United States of America v. Orlando Preston, also known as Nizza P. El, also known as Black, also known as Pookie

United States Court of Appeals
For the Eighth Circuit
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No. 22-1175
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Orlando Preston, also known as Nizza P. El, also known as Black, also known as Pookie
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 19, 2022
Filed: October 5, 2022
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Before LOKEN, ARNOLD, and BENTON, Circuit Judges.
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ARNOLD, Circuit Judge.
During proceedings to determine whether Orlando Preston had violated the
conditions of his supervised release, Preston asked the district court1 to allow him to
1The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

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appear without a lawyer. The court granted his request and, after a hearing, revoked
Preston's supervised release and sentenced him to thirteen months' imprisonment.
Preston maintains on appeal that the court erred in granting his request. We disagree
and affirm.
In 2014 Preston pleaded guilty to conspiracy to defraud, see 18 U.S.C. § 371,
mail fraud, see id. § 1344, and operation of a chop shop, see id. § 2322(a)(1). He was
sentenced to five years in prison followed by three years of supervised release. We
affirmed that judgment on appeal. See United States v. Preston, 598 F. App'x 465,
466 (8th Cir. 2015) (unpublished per curiam). While he was on supervision after
completing his prison term, Preston's probation officer filed a revocation petition
alleging that he had violated the conditions of his release by failing to report that he
had been arrested, failing to report to his probation officer as directed, failing to
submit to drug testing, and failing to pay restitution as the court had ordered. The
district court appointed attorney James Miller to represent Preston.
Miller later moved to withdraw from his representation, explaining that Preston
had informed him "that he no longer desired him as his attorney and instructed him
to withdraw." At the revocation hearing Preston explained that he wanted Miller to
serve as standby counsel, similar to the one who had assisted him during pretrial
proceedings in his underlying criminal case. He envisioned that Miller would "help
me with my defense as far as explaining certain things to me that I don't know
nothing about because I've never went through this." Preston said that he understood
that he would be representing himself in such a situation and affirmed that he
understood "everything that's involved in representing" himself. So the court
tentatively granted the motion to withdraw but, rather than "formally appointing"
Miller as standby counsel, the court asked him "to stay in case I decide to appoint you
as standby counsel."
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The court then turned to Preston and remarked that he had represented himself
before and was "fully capable of doing so." The record shows that Preston had
represented himself with the assistance of standby counsel for over six months during
pretrial proceedings in his underlying criminal case. The court warned Preston "that
it's not in your best interest to represent yourself," that "[i]t's always better to have a
lawyer who speaks for you," and it informed him that the court could appoint a lawyer
at no expense to him. Preston also affirmed that he understood he had to comply with
the rules if he represented himself.
The court then recited the allegations against Preston and told him generally
how the revocation hearing would proceed. During that explanation the court again
advised Preston that he could be represented by an attorney who could subpoena
witnesses and cross-examine the government's witnesses. It also advised Preston that
he could, but was not required to, testify himself and that the government would
succeed if it proved the allegations by a mere preponderance of the evidence rather
than beyond a reasonable doubt. Preston confirmed that he understood what the court
had said and that he still wanted to represent himself. After this colloquy, the court
determined that Preston was "competent to do this and certainly understands his
rights and is capable of representing himself if he wants to and he has a right to do
that under the Constitution."
When the hearing shifted to the merits of the revocation petition, the
government called Preston's probation officer to the stand. Preston objected to certain
responses during direct examination and conducted cross-examination. Preston then
testified himself. The court ultimately found that he had violated some conditions of
his release, including his failure to report to his probation officer as instructed, failure
to report for drug testing on ten occasions, and failure to pay restitution as ordered.
But it also expressly declined to find that he had violated the condition related to
notifying the probation officer of his arrest.
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We review the district court's decision to let Preston proceed pro se for an
abuse of discretion. See United States v. Owen, 854 F.3d 536, 542 (8th Cir. 2017). A
defendant charged with violating the conditions of supervised release has a statutory
right to counsel. See id. at 541; see also 18 U.S.C. § 3006A(a)(1)(E). If the defendant
waives that right, we must ensure that the district court's acceptance of that waiver
satisfies due process. See United States v. Ivers, 44 F.4th 753, 756 (8th Cir. 2022). To
satisfy due process, the waiver "must be knowing and voluntary as demonstrated
either through a colloquy with the district court, or by the totality of the
circumstances, or both." See id.
Preston maintains on appeal "that his waiver of counsel was not voluntarily,
knowingly, or intelligently made." The totality of the circumstances show otherwise.
Preston represented himself during the underlying criminal case and so was already
familiar with the advantages of representation that he was foregoing. The district
court nevertheless reiterated many of those advantages during its colloquy with
Preston and recommended that Preston keep Miller on, and it explained the features
of revocation proceedings.
Preston maintains that his decision was not voluntary because "unlike the three
options given to the defendant in Owen, that is to say, the option to proceed pro se,
proceed with appointed counsel, or proceed with standby counsel, Preston was left
with only one option—to proceed pro se." For one thing, the record shows that the
court did not deny Preston his right to proceed with appointed counsel; if anything,
it shows that the court encouraged Preston to proceed with Miller as counsel. A
"district court does not violate the right to counsel when it gives a defendant the
choice between adequate representation and self-representation," see Ivers, 44 F.4th
at 756, and Preston does not allege that Miller was inadequate. In addition, Preston
has no right to standby counsel, as that option is available at the district court's
discretion. See United States v. Lamm, 5 F.4th 942, 950 (8th Cir. 2021).
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Preston also points out that, while representing himself during pretrial criminal
proceedings, he submitted several filings that "non-sensically challenge[d] the
authority and jurisdiction of the district court over Preston," which led to the court
appointing counsel for him. He also says that the district court knew that he "may not
have been fully capable of representing himself" because he had previously urged that
"his status as a Moorish-American national" affected the court's jurisdiction. These
filings and beliefs, he contends, "demonstrate an inability to understand the
complexities and disadvantages of self-representation."
We reject Preston's contention. Though his beliefs might be somewhat
unorthodox, they are apparently shared by many and not necessarily the product of
a mind incapable of waiving rights knowingly and voluntarily. See United States v.
James, 328 F.3d 953, 955–56 (7th Cir. 2003). In fact, the record suggests that Preston
ably represented himself during the hearing. Though he ultimately failed to stave off
revocation of his release, he largely operated within the rules and even secured a
determination that one of the allegations against him was unsupported.
In sum, we believe Preston has not demonstrated reversible error but merely
buyer's remorse for his decision to proceed pro se.
Affirmed.
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