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United States v. Kerr

United States Court of Appeals, Second Circuit

May 16, 2014

DESMOND KERR, Defendant-Appellant

Submitted April 18, 2012

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Appeal from the August 6, 2010 judgment of the United States District Court for the Northern District of New York (Glenn T. Suddaby, District Judge), convicting Appellant, following his mid-trial guilty plea, of possession with intent to distribute methylenedioxymethamphetamine and sentencing him principally to 121 months' incarceration. We affirm for the reasons set forth below.

KATHERINE ALFIERI, Law Offices of Katherine Alfieri, New York, NY, for Defendant-Appellant Desmond Kerr.

RAJIT S. DOSANJH, Assistant United States Attorney (Ransom P. Reynolds, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee United States of America.

Before: KEARSE, PARKER, and HALL, Circuit Judges.


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Hall, Circuit Judge.

Defendant-Appellant Desmond Kerr is a Canadian citizen who was arrested by United States customs authorities after they searched his vehicle at the U.S.-Canadian border and discovered thousands of pills containing 3, 4 methylenedioxymethamphetamine (" MDMA" ), a Schedule I controlled substance. Kerr was charged with one count of knowingly and intentionally possessing MDMA with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). A turbulent pretrial period ensued, during which Kerr ceased communicating with and then effectively fired his first two appointed attorneys, insisted on pressing several ill-advised theories of defense to the exclusion of all others, and underwent a court-ordered competency examination that ultimately found him competent to stand trial. Kerr elected to represent himself at trial but, with the assistance of a newly appointed attorney, pled guilty midway through. After entering his plea, Kerr resumed his prior behavior: he again refused to communicate with counsel and filed numerous pro se motions in which he sought to withdraw his plea, press his theories of defense, and obtain the assistance of new counsel. At sentencing, Kerr's attorney expressed concern about Kerr's mental stability and represented that Kerr had been unable to help him prepare for sentencing; the district court also commented on Kerr's belligerent and counterproductive behavior. Ultimately, the district court sentenced him principally to 121 months' imprisonment, rejecting his several sentencing arguments.

Through new counsel, Kerr argues on appeal that his " erratic" and " irrational" behavior following the entry of his plea required the district court to hold a competency hearing before imposing sentence

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and that he was deprived of his Sixth Amendment right to counsel by the denial of his multiple post-plea requests for an attorney to help him withdraw his plea. He also challenges several aspects of the sentence imposed. In a separate pro se brief, Kerr contends that the district court erroneously denied his pro se motion to withdraw his plea and challenges several pre-plea aspects of his prosecution and trial. We affirm.


In February 2009, Customs and Border Protection officers searched Kerr's vehicle as he attempted to enter the United States from Canada at the Alexandria Bay, New York port of entry. In the course of the search, the officers discovered approximately seven thousand pills containing MDMA. The officers found the pills in two locations: four thousand were concealed in black packages between the vehicle's front seats, while the remaining three thousand were stowed within the vehicle's rear interior paneling. Together, the seven thousand pills weighed 2,068 grams. Kerr was arrested and charged with one count of possession with attempt to distribute MDMA.

I. Pretrial Proceedings

Between his February 2009 arraignment and his April 2010 trial, Kerr cycled through a succession of attorneys and inundated the district court with numerous pro se requests for its assistance with his several theories of defense. First, in September 2009, Kerr moved to replace the Federal Public Defender initially assigned to his case. The district court granted the motion and, after Kerr expressed dissatisfaction with a second attorney, appointed Jeffery DeRoberts as new counsel. Several weeks later, DeRoberts informed the court that Kerr was unhappy with his representation and had requested that the court appoint a different attorney known to Kerr. The district court denied this request, explaining that Kerr was not entitled to choose assigned counsel. At a subsequent conference and suppression hearing held in October 2009, Kerr alleged that the government had improperly destroyed a number of the recovered MDMA pills, that the assigned Assistant United States Attorney (" AUSA" ) had committed perjury, and that his various attorneys had refused to file motions addressing these issues.[1] When Kerr continued to interject and press these pro se arguments, the district court halted the proceedings to inquire whether he understood the charge against him, the potential penalties he faced, and the importance of his attorney. Kerr confirmed that he was charged with possession with intent to distribute, stated that he understood the penalties, and acknowledged that his lawyer had knowledge of the law and court procedure he did not possess.

On December 9, 2009, some five days before the scheduled trial date, the district court held a final pretrial conference during

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which Kerr represented that DeRoberts was " ineffective" and in " dereliction of duty." Kerr repeatedly stated that he did not want DeRoberts to speak on his behalf or appear at trial, and that he wished to represent himself. The court acknowledged Kerr's right to self-representation and stated that DeRoberts would be available at trial as standby counsel. Kerr objected to this proposal, informing the court that he wanted to call DeRoberts as a defense witness to testify about the government's " perjury" as to the existence of certain surveillance videotapes of the border crossing. Kerr also requested that the court subpoena several other witnesses, including the then-Chief Judge of the Northern District of New York and the then-interim United States Attorney for the Northern District of New York. Kerr refused to explain his reasons for subpoenaing these last witnesses, stating only that the court would " find out" on the date of trial.

Expressing concern with Kerr's " wilder and wilder" requests and " self-destructive" decisions, the district court adjourned the trial and ordered him, pursuant to 18 U.S.C. § 4241(a), to undergo a mental competency examination. After examining Kerr, psychologists at the Federal Medical Center (" FMC" ) found him competent to stand trial and presented those results in a forensic medical report dated March 19, 2010. The report described Kerr as " an obstinate, strong-willed, and opinionated individual" whose dissatisfaction with his attorneys stemmed not from " psychotic symptoms," but rather from " his belief that his attorneys ha[d] not done sufficient work to mount an adequate defense." The report also explained that Kerr's defensive strategy of accusing the AUSA of perjury, while possibly imprudent, was not evidence of incompetence. In sum, the report concluded that Kerr was able to assist his attorney in preparing a defense if he so chose, and that there was no " objective evidence" that he suffered from " a mental disorder which would impair his ability to understand the nature and consequences of the court proceedings against him."

The district court reconvened on March 31, 2010. On that date, Kerr did not permit DeRoberts to sit with him at counsel table. He adamantly expressed his desire to represent himself with the assistance only of standby counsel, insisting that the results of the competency evaluation proved his ability to do so. The court granted DeRoberts's resulting motion to withdraw on the ground that there had been a complete breakdown in attorney-client communication. In his stead, the court appointed Robert Wells as standby counsel and directed Kerr to consult with him. At the close of the conference, the court scheduled trial to begin on April 14, 2010 and explained to Kerr that it would ask him a series of questions at the beginning of trial to ensure he fully understood the implications of self-representation.

II. Trial and Guilty Plea

On the scheduled trial date, Kerr appeared with Wells as standby counsel. Before jury selection, the district court stated that it had previously " advised [Kerr] of the disadvantages of representing [himself]" and inquired of Kerr whether that remained his intention. Kerr confirmed that it was. The court cautioned him that self-representation was " very difficult" and that, despite his pro se status and lack of legal training, he was required to follow the court's instructions and comply with the rules of evidence and procedure. When Kerr renewed his request to subpoena three witnesses--his former attorney, the former ...

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