The opinion of the court was delivered by: Reagan, District Judge
2008 was not a good year for Ronfredrick Boling. In January, a grand jury indicted Boling on three narcotics charges -- possession with intent to distribute crack cocaine on October 3, 2007 and distribution of crack cocaine on October 18 and November 5, 2007, all in violation of 21 U.S.C. § 841. The year concluded with December guilty verdicts on all charges, following a three-day jury trial.
The eleven-month period between Boling's indictment and his conviction -- time properly excluded under the Speedy Trial Act -- included multiple trial continuances at Boling's request and a curious chronology of counsel entering and exiting on his behalf. Boling insisted on representing himself at trial, a decision that affected the presentation of evidence before the jury (about which Boling now complains). An overview of the procedural case history and trial testimony aids analysis.
B. Key Facts and Procedural History
Boling's indictment was suppressed until he was arrested. He appeared before Magistrate Judge Frazier on March 31, 2008. Judge Frazier appointed the Federal Public Defender (FPD)'s Office to represent Boling, and trial was set for June 2, 2008. Attorney Jared Martin of the FPD's office appeared at Boling's arraignment. Three days later Assistant FPD Todd Schultz entered his appearance on Boling's behalf.
All went smoothly until mid-May 2008, when Boling moved for a hearing on the "status" of his counsel. The undersigned Judge immediately scheduled a hearing. Before the hearing was held, Boling filed a second pro se motion -- this time asking Schultz to withdraw as defense counsel. The motion (Doc. 17) provided no reason whatsoever for this request, simply stating: "That Ronfredrick Boling wants attorney Todd Schultz to withdraw as counsel."
The Court held a hearing May 23, 2008, at which Boling stated that he did not "see eye to eye" with Schultz, it seemed Schultz wasn't helping him "fight," and he perceived that Schultz wanted him to cooperate (a course of action Boling was firmly against from the outset). After being thoroughly apprised of the consequences of switching attorneys (including the continuance of his trial date), Boling persisted in his request for different counsel. The Court granted the motion and appointed CJA Panel attorney G. Ethan Skaggs. Skaggs moved on Boling's behalf to continue trial at least 60 days. The motion was filed with a speedy trial waiver executed by Boling. The Court granted Boling's motion and continued trial to September 15, 2008.
Less than 30 days later, Boling filed a pro se motion seeking to dismiss his indictment based on a violation of the Speedy Trial Act. The Court struck the pro se motion and cautioned Boling against improperly filing pro se motions while represented by counsel.
Two weeks later, Boling moved pro se "to withdraw counsel" (Doc. 26), noting only that "Ronfredrick Boling wants attorney Ethan Skaggs to withdraw as counsel." The Court convened a hearing July 14, 2008, listened to Boling's reasons for requesting another attorney change, found those grounds meritless, denied the motion for new appointed counsel, and denied "at this time" Boling's oral motion to represent himself in this serious criminal matter. The July 14th Order outlined the steps Boling should take if, after he more fully considered the ramifications of proceeding pro se, he still wished to represent himself at trial (Doc. 29).
Just prior to his September 15th trial date, Boling indicated a desire to enter a guilty plea. The change of plea hearing was set September 11, 2008. When the parties were assembled in the courtroom on September 11th, however, Boling advised the Court that he wished to proceed to trial rather than plead guilty. Boling then orally moved to continue his trial (just four days away at that point). The Government interposed no objection to the continuance, and the Court granted the motion, moving trial to December 1, 2008 but cautioning Boling that no further continuances would be permitted: "He must proceed to trial on December 1, 2008 (or enter a guilty plea prior to that date)" (Doc. 34).
Three days after that Order was entered, Boling filed yet another "Motion to Withdraw Counsel," which the Court denied on September 17, 2008. Boling filed a pro se motion to reconsider the ruling on September 26, 2008, which the undersigned Judge denied on September 29, 2008 (Doc. 39), noting: "The motion presents no new issues, basis or grounds on which to 'reconsider' the Court's prior denial of Boling's motion to disqualify counsel. Trial will continue, as scheduled, on December 1, 2008, with attorney Ethan Skaggs representing Mr. Boling." Trial preparation continued in earnest. Attorney Skaggs filed and responded to motions in limine on Boling's behalf.
Ten days before the December 1st trial was to start, Skaggs filed (for Boling) a motion asking the Court to relieve Skaggs from representation and permit Boling to proceed pro se. Boling also filed his own pro se motion "to withdraw counsel" (Doc. 59) and pro se motion to dismiss the indictment (Doc. 60). The undersigned Judge heard and ruled on all these matters at in-court hearing on November 25, 2008. After conducting a full Faretta colloquy, the Court granted Boling's motions, relieved Skaggs from his role as counsel of record, permitted Boling to proceed pro se, and appointed Skaggs as standby counsel.
At the November 25th hearing, Boling tendered a list of witnesses he wanted subpoenaed for trial. (The list was later e-filed as Doc. 61). After inquiring as to the basis for calling each witness (e.g., whether the person was an alibi witness or perhaps had seen one of the alleged drug transactions) the Court ruled, ultimately issuing writs of habeas corpus ad testificandum for Anthony E. Moore and Tyrone Jackson.
Trial commenced December 1, 2008. Before jury selection, the Court offered Defendant Boling a final chance to elect to not proceed pro se. Boling declined. The undersigned Judge then explained the limited role which standby counsel (attorney Skaggs) would assume in the trial. Defendant acknowledged that he understood this. The undersigned Judge also discussed in detail why he was denying (or granting) Boling's request to subpoena certain individuals as witnesses.
The prosecutor and Defendant Boling made opening statements. The gist of Boling's opening statement was that the police officers falsified their reports, that the officers did not really recover crack cocaine from Boling on October 3, 2007, that Boling was a drug user but never a drug dealer, and that an eager confidential informant had worked with an overzealous police officer to "set up" Boling on the distribution charges stemming from the alleged sales on October 18 and November 5, 2007.
The Government's case-in-chief commenced with evidence regarding the October 3, 2007 charge for possession with intent to distribute cocaine base. The Government called Mt. Vernon Police Officer Kevin Jackson. Jackson testified regarding his arrest and search of Defendant Boling on October 3rd, which occurred while Jackson was investigating the report of a burglary at the residence of Travis Taylor (with whom Boling was living at that time). During a pat-down of Boling, Kevin Jackson recovered a baggy with 16 individual packets of what turned out to be crack cocaine. Boling's cross examination of Kevin Jackson focused on the fact that Kevin's call for back-up was responded to by his twin brother, Officer Kent Jackson.
Central to the Government's proof of the two distribution charges (occurring on October 18 and November 5, 2007) was the testimony of confidential informant Jeffrey a/k/a "Country" McCurdy, who had prior convictions for drug offenses and was a tattoo artist living in Mt. Vernon, Illinois in 2006 and 2007. Although sober by the date of the trial in this case, McCurdy acknowledged that he had used crack cocaine every day or every other day while living in Mt. Vernon. On cross examination by Boling, McCurdy admitted that he had been addicted to drugs since he was 12 years old, that he had bought drugs and shared drugs, that he had sold drugs to support his habit, and that he had even used some of the money he received from his informant work for the Mt. Vernon Police Department to purchase drugs.
McCurdy said he knew Ronfredrick Boling by the street name "Chaos" and bought drugs from Boling twice -- October 18, 2007 and November 5, 2007. McCurdy testified regarding both controlled buys of crack cocaine from Boling, large portions of which were captured on videotape and played for the jurors at trial.
Well-versed in the habits of drug dealers and users, McCurdy testified that it was common for dealers to carry crack in their mouth. Over Defendant's objection, McCurdy testified that this is what Boling was doing on one of the videotapes when seen making a gesture toward his mouth. The videotape shows a rock of crack-like substance in McCurdy's hand immediately after this gesture. When he took the stand, Boling denied concealing the crack in his mouth and testified that his hand-to-mouth gesture was just a nervous habit resulting from a broken tooth.
After the cross, re-direct and re-cross of Jeff McCurdy, the Government called Detective Ron Almaroad, a 19-year officer of the Mt. Vernon, Illinois Police Department who has headed up the Drug Task Force for the past ten years. Detective Almaroad is known on the streets of Mt. Vernon as "Smiley." His primary responsibility as a police officer has been to investigate drug cases. He has been involved in approximately 170 federal narcotics cases and thousands of state narcotics prosecutions in Jefferson County, Illinois. He has vast experience with the packaging and distribution of cocaine base in the form of "crack" and testified regarding what a typical user would purchase or carry on his person (as opposed to a dealer). Almaroad ...