United States v. Gerald Carlson

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2019
• Docket: 18-30096
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 07 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30096

Plaintiff-Appellee, D.C. No. 3:17-cr-05188-RBL-1 v.

GERALD CLAUDE CARLSON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted October 25, 2019 Seattle, Washington

Before: CLIFTON, IKUTA, and BENNETT, Circuit Judges.

Defendant-Appellant Gerald Claude Carlson appeals from his jury trial

conviction of one count of possession with intent to distribute methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and one count of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. possession of a firearm in furtherance of a drug trafficking crime, in violation of

18 U.S.C. §§ 924(c)(1)(A) and (2). We affirm.

Carlson challenges the district court’s denial of his request to replace his

trial counsel. Under the Sixth Amendment, a defendant who hires his own attorney

has a right “to be represented by the attorney of his choice,” but this right is not

absolute. United States v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010). A

defendant “may have the counsel of his choice unless a contrary result is

compelled by purposes inherent in the fair, efficient and orderly administration of

justice.” United States v. Brown, 785 F.3d 1337, 1344 (9th Cir. 2015) (quoting

Rivera-Corona, 618 F.3d at 979). In assessing this question, a trial court has a

“wide latitude in balancing the right to counsel of choice against the needs of

fairness . . . and against the demands of its calendar.” United States v.

Gonzalez-Lopez, 548 U.S. 140, 152 (2006).

Although the district court’s description of its reasons for denying the

request may not have been stated in the clearest and most comprehensive manner,

it is apparent here that the denial was primarily based on the demands of its

calendar. The issue did not arise until the Friday before the Monday that Carlson’s

trial was scheduled to begin. Though the attorney had been representing him for

more than six months, it was on that Friday that Carlson told her that he wanted to

2 replace her. The attorney notified the court clerk that day but the matter could not

be presented to the court until the following Monday morning when trial was to

begin. By that time, a jury pool had been gathered, and counsel and witnesses

were prepared to proceed with trial. Carlson did not want to represent himself, so

he would need new counsel if the prior attorney was dismissed, but he had not

obtained or even sought another attorney by the day trial was to begin, though he

had not been in custody. In denying the request, the district court noted that its

calendar was busy, that two continuances had already been granted in the case, and

that granting the request would cause delay. The district court did not abuse its

discretion in denying the request.

Carlson also appeals the district court’s admission of expert testimony on the

drug trade by a DEA agent. First, Carlson contends that the expert’s testimony ran

afoul of our rule barring expert testimony as to “the modus operandi of drug

trafficking organizations . . . in cases where . . . the defendant is not charged with

conspiracy to distribute drugs.” United States v. Pablo Varela-Rivera, 279 F.3d

1174, 1179 (9th Cir. 2002). The testimony here, however, concerned the modus

operandi or methods of individual drug sellers, not drug trafficking organizations.

We have held that law enforcement experts “may testify as to the general practices

of criminals to establish the defendants’ modus operandi.” United States v.

3 Anchrum, 590 F.3d 795, 804 (9th Cir. 2009) (quoting United States v. Freeman,

498 F.3d 893, 906 (9th Cir. 2007)). The testimony here was of that nature.

Second, Carlson argues that the expert testimony constituted inadmissable

character or criminal profile testimony in violation of Fed. R. Evid. 404. When

such testimony makes “innocuous events indicate criminal activity,” it may be

inherently prejudicial to the defendant. United States v. Lim, 984 F.2d 331, 335

(9th Cir. 1993). Here, however, the expert testimony concerned the common

practices and methods of sellers of methamphetamine and not their character traits

or the actions of users, so it did not present such a danger. The expert witness did

not cite innocuous events as evidence of criminality. The district court did not

abuse its discretion in admitting the testimony.

AFFIRMED.