United States v Simpson

Simpson appealed his drug and firearms convictions and sentences. The panel, 2-1, affirmed in part, reversed in part and remanded for a new trial in part. The majority held there was no error in denying Simpson motion to represent himself as the motion was ambiguous as it contained references to future discovery and was coupled with a motion to continue made on the first day of trial and thus could be interpreted as conditional on receiving the continence as Simpson stated he was unprepared to proceed and the motion was also untimely as Simpson admitted he planned on self-representation two weeks before trial, actually field papers with the court during that period yet failed to move for self –representation, he had made a prior trial day motion to continue and had been warned not to make another one. It there was no abuse of discretion in denying the continuance as the inconvenience to the court, prosecution witnesses and jurors provided a basis to reject it. It held there was no abuse of discretion in the district court’s decision to not allow Simpson to examine the hard drive of a camera which had recorded events at his house as he could not prove what was on the hard drive and thus could not prove materiality or a Brady violation and there was no bad faith action by the police as the hard drive crashed which is an innocent explanation for the lack of footage. The majority held that the district court erred by not instructing the jury that the government had to prove intent to possess as part of the constructive possession theory as that requirement was adopted by an earlier panel in a different case during the pendency of this appeal. It held the drug conviction was unaffected as the jury necessarily had to find Simpson intended to possess the drugs he intended to sell. It held that two convictions involving a shotgun were not reversible as there was unrebutted evidence of Simpson handling it and that he tried to sell it. As to the remaining 10 counts, the majority reversed as the outcome could have been different given the credibility issues with the informant in this case and the sparse evidence that any possession took place on or about the date charged in the indictment. As to the affirmed convictions, the panel held the reckless endangerment enhancement was proper here as Simpson rammed into a SWAT vehicle after being told to put up his hands and he had the ability to see that police were around his car. The dissent argued that Simpson’s written request to represent himself was unambiguous, that the district court never ruled the motion as made for purposes of delay and the record reflects that the motion was made after trial counsel refused to file motions that Simpson wanted field. While agreeing with the majority about the camera footage, it argued that if there is a new trial, Simpson should be allowed to argue that, under Rule of Criminal Procedure 16, footage on the hard drive could be used to impeach the informant by showing h=the informant was not at the house on the date claimed and that no traffic consistent with drug trafficking happened either especially as the government has the hard drive and it would be unfair to not allow the new motion for access.