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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 2004 Decided July 2, 2004
No. 03-3037
UNITED STATES OF AMERICA,
APPELLEE
v.
LYDELL ELLERBE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00352–01)
Dennis M. Hart, appointed by the court, argued the cause
for the appellant.
Valinda Jones, Assistant United States Attorney, argued
the cause for the appellee. Roscoe C. Howard, Jr., United
States Attorney, and John R. Fisher, Roy W. McLeese III
and Thomas C. Taylor, Assistant United States Attorneys,
were on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, HENDERSON and ROBERTS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Appellant Ly-
dell Ellerbe appeals his conviction of six counts of unlawfully
distributing narcotics and transporting firearms and his sen-
tence therefor. Ellerbe contends the trial court deprived him
of his right to legal representation under the Sixth Amend-
ment of the United States Constitution and his speedy trial
right under the Interstate Agreement on Detainers (IAD).
We reject his IAD argument in toto and his Sixth Amend-
ment objection insofar as it relates to his trial and conviction.
We agree, however, that the trial court denied him his right
to counsel at sentencing and therefore remand for the court
to offer Ellerbe the option to be resentenced with assistance
of counsel.
I.
During 2000 Ellerbe was videotaped selling undercover
police officers the following contraband items: ten assorted
firearms on April 10, a shotgun, two handguns and ten
dilaudid1 tablets on May 5, fifteen boxes of shotgun shells and
ten dilaudid tablets on June 26, fifty dialudid tablets on July
19 and five-hundred dilaudid tablets on August 7. Based on
these transactions, on October 19, 2000, Ellerbe was indicted
on two counts of interstate transportation of firearms in
violation of 18 U.S.C. § 922(a)(1)(A) (counts one and two),
four counts of unlawful distribution of dilaudid in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C) (counts three, five, six and
seven) and one count of using, carrying or possessing a
firearm during the commission of a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1) (count 4). A bench warrant
issued and, because Ellerbe was then incarcerated by the
Virginia Department of Corrections, was lodged as a detain-
1Dilaudid is a brand-name prescription painkiller containing hy-
dromorphone, a Schedule II controlled substance under 21 U.S.C.
§ 812. See 21 C.F.R. § 1308.12(b)(1)(11). United States v. Sha-
bazz, 933 F.2d 1029, 1030 (D.C. Cir. 1991).
3
er2 against his release. On March 26, 2001 the United States
received a request for disposition of the charges in the
indictment under the IAD, to which both the Commonwealth
of Virginia and the District of Columbia are signatories and
which provides for a speedy trial (within 180 days of a
prisoner’s request for final disposition) of a prisoner incarcer-
ated in a contracting state against whom a detainer has been
lodged based on an untried indictment in another contracting
state. 18 U.S.C. app. 2, § 2, art. iii. On March 22 the
district court issued a writ of habeas corpus prosequendum
pursuant to which Ellerbe was transported to the District of
Columbia. He was provided counsel from the Office of the
Public Defender which represented him at his arraignment on
May 8, 2001, during which a status hearing was set for June
6, 2001.
At the June 6 hearing Ellerbe requested new counsel and
the court agreed to appoint new, private counsel and to hold
another status conference after the appointment. The court
announced that the time lapse between then and the next
status conference would be ‘‘excluded from the speedy trial
calculation at [Ellerbe’s] own request.’’ 6/06/01 Tr. at 9.
Ellerbe agreed to the exclusion.
At the next conference, on June 14, 2001, new appointed
counsel entered an appearance on Ellerbe’s behalf. The
court set a trial date of July 24 and directed Ellerbe’s counsel
to file any pre-trial motions within two weeks. The court
informed the parties it would ‘‘adjust the trial schedule to the
motions.’’ 6/14/01 Tr. at 5. On July 24, the date on which the
trial had been scheduled to begin, Ellerbe complained to the
court of his lawyer’s ‘‘ineffective assistance’’ in refusing to file
motions Ellerbe had requested. His counsel informed the
court he could not in good conscience file the requested
motions, explaining that he and Ellerbe were having commu-
2 A ‘‘detainer TTT is a request by the State’s criminal justice
agency that the institution in which the prisoner is housed hold the
prisoner for the agency or notify the agency when release is
imminent.’’ New York v. Hill, 528 U.S. 110, 112 (2000) (citing Fex
v. Michigan, 507 U.S. 43, 44 (1993)).
4
nication problems. The court then discussed with Ellerbe the
motions he wished to file. During the discussion, Ellerbe
revealed he had filed complaints against his lawyer with the
bar associations of both Virginia and the District of Columbia.
The lawyer then moved to withdraw and the court again
suspended the speedy trial clock until a third lawyer could be
appointed, to which Ellerbe again agreed. On July 25 the
court requested a new lawyer to represent Ellerbe but she
declined after Ellerbe told her he did not wish her to repre-
sent him.
On September 6, 2001 the court held a status conference to
determine Ellerbe’s competence both to stand trial and to
represent himself. A lawyer from the Public Defender’s
Office was appointed, temporarily, to represent Ellerbe at the
hearing. After temporary counsel reported to the court that
Ellerbe felt he lacked the legal knowledge to represent
himself and wished the assistance of counsel, the court ad-
vised Ellerbe that it would appoint a fourth lawyer but that
the lawyer would be the last such appointment. It then
ordered the case ‘‘continued until the entry of an appearance
of the next—and last—attorney that Mr. Ellerbe will have.’’
9/6/01 Tr. at 18.
In a memorandum dated October 10, 2001 the newly ap-
pointed counsel, Edward Sussman, advised the court that he
did ‘‘not see how the standard attorney-client relationship will
work in this case.’’ Gov’t Rec. Mat. tab L, at 1. He
therefore suggested that ‘‘the court explore having the defen-
dant act as his own counsel with an attorney acting in an
advisory capacity.’’ Id. at 1-2. At a status hearing on
October 12, 2001 the court appointed Sussman as Ellerbe’s
legal advisor and set a motions hearing for November 13,
2001. At the motions hearing, Ellerbe argued on his own
behalf, with Sussman interceding sporadically. At the conclu-
sion of the hearing Ellerbe complained that the court itself
had acknowledged he was not knowledgeable enough to rep-
resent himself. The court then offered (disregarding its
previous ultimatum) to appoint another lawyer to represent
Ellerbe. Ellerbe emphatically turned down the offer and
stated: ‘‘No matter where it takes me[,] I’ll continue the way
5
I’m going.’’ 11/13/2001 Tr. at 37. At a subsequent hearing
on November 30, 2001, when the court expressed concern
about Ellerbe’s competence to represent himself, Ellerbe
replied: ‘‘[Y]ou were the one who told me that I had to
represent myself’’ but then continued: ‘‘That’s the way I want
it to be.’’ 11/30/01 Tr. at 4. Uncertain of Ellerbe’s compe-
tence, the court ordered him committed for psychological
evaluation.
In a report filed with the district court on January 22, 2002,
the government psychologists who examined Ellerbe stated
he was ‘‘not viewed as suffering from a significant mental
disease or defect’’ that would render him ‘‘not able to under-
stand the charges, court procedures, or adequately assist with
his defense provided he chooses to do so’’ but advised that
‘‘[b]y virtue of his limited educational opportunities, below
average mental ability and moderate paranoid traits’’ they did
‘‘not view him as capable of conducting his own self defense.’’
Gov’t Rec. Mat. tab P, at 7. At a conference on March 7,
2002, the court agreed that Ellerbe was competent to stand
trial but also concluded that ‘‘by decree of the Supreme
Court’’ he was therefore competent to represent himself as
well. 3/7/02 Tr. at 1-2. The court nonetheless ‘‘implore[d]’’
Ellerbe not to do so and Ellerbe relented. Id. at 2. He
consented to be represented by Sussman with the under-
standing that he would listen to his counsel’s advice and not
revisit motions the court had already resolved. Trial was
scheduled for June 18, 2002.
A few weeks later Ellerbe wrote the court complaining that
Sussman would not file motions he wished filed. In response,
the court conducted a motions hearing on March 28, 2002 at
which Ellerbe stated he was ‘‘going to represent [him]self’’
with Sussman returning to the status of legal advisor.
3/28/02 Tr. at 43. The court reluctantly acceded.
At a final pre-trial hearing on April 25, 2002 the court
addressed a claim, proffered by Ellerbe for the first time,
that his speedy trial right under the IAD had been violated.3
3Although Ellerbe had previously claimed violation of his rights
under the Speedy Trial Act, 18 U.S.C. § 3161, this was the first
6
The court found no violation because most, if not all, of the
continuances ‘‘were caused by Mr. Ellerbe’s own decisions
about lawyers in the case.’’ 4/25/02 Tr. at 19.
On June 19, 2002, at the conclusion of a three-day trial, the
court dismissed count four of the indictment, alleging use of a
firearm during a drug trafficking offense, and the jury con-
victed Ellerbe of the remaining six counts. Following the
verdict, the court relieved Sussman of his appointment and on
June 20, 2002 issued an order formally declaring that Suss-
man had ‘‘no duty of representation in connection with post-
trial motions, sentencing, or appeal.’’ Gov’t Rec. Mat. tab T,
at 2. Ellerbe represented himself at sentencing and the
court, adopting the recommendations of the pre-sentence
report, sentenced Ellerbe to a total term of 108 months’
incarceration to be followed by three years of supervised
release.4
II.
We address separately the arguments Ellerbe urges on
appeal.
A. Right to Counsel
First, Ellerbe contends the district court deprived him of
his Sixth Amendment right to counsel by forcing him to
represent himself in the criminal proceeding. We reject this
claim as it relates to the trial portion of the proceeding
because Ellerbe knowingly, intelligently and voluntarily
waived his right to counsel and elected to represent himself
during this phase. We further conclude, however, that the
district court erred in failing to ascertain whether the waiver
extended beyond the trial to the sentencing phase.
time he had invoked the IAD since his initial request for final
disposition on March 26, 2001.
4The judge sentenced Ellerbe to concurrent terms of 60 months
on counts one and two and concurrent terms of 108 months on
counts three, five, six and seven.
7
‘‘The Sixth and Fourteenth Amendments of our Constitu-
tion guarantee that a person brought to trial in any state or
federal court must be afforded the right to the assistance of
counsel before he can be validly convicted and punished by
imprisonment.’’ Faretta v. California, 422 U.S. 806, 807
(1975). Concomitantly, ‘‘[t]he Sixth Amendment right to the
assistance of counsel implicitly embodies a ‘correlative right
to dispense with a lawyer’s help’ ’’ so that ‘‘ ‘an accused, in the
exercise of a free and intelligent choice, and with the consid-
ered approval of the court, may waive trial by jury, and so
likewise may he competently and intelligently waive his Con-
stitutional right to assistance of counsel.’ ’’ Id. at 813, 814
(quoting Adams v. United States, 317 U.S. 269, 279, 275
(1942)). The district court repeatedly and emphatically en-
couraged Ellerbe to accept the assistance of counsel but
Ellerbe, with equal determination, rejected the offers of legal
assistance. Although he sporadically, and unenthusiastically,
accepted appointment of counsel, in each instance he quickly
reversed course, expressing dissatisfaction with counsel’s per-
formance. In the end, recognizing his limited legal abilities,
he accepted Sussman’s assistance as standby advisory counsel
while yet insisting on conducting his own defense at trial.
On appeal Ellerbe asserts that he did not knowingly waive
his right to counsel because he repeatedly acknowledged his
inability to defend himself—a view shared by the federal
psychologists who evaluated him. The Supreme Court has
expressly held, however, that a defendant who is competent
to stand trial is also competent to waive his right to assis-
tance of counsel—all that is necessary is that he do so
intelligently and voluntarily. See Godinez v. Moran, 509 U.S.
389, 391 (1993) (‘‘[T]he competency standard for pleading
guilty or waiving the right to counsel is [not] higher than the
competency standard for standing trial.’’); id. at 401-02
(‘‘competence to waive’’ right to assistance of counsel is ‘‘a
shorthand for the ‘intelligent and competent waiver’ require-
ment of Johnson v. Zerbst[, 304 U.S. 458 (1938)]’’). ‘‘[T]he
defendant’s ‘technical legal knowledge’ is ‘not relevant’ to the
determination whether he is competent to waive his right to
counsel’’; his ‘‘ability to represent himself has no bearing
8
upon his competence to choose self-representation.’’ Id. at
400 (quoting Faretta v. California, 422 U.S. 806, 834 (1975)
(emphasis original)). Ellerbe’s dogged insistence on repre-
senting himself at trial constituted an intelligent and volun-
tary waiver of his right to appointed counsel at trial and we
will therefore not entertain his Sixth Amendment claim on
appeal. Cf. United States v. Fazzini, 871 F.2d 635, 641-42
(7th Cir. 1989) (‘‘defendant who refused to cooperate with
numerous appointed counsel, who was warned of the conse-
quences that his failure to cooperate would have, and who
insisted, despite his conduct, that he was not waiving his right
to appointed counsel TTT knowingly and intelligently waived
his right to appointed counsel’’); United States v. Moore, 706
F.2d 538, 540 (5th Cir. 1983) (‘‘conclud[ing] that a persistent,
unreasonable demand for dismissal of counsel and appoint-
ment of new counsel TTT is the functional equivalent of a
knowing and voluntary waiver of counsel’’).
We reach a different conclusion regarding Ellerbe’s right to
counsel at sentencing. A criminal defendant is ‘‘ ‘as much
entitled to effective representation by counsel at sentencing
as at any other critical stage of his trial.’ ’’ United States v.
Green, 680 F.2d 183, 188 (D.C. Cir. 1982) (quoting United
States v. Pinkney, 543 F.2d 908, 914 (D.C. Cir. 1976); citing
American Bar Association Project on Standards for Criminal
Justice, Standards Relating to Sentencing Alternatives and
Procedures § 5.3(e) (1968)). The district court, however,
made no effort to ascertain whether Ellerbe desired repre-
sentation at sentencing. The court sua sponte discharged
Sussman at the close of the trial and did not thereafter take
any action to protect Ellerbe’s Sixth Amendment right to
further representation. As a consequence Ellerbe was left to
negotiate the United States Sentencing Guidelines unassisted
even by advisory counsel. Ellerbe also demonstrated the
‘‘likelihood of harm’’ needed to put the government to the
burden of ‘‘disprov[ing] actual injury’’ from the lack of repre-
sentation. United States v. Green, 680 F.2d at 188 (citing
United States v. Wood, 628 F.2d 554, 561 (D.C. Cir. 1980)).
In sentencing Ellerbe the district court adopted the recom-
mendation of the pre-sentence report to increase Ellerbe’s
base offense level by four levels for ‘‘possessing a firearm in
9
connection with a drug offense,’’ 9/5/02 Tr. at 8, pursuant to
U.S.S.G. § 2K2.1(b)(5). Without benefit of legal advice, El-
lerbe did not contest the increase which changed his sentenc-
ing range from 87/108 months to 108/135 months. Yet case
law supports the contention, urged by Ellerbe on appeal,
‘‘that more than ‘mere possession’ is required to establish the
possession prong’’ of section 2K2.1(b)(5) and that instead the
enhancement for possession applies when ‘‘the firearm had
some potential emboldening role in [the] defendant’s felonious
conduct.’’ United States v. Polanco, 93 F.3d 555, 566-67 (9th
Cir. 1996) (internal quotation omitted; alteration original);
see also United States v. Bowie, 198 F.3d 905, 913 (D.C.
Cir.1999) (upholding section 2K2.1 increase where defendant’s
‘‘possession of the weapon emboldened him, or appeared to,
and his reaching for the weapon showed his intent to use it to
facilitate’’ felony); Gov’t Br. at 49 (‘‘Appellant correctly states
that the mere possession of a firearm is not sufficient to
support this adjustment.’’).5 We note, however, that, if on
remand Ellerbe rejects assistance of counsel, his sentence will
stand as originally entered and that an appeal therefrom will
bear little chance of success under the applicable ‘‘plain
error’’ standard of review. See United States v. Thomas, 361
F.3d 653, 661 (D.C. Cir. 2004) (where defendant fails to raise
objection to sentence in district court, ‘‘our review is limited
to scrutiny for plain error under Federal Rule of Criminal
Procedure 52(b)’’ (citing United States v. Olano, 507 U.S. 725,
731 (1993); United States v. Joaquin, 326 F.3d 1287, 1290
(D.C. Cir. 2003))).6
5 The government argues on appeal that a section 2k2.1(b)(5)
increase is justified because Ellerbe had reason to believe the
purchasers would use the firearm in connection with a felony.
Because the government did not use this rationale below and the
sentencing judge did not rely on it, we may not uphold the increase
on this basis. See United States v. Fields, 242 F.3d 393, 397 (D.C.
Cir. 2001) (rejecting rationale on which neither sentencing judge
nor pre-sentence report relied).
6 Given the likelihood of resentencing on remand we do not reach
the substance of Ellerbe’s claim that the four-level increase consti-
tutes reversible error.
10
B. IAD Speedy Trial
The IAD provides in relevant part:
Whenever a person has entered upon a term of imprison-
ment in a penal or correctional institution of a party
State, and whenever during TTT the term of imprison-
ment there is pending in any other party State any
untried indictment, information, or complaint on the ba-
sis of which a detainer has been lodged against the
prisoner, he shall be brought to trial within one hundred
and eighty days after he shall have caused to be deliv-
ered to the prosecuting officer and the appropriate court
of the prosecuting officer’s jurisdiction written notice of
the place of his imprisonment and his request for a final
disposition to be made of the indictment, information, or
complaintTTTT
18 U.S.C. app. 2, § 2, art. iii(a). Ellerbe contends his speedy
trial right under this provision was violated because he was
not tried within 180 days after he delivered his request for
final disposition on March 26, 2001. We disagree.
The IAD ‘‘is designed ‘to encourage the expeditious and
orderly disposition of TTT charges [outstanding against a
prisoner] and determination of the proper status of any and
all detainers based on untried indictments, informations, or
complaints.’ ’’ United States v. Mauro, 436 U.S. 340, 343
(1979) (quoting 18 U.S.C. app. 2, § 2, art. i (alteration origi-
nal)). Its strictures, however, are far from absolute. The
IAD’s text expressly directs that the period be tolled ‘‘when-
ever and for as long as the prisoner is unable to stand trial,’’
18 U.S.C. app. 2, § 2, art. vi(a), which courts have construed
to include those periods of delays caused by the defendant’s
own actions. See United States v. Johnson, 953 F.2d 1167,
1172 (9th Cir. 1992) (IAD period is tolled when delay is
‘‘excludable’’ under Speedy Trial Act, 18 U.S.C. § 3161, ‘‘be-
cause it is attributable to a defendant’s own motions’’); Unit-
ed States v. Cephas, 937 F.2d 816, 819 (2d Cir. 1991) (IAD art.
vi ‘‘allows exclusions of all those periods of delay occasioned
by the defendant’’) (internal quotations omitted); United
States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988) (‘‘periods
11
of delay occasioned by the multiple motions filed on behalf of
the defendant[ ] operate to toll the running of [IAD] Articles
III and IV’’); United States v. Walker, 924 F.2d 1, 5 (1st Cir.
1991) (‘‘Courts have consistently applied this language ‘to
exclude all those time periods of delay occasioned by the
defendant.’ ’’ (quoting United States v. Taylor, 861 F.2d 316,
321 (1st Cir. 1988))). In this case the delays to which Ellerbe
objects were caused by Ellerbe’s own conduct—notably his
penchant for frivolous motions and his erratic stance on legal
representation.
On June 6, 2001 Ellerbe requested new counsel, stalling the
proceedings until counsel could be appointed. When new
counsel entered an appearance on June 14, 2001, the court set
a trial date of July 24 and gave Ellerbe’s counsel two weeks
to file pre-trial motions. On July 24, 2001 Ellerbe disclosed he
had filed a complaint against his second lawyer requiring
appointment of yet a third lawyer, whom Ellerbe discharged
shortly thereafter. All of this prompted the September 6,
2001 competency conference and Sussman’s appointment.
The next two months were largely consumed by the need for
the newly appointed Sussman to become familiar with the
case and to file pre-trial motions and by Ellerbe’s changing
position on legal representation (as well as his filing of yet
more motions). After the November 30 hearing an additional
delay of more than one month was caused by the need for the
competency evaluations, which necessitated the follow-up
hearing on March 7, 2002. Thereafter, more time was re-
quired for the reinstated Sussman to file motions and prepare
for trial and for the court to address additional pre-trial
motions filed by Ellerbe both before and after he resumed
self-representation. In sum, given Ellerbe’s obstructive con-
duct throughout the period from arraignment to trial, he
cannot now complain of the many delays his conduct caused.
* * *
For the foregoing reasons, Ellerbe’s conviction is affirmed
and his sentence is remanded with instructions to the trial
12
court to resentence Ellerbe with the representation of counsel
should Ellerbe so elect.
So ordered.