead, Gross remarked
that, at trial, he would make an opening statement and cross-exam-
ine witnesses. Upon hearing this, the court advised Gross that he
had the right to remain silent and not testify. The court also rec-
ommended that Gross speak to standby counsel about the issue of
whether he should testify.
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B. Trial
1. Jury Selection and Opening Statements
On February 14, 2022, the district court began jury selection.
Krasnoff was present as Gross’s standby counsel and made notes
recommending potential jurors to challenge for cause, but Gross
refused to confer with her. During the proceedings, Gross contin-
ued to provide the court with responses that did not address the
questions asked of him. Gross also repeatedly referred to the trial
judge as “Mister Huck.”
The court asked Gross whether he had any challenges for
cause. Gross responded, “I object. I object to this whole jury, this
whole trial. I do not consent to any of this.” Outside the venire
panel’s hearing and before the district court seated the jury, Kras-
noff asked, “Mr. Gross, do you want the shackles removed?” Gross
responded, “No.” The court replied, “All right.” The parties then
went through their challenges and the jury was seated.
The government delivered its opening statement. When
the court asked whether Gross intended to present an opening,
Gross said, “I reserve my opening statement.” The government
then called its first witness.
2. The Government’s Case
Because the government prevailed at trial in every count
against Gross, we present the facts of the government’s case in the
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12 Opinion of the Court 22-11543
light most favorable to the verdict. See United States v. Dixon, 901
F.3d 1322, 1335 (11th Cir. 2018).
The bulk of the government’s case against Gross relied on
testimony by undercover FBI Agent George Nau. Nau, with the
username “Greg Soccerdad,” entered a Kik3 chatroom titled “Fam-
ily Tabu No Limits.” In that chatroom, users traded child pornog-
raphy and some claimed to be sexually active with minors.
Nau encountered an assistant administrator of the cha-
troom. This assistant administrator’s screen name was Chase Or-
donez, and his username was “WillG880.” WillG880 uploaded
child pornography to the chatroom and claimed to be sexually ac-
tive with a young family member who was a minor. Nau began
chatting by direct message with WillG880 and did so for almost one
year. The government introduced in evidence these direct mes-
sages (“DMs”) between Nau and WillG880 from June 2020 through
June 2021. These messages show that WillG880 asked for pictures
of Agent Nau’s fictitious eleven-year-old daughter and expressed
interest in having sex with her. He also asked Nau for child por-
nography videos. WillG880 told Nau that he had been sexually ac-
tive with a 14-year-old relative when he was twenty-five years old
and that he was now thirty years old, living in the Miami area.
3 The Kik application is a social-media messaging platform on which users
communicate with each other. Users on the Kik app could use any username
and Kik did not verify email accounts or require phone numbers to create an
account.
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22-11543 Opinion of the Court 13
Nau testified about the explicit conversations he had with
WillG880. In particular, he said that WillG880 sent him images or
videos of child pornography on dates corresponding with those in
the seven counts of the indictment.
Aside from the fact that Gross’s name matched the first
name and first initial of the username WillG880, Nau testified, the
person Nau chatted with shared other information that led law en-
forcement to identify the user as Gross. Nau explained that
WillG880 had told him that he worked at a grocery store, that he
once lived in Miami Lakes, and that he was 6’1” and thirty years
old. Gross’s driver’s license, which was admitted into evidence, re-
vealed the same height and age. And Gross’s former girlfriend, Vic-
toria Medina, who testified later in the trial, recalled that Gross told
her he once lived in Miami Lakes.
During their correspondence, WillG880 sent photographs of
himself to Nau from his workplace. The face in the photograph
WillG880 sent had a birthmark on the subject’s forehead. That
birthmark matched one on Gross’s forehead.
Law enforcement also confirmed that Gross worked at a
grocery store. In fact, evidence showed that Gross was at work
when WillG880 claimed to be at work and was sending the photos.
Law enforcement further determined that the photos WillG880
sent were taken at the grocery store where Gross worked.
Besides that, Nau testified that at one point, WillG880 sent
him a picture of his penis. And Nau said that WillG880 mentioned
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14 Opinion of the Court 22-11543
that he had a six-foot-tall girlfriend and broke up with her in Janu-
ary 2021, at the same time he left his job at the grocery store.
Gross’s former girlfriend, Medina, later confirmed during
trial that she was six feet tall and broke up with Gross in January
2021. Medina also identified the picture of the penis that WillG880
sent to Nau as Gross’s penis, taken at the home she had shared with
Gross. And Medina identified the person in WillG880’s selfie pho-
tos as Gross.
The government also presented forensic analysis of (1) the
devices it seized from Gross’s home while executing a search war-
rant and (2) data from the IP addresses WillG880 used. Records
obtained from Kik showed that WillG880 accessed the app from
Gross’s residence, Medina’s family’s home, and the grocery store
where Gross worked.
Bryan Jordan, an information-technology specialist and fo-
rensic examiner with the FBI, testified as an expert witness. Noting
that Adrianna Barbee, another forensic examiner, had extracted
data from Gross’s Samsung cellphone, Jordan explained that he had
reviewed Barbee’s work, and it followed best practices. He also
testified that he did his own analysis. Based on remnants of the Kik
application’s installation on the Samsung phone, Jordan concluded
that the Kik application had been on the phone at one point, but
the app was not present on the phone at the time of the extraction.
After Jordan testified, the court excused the jury, and the
parties discussed logistics of the case. The court asked Gross if he
planned on making an opening statement. Gross said he did. Then
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22-11543 Opinion of the Court 15
the parties turned to the jury instructions and Gross asked the
court, “Is there any way I could ask to have my shackles, and my
arm un - - removed, shackles removed [from] my arm.” He also
wanted the record to reflect that he had been “in shackles and
bound to one hand.” The court responded that it could accommo-
date him and directed the Marshals to do so.
The parties returned to the issue of the jury instructions and
whether Gross would be testifying. The court asked Krasnoff if she
had spoken to Gross about testifying. She responded that she had
not, so the court asked her to do so. This elicited commentary be-
tween the government and the court as follows:
GOVERNMENT: I don’t know if the
defendant is aware that if he does not
testify, or present evidence, he does not
give an opening statement. So I think
that needs to be made clear.
THE COURT: I didn’t know that. If he
doesn’t testify, he’s not entitled to an
opening statement?
GOVERNMENT: Because he reserved,
Your Honor, no, he is not.
THE COURT: Is there a case on that?
GOVERNMENT: I can find one, Your
Honor.
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16 Opinion of the Court 22-11543
THE COURT: A rule.
GOVERNMENT: I’m happy to find
one.
THE COURT: Do I have discretion to
allow it anyway?
GOVERNMENT: I’m sorry, Your
Honor?
THE COURT: Do I have discretion to
allow it anyway? Because I am inclined
to allow him to make his statement.
GOVERNMENT: I would need to
check that, Judge. It’s my understand-
ing that unless he makes an opening
statement at the beginning of the case,
if he reserves until the end of the Gov-
ernment’s case in chief, he must present
evidence in order to be able to have that
ability.
The government never cited a case, and the issue never arose again
during the course of the trial.
After this interlude, the government called FBI Special
Agent Kim Jennette as a witness. Jennette testified that she re-
viewed the extraction report of the three devices law enforcement
seized when they arrested Gross—the Apple iPhone, Samsung
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22-11543 Opinion of the Court 17
Android, and Dell laptop. Jennette reported that the government
had found no child pornography or chats relating to child pornog-
raphy on any of the devices. As for the Samsung cellphone, Jen-
nette said she found that the Kik application had been downloaded
on the device. When she performed a manual review of the device,
though, she did not see the Kik application. Thus, Jennette ex-
plained, the application either was in a hidden folder that she did
not find or it had been deleted. Jennette relied on the forensic ex-
aminers’ reports for her testimony about the Kik application.
When the government rested its case and the jury was ex-
cused, Gross moved for a judgment of acquittal. The district court
denied the motion.
Then the court called Gross and Krasnoff to a sidebar so it
could find out whether Gross intended to testify or present any
other evidence:
And now the question is are you going
to testify, put any evidence on? You
know you have the right to testify or you
have the right to remain silent. You’ve
probably heard the limiting instructions,
I’ve instructed the jury if you do not
want to testify and do not testify, the
jury cannot consider that. In other
words, it’s completely your decision.
Consult with counsel, and now is the
time to make that decision. Are you go-
ing to testify or not testify before the
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18 Opinion of the Court 22-11543
jury? You don’t have to testify, or if you
think it’s in your best interest to testify,
of course you can testify. That’s your
decision and your decision alone, but I
need to know now because now is the
time for you to testify or put on any evi-
dence, as I mentioned.
When Gross said he was having trouble deciding, the court
gave him a few minutes to think about it and encouraged him to
speak with Krasnoff. After a few minutes, Gross informed the
court, “as a living man, William Gross, Jr., will be testifying.” The
court replied, “Okay. And you can now make your opening state-
ment.”
3. The Defense Case
Gross made an opening statement to the jury. He said, “I’m
not a lawyer. I’m just a man, just a man right here in front of you.
Mr. William Gross. . . . I never wanted to go pro se, it was not my
intention. . . . Never wanted to represent myself. I just wanted jus-
tice for what was done to me. ” During his opening statement,
Gross complained that he was “incarcerated in federal prison.”
And he admitted that he had “ruined a lot of lives” but said, “[T]his
is not an admission of guilt.”
After his opening statement, Gross testified briefly. He
opined that the FBI violated his rights when it arrested him and
searched his home.
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22-11543 Opinion of the Court 19
On cross-examination, the government asked Gross
whether he had chatted with Nau on Kik or sent pictures or videos
of child pornography. Gross denied that he had. Gross also denied
that law enforcement had fully advised him of his Miranda rights
and that he had initialed a confession in the case. Still, though,
Gross admitted the selfies and penis photographs were of him.
Even so, Gross denied that he was WillG880 and that he had sent
the pictures.
Gross rested his case and renewed his motion for judgment
of acquittal, which the court denied.
4. The Government’s Rebuttal Case
The government presented a rebuttal case. During its re-
buttal, the government introduced a post-arrest confession Gross
gave. FBI Special Agent Rick Enriquez explained that after Gross’s
arrest, Enriquez had read Gross his Miranda rights, made sure he
understood the warning, interviewed Gross, and then obtained a
signed statement from him. In the statement, Gross admitted to
using the Kik messenger to communicate with others about sex with
minor children. He confessed to communicating with the user
“Greg Soccer” on and off for several months. And he admitted that,
during those interactions, he had sent child pornography images
and videos.
In another part of his statement, Gross said, “Using Kik mes-
senger, I have communicated with a handful of groups that were
into deviant sexual content, including child pornography.” As
Gross described it, “for two years, I have been looking at . . .
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20 Opinion of the Court 22-11543
pornography of minor children. I have seen videos and images of
boys and girls of various ages having sex with adults.” Finally,
Gross confessed that twice in the past, he had received images of a
penis from a person who looked to be fifteen years of age, but he
claimed he had never had sexual contact with a child.
Gross presented no other evidence.
5. Gross’s Closing Argument
In his closing argument, Gross said, “[O]ne of the reasons
why I would say I’m representing myself today is [] my rights as a
human w[ere] violated.” He argued no direct evidence linked him
to the crimes charged; only circumstantial evidence existed of his
involvement. Gross also complained, “I was brought to this court-
room in shackles. Shackles like a slave. If you look outside of this
courthouse and really pay attention, this is modern day slavery. . . .
They bring us in shackles from across the street underground.”
The government objected to this statement, and the court in-
structed the jury that Gross’s closing arguments were not evidence.
Gross continued, “I’m not an attorney, I was not ready for
this case. I was on lockdown at FDC Miami, two weeks before - -”
The court again told Gross to refrain from these comments, but
Gross repeated, “I was not ready for this case at all. At all. It was
kept from me. Kept from the federal government that had me in
prison.”
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22-11543 Opinion of the Court 21
C. Verdict, Sentencing, and Appeal
The jury found Gross guilty of all seven counts of the indict-
ment.
At Gross’s sentencing hearing, Krasnoff remained as standby
counsel. Gross’s advisory guideline range fell between 235 and 293
months, but with a 240-month maximum sentence.
Before announcing the sentence, the court emphasized that
Gross had been “extremely uncooperative and difficult to deal
with.” In the district court’s view, his behavior represented “one
of the most egregious cases of obstruction of justice that [the court
had] seen based on [Gross’s] perjury.” The court found that Gross
had lied about not receiving his Miranda rights, making his post-
arrest statement, sending pornography, and sending selfies. The
district court sentenced Gross to the statutory maximum of 240
months’ imprisonment for each count, to be served concurrently.
Gross timely filed his Notice of Appeal and the federal public
defender was assigned to represent Gross in this appeal.
II. DISCUSSION
A. Sixth Amendment Right to Assistance of Counsel
Gross contends the district court violated his Sixth Amend-
ment right to counsel by requiring him to represent himself when
he did not “clearly and unequivocally” declare a desire to do so. In
support of his contention, Gross points to certain remarks he made
during the proceedings: (1) his statement at the status conference
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22 Opinion of the Court 22-11543
when he said he “was representing [himself] in propria persona”
but he was “objecting to pro se and any private attorneys or public
defenders or officers of the court”; (2) his statement at the status
conference in response to the court’s question of whether Gross
understood that the court was going to allow him to represent him-
self: “I understand, but I am objecting to filing as pro se”; (3) his
statement at the Faretta hearing that he was “not here to proceed
on my own. I am here to object to all attorney types”; (4) his state-
ment at the Faretta hearing in response to the court’s remark that
if Gross represented himself he would have to do all the legal work,
“I understand, but I’m not proceeding pro se”; (5) his objection on
the second day of trial to the court’s characterization that he re-
quested to represent himself; and (6) his remark in his opening
statement that he “never wanted to go pro se” and that he “never
wanted to represent himself.”
Gross also argues that he did not knowingly and voluntarily
make any waiver of his right to counsel. According to Gross, the
Faretta hearing made it clear that he was ill-prepared to represent
himself. He never finished high school, was a first-time offender
with no legal experience with the criminal-justice system, had no
formal legal training, and had minimal contact with his appointed
counsel. We disagree with Gross’s view of the record.
1. Relevant Standard
The Sixth Amendment to the Constitution entitles an ac-
cused in criminal proceedings to the right to the assistance of coun-
sel for his defense. U.S. Const. amend. VI. Once an adversarial
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22-11543 Opinion of the Court 23
judicial process has begun, the Sixth Amendment guarantees a de-
fendant the right to have counsel present at all “critical stages” of
the criminal proceedings. Iowa v. Tovar, 541 U.S. 77, 87 (2004);
United States v. Wade, 388 U.S. 218, 227-28 (1967). Although this
right “attaches at the pleading stage of the criminal process,” Boyd
v. Dutton, 405 U.S. 1, 2 (1972), the Supreme Court has held that
“‘forcing a lawyer upon an unwilling defendant is contrary to his
basic right to defend himself if he truly wants to do so.’” United
States v. Hakim, 30 F.4th 1310, 1321 (11th Cir. 2022), cert. denied, 143
S. Ct. 776 (2023) (quoting Faretta, 422 U.S. at 817). Indeed, the right
to represent oneself is “‘necessarily implied by the structure of the
[Sixth] Amendment.’” Id. (quoting Faretta, 422 U.S. at 819). In
other words, the Sixth Amendment “‘does not provide merely that
a defense shall be made for the accused; it grants to the accused
personally the right to make his defense.’” Id. (quoting Faretta, 422
U.S. at 819).
Because a defendant cannot simultaneously assert the right
to counsel and the right to self-representation, a defendant can ex-
ercise one right only if he waives the other. Id. at 1322. But an
accused who represents himself “‘relinquishes . . . many of the tra-
ditional benefits associated with the right to counsel.’” Id. (quoting
Faretta, 422 U.S. at 835). So he must “knowingly and intelligently”
waive his right to counsel. Hakim, 30 F.4th at 1322; see also United
States v. Owen, 963 F.3d 1040, 1048 (11th Cir. 2020). If the defendant
waived counsel without the requisite knowledge, he has been de-
prived of the right to counsel at any critical stage of the criminal
process at which he lacked a lawyer. Hakim, 30 F.4th at 1322.
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Whether a defendant’s purported waiver of his right to
counsel was knowing and voluntary presents a mixed question of
law and fact that we review de novo. United States v. Garey, 540 F.3d
1253, 1268 (11th Cir. 2008) (en banc). On direct appeal, the govern-
ment bears the burden of proving the validity of the waiver. Ha-
kim, 30 F.4th at 1318 (quoting United States v. Cash, 47 F.3d 1083,
1088 (11th Cir. 1995)).
2. Discussion
Garey and its progeny control our analysis. In Garey, an un-
cooperative defendant “adamantly and knowingly” rejected coun-
sel but also refused to affirmatively invoke his right to self-repre-
sentation. Garey, 540 F.3d at 1257. We recognized that a “valid
waiver of counsel [could] occur not only when a cooperative de-
fendant affirmatively invokes his right to self-representation, but
also when an uncooperative defendant rejects the only counsel to
which he is constitutionally entitled, understanding his only alter-
native is self-representation with its many attendant dangers.” Id.
at 1265. As we explained, a defendant who engages in that activity,
through his conduct, knowingly and voluntarily waives his right to
counsel.
We recently applied Garey in Hakim. Hakim engaged in be-
havior similar to Gross’s: he made sovereign-citizen-type state-
ments that were, at times, incoherent and frivolous. See Hakim, 30
F.4th at 1315-17. And he used “dilatory tactics and obscurantism”
that continued for months. Id. at 1316. We reiterated our holding
in Garey that, when a court is “confronted with a defendant . . . who
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refuses to provide clear answers to questions regarding his Sixth
Amendment rights, it is enough for the court to inform the defend-
ant unambiguously of the penalties he faces if convicted.” Id. at
1323–24 (quoting Garey, 540 F.3d at 1267 (emphasis omitted)). Alt-
hough we determined that Hakim had not knowingly waived his
right to counsel, we did so only because during the pretrial stage,
the court incorrectly advised Hakim of the maximum penalty he
faced. Id. As a result, Hakim was not aware of the penal conse-
quences of a conviction, so we concluded he could not have know-
ingly waived his Sixth Amendment right to counsel. Id. at 1323-
1326.
We cannot say the same about Gross. The district court cor-
rectly informed him of the maximum penalties he faced upon con-
viction. So the error in Hakim cannot serve as a basis for declining
to apply Garey here. And other than that error, Gross’s case is ma-
terially indistinguishable from Hakim’s, where we suggested that
Garey would have warranted the conclusion that Hakim had vol-
untarily waived his right to counsel, but for the district court’s mis-
take in advising Hakim about the maximum penalties.
Taking Garey and Hakim together, we reject Gross’s argu-
ment that the district court violated his Sixth Amendment rights by
requiring him to proceed pro se. Gross voluntarily waived counsel
through his actions. He repeatedly said he was “representing
[him]self in propria persona” and he was “objecting to . . . any pri-
vate attorneys or public defenders or officers of this court.” Those
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26 Opinion of the Court 22-11543
were clear statements that he (1) was representing himself, and (2)
was refusing court-appointed counsel.
To be sure, Gross also said, “I am objecting to pro se.” But
given his several assertions simultaneously with that remark that
he was representing himself and his rejections of court-appointed
counsel,” Gross’s “object[ion]” to proceeding pro se does not
change the conclusion. By repeatedly rejecting appointed counsel,
Gross voluntarily chose to proceed pro se just as much as if he had
made an affirmative request to do so, which, in fact, his persistent
insistence on “representing [him]self in propia persona” was. At a
minimum, Gross voluntarily waived his right to counsel through
his conduct.
Gross also knowingly waived his right to counsel. We con-
sider eight factors to determine whether a defendant knowingly re-
linquishes his right to be represented by counsel:
(1) the defendant’s age, educational
background, and physical and mental
health; (2) the extent of the defendant’s
contact with lawyers prior to trial; (3)
the defendant’s knowledge of the na-
ture of the charges, possible defenses,
and penalties; (4) the defendant's under-
standing of rules of procedure, evi-
dence, and courtroom decorum; (5) the
defendant’s experience in criminal trials;
(6) whether standby counsel was ap-
pointed, and the extent to which that
counsel aided the defendant; (7)
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22-11543 Opinion of the Court 27
mistreatment or coercion of the defend-
ant; and (8) whether the defendant was
trying to manipulate the events of the
trial.
Owen, 963 F.3d at 1049.
Here, at both hearings about Gross’s self-representation, the
record reflects that Gross was not under the influence of any med-
ication; he had never been seen for any mental-health issues; and
no medication, drugs, alcohol, or mental-health concerns affected
his ability to understand the proceedings. Gross also had reached
the twelfth grade in high school, even though he had not gradu-
ated. And Gross maintained steady employment before his arrest.
Nothing about his age, education, or health prevented him from
knowingly waiving his right to counsel.
As for Gross’s contact with counsel, though Gross had inter-
acted minimally with Krasnoff before trial, that was his own choice.
Indeed, Gross refused to meet with Krasnoff when she tried to visit
him at the jail.
And in any case, the district court discussed the nature and
consequences of the proceedings with Gross. During that discus-
sion, Gross exhibited an understanding of the charges, possible
punishments, basic trial procedure, and the hazards of representing
himself. See Garey, 540 F.3d at 1265-66. He showed he was capable
of assisting in his defense (had he wanted to be represented by
counsel) and he understood the adversarial nature of the legal pro-
cess.
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28 Opinion of the Court 22-11543
Throughout the district-court proceedings, Gross filed vari-
ous documents. And his performance at trial—including moving
for judgment of acquittal—further showed that he was intelligent
and capable of representing himself.
In context, Gross’s behavior throughout the pretrial and trial
phases strongly suggests that he was engaging in behavior that was
calculated and manipulative. But a defendant “cannot use the right
to counsel as a means to manipulate the court and cause delay.”
United States v. Graham, 643 F.3d 885, 894 (11th Cir. 2011). And this
type of conduct reflects a knowing and voluntary waiver of the
right to counsel. United States v. Amede, 977 F.3d 1086, 1111 (11th
Cir. 2020) (uncooperative conduct throughout case evinced a
knowing and voluntary waiver); Owen, 963 F.3d at 1051-52 (“[e]vi-
dence of [a defendant's] manipulation or intentional delay implies
[his] greater understanding of the proceedings and an understand-
ing of the risks and complexities of a criminal trial.”).
Plus, as we’ve noted, unlike in Hakim, the district court cor-
rectly advised Gross of the possible maximum sentence. And it re-
peatedly warned Gross of the dangers of representing himself, em-
phasizing that Gross should strongly consider accepting Krasnoff as
his attorney. Gross’s interaction with the court requires us to con-
clude that Gross weighed his options but knowingly and voluntar-
ily decided to forego representation. As in Garey, we are satisfied
that Gross waived his right to counsel through his “uncooperative
conduct, and that he did so with an understanding of the dangers
of self-representation.” Garey, 540 F.3d at 1270.
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B. Shackling
Next, Gross asserts that the district court violated his right
to due process and a fair trial when it failed to remove his shackles
during trial. Gross recognizes that certain circumstances can pre-
sent themselves in which courts may require defendants to wear
shackles, but he says those circumstances were not present here.
He points out that he was charged with distributing child pornog-
raphy and he was a first-time offender with no history of violence.
Neither the court, the prosecutor, nor the Marshals had identified
any reason for the shackling. Despite these facts, Gross complains,
he remained shackled in front of the jury for the majority of his
criminal trial. On this record, we reject Gross’s argument.
1. Relevant Standard
We usually review a shackling determination for abuse of
discretion. United States v. Moore, 954 F.3d 1322, 1329 (11th Cir.
2020). But here, Gross did not raise the issue of shackling with the
district court. So we review for plain error. Id. (citing Puckett v.
United States, 556 U.S. 129, 135 (2009) and United States v. Davis, 754
F.3d 278, 283 (5th Cir. 2014) (reasoning because the defendant did
not object during the bench trial to the requirement that he stand
trial handcuffed and shackled, review was limited to plain error)).
Although Gross contends we should apply plenary review,
we disagree. In Moore, we addressed a defendant’s shackling claim.
There, the defendant did not object to the shackles in the district
court. Thus, we held that plain-error review applied. Moore, 954
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30 Opinion of the Court 22-11543
F.3d at 1329. The same is true here. Gross was obviously aware of
his shackling throughout trial. Yet he never objected, even though
standby counsel specifically asked him in the judge’s presence
whether he wanted his shackles removed. In fact, he expressly re-
jected standby counsel’s suggestion of removal.4
To show plain error, Gross must establish three conditions.
“First, there must be an error that has not been intentionally relin-
quished or abandoned. Second, the error must be plain—that is to
say, clear or obvious. Third, the error must have affected the de-
fendant’s substantial rights.” United States v. Hawkins, 934 F.3d
1251, 1264 (11th Cir. 2019) (citation and internal quotation marks
omitted). If these conditions are met, we may exercise our discre-
tion to consider and correct a forfeited error, but only if the error
“seriously affected the fairness, integrity, or public reputation of ju-
dicial proceedings.” Id. (citation and internal quotation marks
omitted). Taken together, a defendant must show “(1) error; (2)
that is plain; (3) that affects his substantial rights; and (4) that seri-
ously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Lewis, 40 F.4th 1229, 1246 (11th Cir.
2022).
4 For this reason, the shackling throughout trial was arguably invited error
that we are precluded from reviewing. See United States v. Harris, 443 F.3d 822,
824 (11th Cir. 2006); United States v. Maradiaga, 987 F.3d 1315, 1322 (11th Cir.
2021) (citing Harris, 443 F.3d at 823-24). But because it makes no difference to
the resolution of this claim, we assume without deciding that Gross did not
invite error and review his claim under the plain-error standard.
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We determine whether an error had substantial influence on
the outcome by weighing the record as a whole, see United States v.
Montalvo-Murillo, 495 U.S. 711, 722 (1990), and examining “the
facts, the trial context of the error, and the prejudice created
thereby as juxtaposed against the strength of the evidence of de-
fendant’s guilt,” United States v. Reed, 700 F.2d 638, 646 (11th Cir.
1983) (citation and internal quotations marks omitted). The party
asserting the error bears the burden of demonstrating that his sub-
stantial rights were affected. United States v. Cameron, 907 F.2d
1051, 1059 (11th Cir. 1990).
2. Discussion
In Deck v. Missouri, the Supreme Court held that the routine
use of visible shackles on defendants during a criminal trial, with-
out “the presence of a special need”—such as courtroom security—
was unconstitutional. 544 U.S. 622, 624, 626 (2005). As the Court
explained, shackling can “(1) affect the presumption of innocence,
(2) infringe on defendants’ ability to communicate with their law-
yers and participate in their defense, and (3) impugn the dignity of
the judicial process[,]” including the respectful treatment of defend-
ants. Id.at 630-31. Still, though, the Court noted that in some cir-
cumstances, “these perils of shackling are unavoidable.” Id. at 632.
Sometimes defendants are demonstrably dangerous and pose con-
siderable risks to others in the courtroom. In these situations,
judges may “take account of special circumstances, including secu-
rity concerns, that may call for shackling.” Id. at 633.
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32 Opinion of the Court 22-11543
Here, the district court did not make any finding of a secu-
rity need to justify the use of visible physical restraints on Gross
under Deck. So we must consider whether Gross’s shackling
amounted to a due-process violation. Id. We conclude that, in the
particular circumstances of this case, it did not.
United States v. Wilson, 979 F.3d 889 (11th Cir. 2020), governs
our analysis. There, Wilson appeared at trial before the jury in
prison clothes and shackles. Id. at 915. He claimed this was inher-
ently prejudicial. Id. We agreed, of course, that, generally speak-
ing, a defendant’s appearance in shackles “is inherently prejudicial
because it reveals to the jury the defendant is in jail and could affect
a juror’s ability to presume the defendant is innocent.” Id. (citing
Deck, 544 U.S. at 630-32 (visible shackles); Estelle v. Williams, 425
U.S. 501, 503-04 (1976) (prison clothes); Moore, 954 F.3d at 1329
(shackles) and United States v. Shabazz, 887 F.3d 1204, 1218 (11th
Cir. 2018) (prison clothes)).
But we determined that, based on Wilson’s arguments at
trial, the shackles were not, in fact, prejudicial. Rather, Wilson
chose to use them in his defense. During opening statements and
throughout the trial, Wilson, (who, like Gross, proceeded pro se)
told the jury that he was in jail, emphasized how long he had been
there, and noted that he was still incarcerated. Id. In other words,
as we explained, Wilson “intentionally and strategically tried to use
his appearance and the fact of his continued incarceration to his
advantage at trial.” Id. He also made no contemporaneous objec-
tion to his prison clothes and shackling. Id. Rather, we said, Wilson
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22-11543 Opinion of the Court 33
purposely pointed them out “to gain the jury’s sympathy by repeat-
edly stressing the length and alleged pretext of his incarceration.”
Id.
We concluded that prison clothes and shackling were not
prejudicial when the defendant “injects his incarceration into the
case.” Id. We relied on our decision in Shabazz, where we said, “a
defendant may not create[ ] his own problem by wearing jail
clothes for strategic advantage and then seek reversal because he
chose to wear those clothes.” 887 F.3d at 1218 (quotation marks
omitted)).
Gross’s situation presents an even less compelling basis for
finding error. For starters, as we’ve mentioned, standby counsel
specifically asked Gross before trial if he wanted his shackles re-
moved and Gross flatly replied, “No.” And when Gross changed
his mind later in the proceedings, the shackles were removed.
Not only that, but like Wilson, Gross discussed his incarcer-
ation in both his opening statement and closing argument and
sought to use it to leverage the jury’s sympathy. Gross told the
jury he was “incarcerated in federal prison” during his opening
statement. And during his closing argument, Gross emphasized, “I
was brought to this courtroom in shackles. Shackles like a slave. . . .
They bring us in shackles from across the street underground.” He
continued, “If I could bring my own witnesses because, again, I’m
not an attorney, I was not ready for this case. I was on lockdown
at FDC Miami, two weeks before—.” And despite the court’s
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34 Opinion of the Court 22-11543
warning to stick to the evidence, Gross again told the jury that “the
federal government . . . had me in prison.”
Gross cannot now seek to use the shackles he wielded as a
sword in his defense as a shield on appeal.
And even if Gross could show plain error—he can’t for the
reasons we’ve explained—any error did not seriously affect his sub-
stantial rights. Gross cannot show a reasonable probability that,
but for the alleged error, the outcome of the trial would have been
different. See United States v. McLellan, 958 F.3d 1110, 1119 (11th
Cir. 2020). Rather, strong evidence of Gross’s guilt exists.
First, the username “WillG880” incorporates Gross’s first
name and the first initial of his last name. Second, WillG880 said
he was the same height (6’1”) and age (thirty) as Gross. Third,
WillG880 mentioned he worked at a grocery store, just as Gross
did. Fourth, WillG880 said he had once lived in Miami Lakes.
Gross had as well, according to his ex-girlfriend. Fifth, both
WillG880 and Gross left their jobs in January 2021. Sixth, both
WillG880 and Gross had girlfriends who were six feet tall and with
whom they broke up in January 2021. Seventh, WillG880 accessed
and sent messages to Nau while he was logged into the wi-fi at
Gross’s home, workplace, and girlfriend’s mother’s home, as the IP
addresses associated with the DMs revealed.
And in some of the more incriminating evidence presented
at trial, WillG880 sent pictures of his face and penis to Nau that
bore Gross’s unique physical characteristics and were identified as
Gross. Even Gross conceded that the photographs were of him.
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22-11543 Opinion of the Court 35
Plus, some of the pictures were sent from the grocery store where
Gross worked at times Gross was working. And the photograph of
Gross’s penis was taken in Gross’s home. Finally, Gross made in-
criminating statements in his post-Miranda confession.
Taking all of this evidence together, Gross’s guilt was over-
whelming. It is unlikely that the outcome of the trial would have
been different if Gross were not shackled.
For all of these reasons, we reject Gross’s shackling claim.
C. Right to Confront Witnesses
Gross also asserts that Agent Jennette’s testimony violated
his Confrontation Clause rights. We disagree.
As we’ve noted, Jennette testified that the Kik app had been
installed on the Samsung Android cellphone law enforcement
seized from Gross’s home, but the app had been deleted or hidden
sometime after it was installed. During her testimony, Jennette ad-
mitted that another forensic examiner had prepared the extraction
report upon which she relied for her testimony, and she was nei-
ther involved in the preparation of the report nor present during
the creation of the report.
Gross argues that Jennette’s testimony based on the extrac-
tion report violates the Confrontation Clause. He notes that a fo-
rensic analyst’s certification prepared in connection with a criminal
investigation is “testimonial” and therefore is within the require-
ments of the Confrontation Clause. Melendez-Diaz v. Massachusetts,
557 U.S. 305, 317-24 (2009)). So, Gross contends, a forensic analyst
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36 Opinion of the Court 22-11543
who did not perform or observe a particular forensic test cannot
testify from the forensic report certifying the test’s results.
1. Relevant Standard
Normally, we review a district court’s evidentiary decisions
for abuse of discretion. Hawkins, 934 F.3d at 1264. But Gross did
not contemporaneously object to Jennette’s testimony as a viola-
tion of his rights under the Confrontation Clause, so we apply
plain-error review. Id.; see also United States v. Smith, 459 F.3d 1276,
1287 (11th Cir. 2006). As we’ve explained, under plain-error re-
view, “there must be (1) error, (2) that is plain, and (3) that affect[s]
substantial rights. If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Cotton, 535 U.S.
625, 631-32 (2002) (citations and internal quotation marks omit-
ted).5
5The harmless-error doctrine applies to violations of the Confrontation Clause
(and other erroneous evidentiary rulings). Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986); United States v. Edwards, 211 F.3d 1355, 1359 (11th Cir. 2000).
An error is harmless unless “there is a reasonable likelihood that [it] affected
the defendant’s substantial rights.” Hawkins, 905 F.2d at 1493. This Court need
not reverse a conviction if the evidentiary error “had no substantial influence
on the outcome and sufficient evidence uninfected by error supports the ver-
dict.” United States v. Fortenberry, 971 F.2d 717, 722 (11th Cir. 1992).
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2. Discussion
The Sixth Amendment’s Confrontation Clause provides
that, “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. As the Supreme Court explained in Crawford v.
Washington, the Confrontation Clause prohibits the admission of
out-of-court statements that are testimonial unless the declarant is
unavailable and the defendant had a previous opportunity to cross-
examine the declarant. 541 U.S. 36, 51–52 (2004). The Confronta-
tion Clause “ensure[s] the reliability of the evidence against a crim-
inal defendant by subjecting it to rigorous testing in the context of
an adversary proceeding before the trier of fact.” Maryland v. Craig,
497 U.S. 836, 845 (1990). The Confrontation Clause includes the
right to cross-examine witnesses. United States v. Diaz, 26 F.3d
1533, 1539 (11th Cir. 1994).
Here, Gross contends the extraction report and its conclu-
sion that the Kik app had been downloaded onto the Samsung cell-
phone and then later removed were testimonial in nature. After
all, the report was prepared in anticipation of a criminal trial and
the conclusion of forensic analyst Barbee about the Kik app was a
declaration “made for the purpose of establishing or proving some
fact.” Crawford, 541 U.S. at 51; see also Melendez-Diaz, 557 U.S. at
321-24 and United States v. Charles, 722 F.3d 1319, 1323 (11th Cir.
2013). Not only that, Gross continues, but Jennette clearly testified
that she was merely adopting the conclusion contained in the ex-
traction report. Yet the government never claimed that forensic
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38 Opinion of the Court 22-11543
analyst Barbee was unavailable or that Gross had a prior oppor-
tunity to cross-examine Barbee.
Gross argues that a key piece of evidence—that his cell-
phone had the Kik app on it and the app was later hidden or de-
leted—went directly to the issue of whether Gross was the person
who sent the images under the name WillG880. The testimony
was damaging for obvious reasons—the images and videos were
sent to Nau through the Kik app. And Gross contends the error
infected the integrity and public reputation of the proceedings. We
disagree.
The problem for Gross is that, by the time Jennette testified,
forensic examiner Jordan had already testified about and adopted
the contents of the same extraction report Barbee prepared. Jor-
dan, who was qualified as an expert, explained that he had re-
viewed Barbee’s report and concluded that it had followed best
practices. Then, Jordan testified, based on his own expert analysis,
he also found that the Samsung phone once had the Kik application
installed on it. Gross had the opportunity to cross-examine Jordan,
including about the report.
And on appeal, Gross does not challenge the admission of
Jordan’s expert testimony about the report or the Kik app, so any
such challenge is abandoned. Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680-82 (11th Cir. 2014). Gross was able to cross-ex-
amine Jordan, who as an expert effectively adopted the report as
his own, on the report’s methodology and conclusions. Plus, Jen-
nette did not testify to anything different than Jordan did about the
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22-11543 Opinion of the Court 39
report. Rather, Jennette’s testimony about the Kik app was merely
cumulative. As a result, even if any error occurred, it was harmless.
See United States v. Jones, 601 F.3d 1247, 1264 (11th Cir. 2010) (con-
cluding that a Confrontation Clause violation was harmless beyond
a reasonable doubt when the challenged evidence was “cumula-
tive” and the government’s case was “strong”).
We therefore reject Gross’s Confrontation Clause argu-
ment.
D. Opening Statement/Gross’s Trial Testimony
Gross argues that the district court coerced him into testify-
ing against himself at trial, in violation of the Fifth Amendment
right not to incriminate himself. In Gross’s view, the court should
have explained to Gross that deferring his opening statement at the
beginning of trial would cause Gross to waive his opening state-
ment unless he presented a defense case. Because Gross’s evidence
consisted solely of his own testimony, the circumstances left him
with the difficult choice of either (1) exercising his right not to tes-
tify and foregoing making an opening statement or (2) making an
opening statement and being forced to testify. Gross ultimately
chose to testify. He points to the trial transcript and says that after
he expressed his decision to testify, the court only then told him
“you can now make your opening statement.”
Plus, Gross continues, the decision to testify prejudiced him
because he had to face cross-examination on the ultimate issues at
trial. And Gross’s testimony allowed the government to introduce
his post-arrest admission, further solidifying the case against him.
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40 Opinion of the Court 22-11543
Not only that, but the district court enhanced Gross’s sentence be-
cause it found he had obstructed justice based, at least in part, on
Gross’s lies under oath. We conclude that Gross’s claim lacks
merit.
The Fifth Amendment guarantees that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself.”
U.S. Const., amend. V. We usually review constitutional claims de
novo. But Gross did not raise this issue in the district court. So we
review for plain error. See Lewis, 40 F.4th at 1246.
Gross cannot satisfy the plain-error standard. He has cited
no rule or case that precludes a criminal defendant from giving a
deferred opening statement if he does not put on a case. And to
the contrary, we have recognized that “[t]he timing and making of
opening statements is within the discretion of the trial judge.”6
United States v. Zielie, 734 F.2d 1447, 1455 (11th Cir. 1984), abrogated
on other grounds by United States v. Chestang, 849 F.2d 528, 531 (11th
Cir. 1988). Here, the court never conditioned its granting of
Gross’s opening statement on the requirement that Gross present
a case. The opposite is true: when the government suggested
Gross would have to put on a case if he wanted to make a deferred
6 In Zielie, we found no error when a district court denied counsel the oppor-
tunity to make an opening statement when defense counsel initially deferred
giving a statement and then later advised that he would call no witnesses and
introduce no evidence. Zielie, 734 F.2d at 1455. We did not conclude that
defense counsel was prohibited from giving an opening statement. Rather,
we merely found that it was within the district court’s discretion to preclude
the statement. Id.
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22-11543 Opinion of the Court 41
opening statement, the district court expressed its disagreement.
In fact, the court stated it was “inclined to allow [Gross] to make
his statement,” regardless of whether he took the stand or pre-
sented other evidence.
The district court also repeatedly reminded Gross that he
had the right to testify or to remain silent. Not only that, but the
court warned Gross to consult with his standby counsel about
whether he should testify and what the ramifications of his testi-
mony would be. In response, Gross took a few minutes to speak
with Krasnoff and then informed the court that he would be testi-
fying.
The context of the interaction between the court and Gross
shows that the court did not allow Gross to make an opening state-
ment because he had offered to testify. Rather, the exchange shows
that the court made sure Gross knew he did not need to testify and
allowed him to speak to standby counsel to make a better decision
about whether to exercise his right not to testify.
In sum, Gross has failed to show any error, let alone plain
error, that the district court somehow forced him into nonvolun-
tarily relinquishing his Fifth Amendment right not to testify against
himself.
E. Cumulative Error
Our review of cumulative trial error considers all errors pre-
served and unpreserved in the context of the trial as a whole to
determine whether the defendant received a fair trial. United States
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42 Opinion of the Court 22-11543
v. House, 684 F.3d 1173, 1197 (11th Cir. 2012). Cumulative errors
require reversal of a conviction if they have a substantial influence
on the outcome of a case. United States v. Frazier, 387 F.3d 1244,
1266 n.20 (11th Cir. 2004) (en banc).
We have acknowledged that “the cumulative prejudicial ef-
fect of many errors may be greater than the sum of the prejudice
caused by each individual error.” United States v. Baker, 432 F.3d
1189, 1223 (11th Cir. 2005). But no cumulative error exists when a
criminal defendant cannot establish that the combined errors af-
fected his substantial rights. United States v. Foley, 508 F.3d 627, 638
(11th Cir. 2007). And even where a district court makes errors, a
defendant’s substantial rights are not affected if “properly admitted
evidence sufficiently established [his] guilt.” United States v. Adams,
74 F.3d 1093, 1100 (11th Cir. 1996).
Because we conclude that the district court committed no
errors, it necessarily did not engage in cumulative error. But even
assuming that some aspect or aspects of the district-court proceed-
ings we’ve discussed were error, any error did not affect Gross’s
substantial rights. The properly admitted evidence overwhelm-
ingly established his guilt in this case.
III. CONCLUSION
For the foregoing reasons, we reject Gross’s arguments and
affirm his convictions.
AFFIRMED.
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