United States v. Outley

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 24, 2022
• Docket: 20-6005
• Status: Unpublished

Opinion

Appellate Case: 20-6005 Document: 010110701085 Date Filed: 06/24/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 24, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 20-6005 v. (D.C. No. 5:17-CR-00254-F-1) (W.D. Okla.) TYRONE LEROY OUTLEY,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before McHUGH, KELLY, and EID, Circuit Judges. _________________________________

During a trial related to various drug charges, Defendant Tyrone Leroy Outley

requested to proceed pro se. The district court conducted a Faretta hearing, and

found that Outley’s Sixth Amendment waiver was voluntary, knowing, and

intelligent. See Faretta v. California, 422 U.S. 806, 807 (1975). The jury convicted

Outley. In this case, we conclude the district court did not err by finding a knowing

and intelligent waiver because the totality of the circumstances demonstrates Outley

was aware of the dangers and disadvantages of self-representation. We also find that

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-6005 Document: 010110701085 Date Filed: 06/24/2022 Page: 2

the district court did not abuse its discretion in prohibiting Outley from introducing

evidence of a traffic stop. Accordingly, we affirm.

I.

On March 15, 2017, two police officers, Sergeant Kleehammer and Sergeant

Castlebury, saw a vehicle run through a stop sign in Oklahoma City. After stopping

the vehicle, Castlebury approached the driver’s side while Kleehammer made contact

with the passenger. The passenger identified himself as Tyrone Outley, whom

Kleehammer recognized from his time in the Gang Enforcement Unit when Outley

fled from police at another traffic stop on February 20, 2017. Kleehammer asked

Outley to exit the vehicle. Outley complied and an officer held Outley’s hands

behind his back to search his person. At this point, Outley pulled away and ran.

After securing Outley, police arrested him. On his person, police recovered a loaded

firearm, 119 grams of crack cocaine, $335 in cash, and a cell phone.

A grand jury indicted Outley with (1) possession of cocaine base with intent to

distribute (21 U.S.C. § 841(a)(1)), (2) possession of a firearm in furtherance of a drug

trafficking crime (18 U.S.C. § 924(c)(1)(A)), and (3) felon in possession of a firearm

(18 U.S.C. § 922(g)(1)). On February 26, 2018, the district court granted the

government’s motion to have Outley’s mental competency evaluated by a

psychologist. In that evaluation, the psychologist reported that there was no

objective evidence to indicate that Outley suffered from signs or symptoms of a

major mental disorder that would impair his ability to understand the nature and

consequences of the court proceedings against him. The psychologist found Outley

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was competent to stand trial. At the competency hearing, both the government and

defense counsel stipulated to the psychologist’s findings. Based upon its review of

the evaluation and these stipulations, the court found Outley competent to stand trial.

On June 11, 2018, Outley’s first court-appointed counsel, Edward Blau, orally

moved to withdraw as counsel. The district court granted the motion, finding an

irreparable breakdown in the attorney-client relationship. The court appointed

Joseph Wells as new counsel.

On October 9, 2018, the first day of trial, Outley requested new counsel.

Outley claimed Wells “ha[d] not prepared any defense with [him].” R. Vol. I at 547.

Wells explained that he had visited Outley in jail three times in four months, and that

they met for a few minutes before trial, but each time, “things devolved not to talking

so much about the case as to what [Outley] wasn’t going to do.” Id. at 550–51.

Nonetheless, Wells claimed he was prepared for trial. The court denied the request,

finding that Wells was adequate counsel.

On the second day of trial, Outley again requested to replace his counsel and

then to represent himself. At this point, the district court initiated a Faretta hearing

to determine whether Outley voluntarily and knowingly desired to waive his right to

counsel. Faretta, 422 U.S. at 807. The court first asked, “Mr. McGarry (sic), am I

correct in representing that it has come to the Court’s attention that you want to

represent yourself?” R. Vol. I at 636–37. Outley replied, “Yes. I’m Mr. Outley.”

Id. at 637. The court responded, “I mean Mr. Outley. Thank you.” Id.

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Next, the court asked Outley about his educational background, to which

Outley said he had not graduated high school. The court also asked whether he had

any previous experience with criminal trials. Outley stated, “I have been in hearings

and heard cross-examinations over and over with this case.” Id. Outley also pointed

to experience in a few other cases filed against him in the past, but said he had never

proceeded pro se or to trial.

The district court then asked, “Are you aware of the nature of the charges

against you and any statutory offenses that may be included within them?” Id. at

639. Outley responded, “Yes, ma’am.” Id. The court then asked him to recite those

charges. Outley stated, “The nature of my charges? Felony offense on possession

with intent to distribute cocaine base and being a felon in possession of a firearm in

furtherance of a drug trafficking crime, which would be the possession with intent.”

Id. at 639–40. Outley had recited only two of the three charges, but the court did not

follow up about the omission of the third charge. Instead, the court asked if Outley

understood he must “follow all applicable rules of evidence and of procedure.” Id. at

640. Outley responded that he understood.

The court also advised Outley, generally, of “the risks, the dangers, the

disadvantages of proceeding pro se, or without a lawyer.” Id. The court added: “You

will be proceeding along in a very complex area where experience, where

professional training are greatly to be desired, and any attorney might be aware of

possible defenses to the charges that defendant is not.” Id. at 640–41. The court also

opined that “certainly as the judge in this matter, I believe it would be in the best

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interest of you as the defendant to be represented by an attorney. I can’t make you do

that.” Id. at 641. While the court later repeated to Outley that court-appointed

counsel was in his best interest, Outley continued to assert that self-representation

was his “only option,” and that he believed he could effectively fight for his own

rights. Id. The court then suggested appointing Wells as standby counsel, and

Outley agreed.

At this point, before any waiver decision had been made, the district court

permitted the government to ask Outley a few more questions. The government then

asked Outley if he understood that he was “charged with three crimes and not two

crimes,” emphasizing that he faced three separate charges: “One would be possession

of cocaine base with intent to distribute, another is possession of a firearm in

furtherance of a drug trafficking crime, and the third is being a felon in possession of

a firearm.” Id. at 645. Outley responded, “I do understand . . . but do they not all

count as one count?” Id. The government replied, “No, sir. They’re actually

separate counts with separate elements that need to be proven.” Id. As the

government continued into another statement, Outley stopped it and stated, “Okay.

Yes, I do understand.” Id. The government then specifically advised Outley of the

penalties under Counts One, Two, and Three. Throughout the government’s

inquiries, Outley continued to reiterate that he understood each item presented to

him. After some additional explanation, the government ended its inquiry.

The district court ultimately found Outley’s waiver to be voluntary, knowing,

and intelligent, and that he could “therefore represent himself pro se.” Id. at 650.

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The court appointed Wells as standby counsel and gave Outley an additional “period

of time to prepare.” Id. at 651. Outley then requested a continuance for more time to

prepare, and after hearing argument from each side, the court denied the request. The

jury convicted Outley on all charges.

Prior to sentencing, the Supreme Court issued Rehaif v. United States, holding

that, in a conviction under 18 U.S.C. § 922(g), the “Government must prove both that

the defendant knew he possessed a firearm and that he knew he belonged to the

relevant category of persons barred from possessing a firearm.” 139 S. Ct. 2191,

2200 (2019). In response, the government moved to dismiss Count Three because the

jury was not properly instructed under Rehaif. The district court granted the motion.

The court sentenced Outley to 360 months of imprisonment, followed by fifteen

years of supervised release. Outley timely appealed.

II.

a.

We review “the validity of a waiver of the right to counsel de novo and the

underlying factual findings for clear error.” United States v. Hansen, 929 F.3d 1238,

1248 (10th Cir. 2019). Under this review, we note that harmless error is precluded

from this case because acceptance “of an invalid waiver in violation of a defendant’s

Sixth Amendment rights necessarily leaves him entirely without the assistance of

counsel at trial.” United States v. Allen, 895 F.2d 1577, 1580 (10th Cir. 1990).

The U.S. Constitution guarantees every criminal defendant the right to

assistance of counsel, which includes the “right to proceed without counsel when he

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voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at 807. To determine

whether a defendant effectively waived this right, we conduct a two-part test. United

States v. Taylor, 113 F.3d 1136, 1140 (10th Cir. 1997). First, we examine whether

the waiver was voluntary. Id. This prong is not implicated in this case. Second, we

examine whether the waiver was made knowingly and intelligently. Id.; see also

United States v. Williamson, 859 F.3d 843, 862 (10th Cir. 2017) (requiring courts to

ensure the defendant is aware of the dangers and disadvantages of self-

representation). This second prong is the focus of our analysis.

The “tried-and-true method” for a district court to assess whether a waiver is

made knowingly and intelligently involves a “thorough and comprehensive formal

inquiry of the defendant on the record,” tailored to the particular circumstances of the

case. Hansen, 929 F.3d at 1249. This inquiry—often called a Faretta hearing—

takes place in the context of a waiver hearing, and is intended to ensure the

defendant’s comprehension of several factors, which include: “the nature of the

charges, the statutory offenses included within them, the range of allowable

punishments thereunder, possible defenses to the charges and circumstances in

mitigation thereof, and all other facts essential to a broad understanding of the whole

matter.” Von Moltke v. Gillies, 332 U.S. 708, 724 (1948); see also Hansen, 929 F.3d

at 1250 (referring to these as the “Von Moltke factors”).

While the district court plays a crucial role in conducting this process, the

primary focus of the inquiry remains whether the defendant knowingly waived the

right to counsel based on the totality of the circumstances, not the court’s rote

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satisfaction of the Von Moltke factors. See Hansen, 929 F.3d at 1251, 1253–54.

Before granting waiver, the district court’s duty is to “ensure that a defendant’s

waiver of counsel is knowing and intelligent.” Id. at 1255. The court must

“investigate as long and as thoroughly as the circumstances . . . demand.” Von

Moltke, 332 U.S. at 723–24. But the Supreme Court has not “prescribed any formula

or script to be read to a defendant who states that he elects to proceed without

counsel.” Iowa v. Tovar, 541 U.S. 77, 88 (2004). We take a “pragmatic approach” in

“defining the means that a trial judge may use to reasonably ensure that the defendant

possesses such knowledge and understanding.” Hansen, 929 F.3d at 1253 (citing

United States v. Padilla, 819 F.2d 952, 959 (10th Cir. 1987)); see also Patterson v.

Illinois, 487 U.S. 285, 298–300 (1988); Hansen, 929 F.3d at 1253, 1255 (“[We] do

not mandate a formalistic and rigid adherence to Von Moltke-related inquiries as the

sole means for determining whether a defendant’s waiver . . . is knowing and

intelligent.”). The district court is not “required in every instance to conduct a

comprehensive formal inquiry . . . in which it propounds queries to a defendant

regarding each and every Von Moltke factor in order to avoid reversal of its finding

that the defendant’s waiver of the right to counsel was knowing and intelligent at the

time it was made.” Hansen, 929 F.3d at 1254. Thus, while we certainly emphasize

the court’s solemn duty to ensure the defendant’s rights are knowingly and

intelligently waived, we look to the totality of the circumstances to determine

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whether the defendant knowingly and intelligently waived his right to counsel.1 See

id. at 1255; United States v. Turner, 287 F.3d 980, 983 (10th Cir. 1987) (quoting

United States v. Willie, 941 F.2d 1384, 1389 (10th Cir. 1991)); United States v. Vann,

776 F.3d 746, 763 (10th Cir. 2015).

b.

Because this is a fact-intensive inquiry, we begin this analysis by thoroughly

reviewing the relevant facts from the Faretta hearing. Before the hearing, the district

court had previously found Outley mentally competent to stand trial, relying upon a

medical professional, as well as the stipulation of counsel. The court had already

granted a withdrawal request from Outley’s first court-appointed counsel due to an

irreparable breakdown in the attorney-client relationship. On the first day of trial,

Outley requested that Wells, his second court-appointed counsel, be dismissed,

arguing that Wells “has not prepared any defense with me.” R. Vol. I at 547–48.

Wells explained that he was indeed prepared for trial, that he had visited Outley a

number of times, but that Outley had not been cooperating. The district court denied

1 Outley points out that this court has previously stated that the Von Moltke factors “must be conveyed to the defendant by the trial judge and must appear on the record so that our review may be conducted without speculation.” See Padilla, 819 F.2d at 957 (emphasis in original) (citing United States v. Gipson, 693 F.2d 109, 112 (10th Cir. 1982), overruled on other grounds by United States v. Allen, 895 F.2d 1577 (10th Cir. 1990)). But we rejected a similar contention in Hansen. In that case, the defendant cited Padilla and Gipson for the proposition that the trial judge must explicitly inquire into all the Von Moltke factors on the record. Hansen, 929 F.3d at 1253. Hansen distinguished those cases by highlighting where each case acknowledged that the waiver-of-counsel inquiry used a “pragmatic approach,” and is based on the totality of the circumstances, not any formal recitation or “precise litany” of the district court’s language. See id. at 1253–54. 9 Appellate Case: 20-6005 Document: 010110701085 Date Filed: 06/24/2022 Page: 10

the request. On the second day of trial, Outley again requested new counsel, and

eventually requested that he represent himself. This request marked the start of the

Faretta hearing.

To begin, the court asked Outley whether proceeding pro se was what he

wanted to do. Outley responded with a clear, “Yes.” Id. at 636. This remained

Outley’s answer throughout the hearing, despite several opportunities to change his

mind and the court’s repeated opinion that this was not in Outley’s best interest.

Outley later reiterated that self-representation was his “only option,” and that he

believed he could effectively fight for his rights pro se. Id. at 641. As relevant here,

during the hearing, the court asked, “Are you aware of the nature of the charges

against you and any statutory offenses that may be included within them?” Id. at

639. Outley responded, “Yes, ma’am.” Id. The court asked him to recite those

charges, and Outley stated: “The nature of my charges? Felony offense on

possession with intent to distribute cocaine base and being a felon in possession of a

firearm in furtherance of a drug trafficking crime, which would be the possession

with intent.” Id. at 639–40. Notably, instead of following up on Outley’s omission

of the third charge, the court continued on with other questions.

At this point, the district court permitted the government to ask Outley a few

more questions. The government asked if Outley understood that he was “charged

with three crimes and not two crimes,” emphasizing that he faced three separate

charges: “One would be possession of cocaine base with intent to distribute, another

is possession of a firearm in furtherance of a drug trafficking crime, and the third is

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being a felon in possession of a firearm.” Id. at 645. Outley responded, “I do

understand . . . but do they not all count as one count?” Id. The government replied,

“No, sir. They’re actually separate counts with separate elements that need to be

proven.” Id. Then, before the government could finish the next sentence, Outley

replied, “Okay. Yes, I do understand.” Id. The government then, with the court’s

permission, advised Outley of the penalties under Counts One, Two, and Three. At

each step, Outley replied, “I understand.” Id. at 648.

After a brief recess, the court found “that the defendant’s waiver of his

constitutional right to counsel is voluntary, it’s knowing and it’s intelligent.” Id. at

650. The court thus found that Outley “may, therefore, represent himself pro se in

this case.” Id.

c.

The question in this case is whether the totality of the circumstances shows

that Outley knowingly and intelligently waived his right to counsel. Considering the

relevant facts surrounding the Faretta hearing, we conclude that Outley knowingly

and intelligently waived his right to counsel, demonstrating a sufficient

understanding of the Von Moltke factors.2

Throughout the hearing, Outley explicitly stated, in a variety of ways, that he

understood the information being conveyed to him. In response to the court’s initial

2 We do not base our conclusion on the fact that the government moved to dismiss Count 3 because Outley was charged with all three counts at the time he deliberated to waive his right. See id. at 1269 (holding that a valid waiver must have been knowing and intelligent “at the time it was made”). 11 Appellate Case: 20-6005 Document: 010110701085 Date Filed: 06/24/2022 Page: 12

inquiries, Outley told the court that he understood the need to follow all applicable

rules of evidence and procedure and the use and purpose of standby counsel. Id. at

639 (“Okay. Yes, I do understand.”). He said he understood that the district court

was not advisory counsel. Id. (“I understand.”). And he confirmed that he would

continue pro se despite the risks, dangers, and disadvantages of proceeding pro se.

Id. at 641 (“I can [proceed] pro se if allowed the time to prepare.”). After Outley’s

initial confusion as to the third charge, the government clarified that he faced three

individually separate counts, one of which was felon in possession of a firearm, and

that each count required proof of separate elements, and Outley replied, “Okay. Yes,

I do understand.” Id. at 645. Outley said that he understood the penalties associated

with Count 1. See id. (“Yes.”); id. at 646 (“Yes, I do.”); id. (“Yes, I do.”). He said

he understood the penalties associated with Count 2. See id. (“Yes, I do..”); id. (“I

understand.”); id. (“I understand.”); id. at 647 (“Yes, I understand.”). He said that he

understood the combined effect of Count 1 and Count 2. Id. at 646–47 (“I

understand.”). He said he understood the penalties associated with Count 3. Id. at

647 (“I understand.”); id. at 648 (“I understand.”); id. (“I understand.”). And he said

that he understood the possibility of consecutive sentences for each count and the

impact of advisory guidelines. Id. at 648 (“I understand.”); id. (“I understand.”).

Outley also said he was familiar with the Federal Rules of Evidence, id. at 648, and

that he understood he was obligated to follow them along with the Federal Rules of

Criminal Procedure, id. at 648–49. Outley’s own testimony provides a strong basis

for our conclusion that Outley knowingly and intelligently waived his right to

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counsel. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in

open court carry a strong presumption of verity.”).

The fact that the court itself did not convey Outley’s third charge is not

dispositive; rather, Outley’s exchange with the government attorney was relevant and

indicative of Outley’s understanding. The primary inquiry here is still whether

Outley knowingly and intelligently waived his right to counsel, not whether the

district court performed any rote set of actions. See Von Moltke, 332 U.S. at 723–24.

The court’s duty here was to ensure that Outley understood those factors (i.e., nature

of the charges) before it made a final determination on the waiver issue. Here, the

court’s determination came after the government clarified that Outley faced three

separate counts, one of which was felon in possession of a firearm, and after Outley

replied, “Okay. Yes, I do understand.” R. Vol. I at 645. Outley’s understanding is

not thwarted by the fact that the government, with the permission of the court,

provided clarification. The court was simply not required to be the exclusive

mouthpiece of each Von Moltke factor. See Padilla, 819 F.2d at 959 (viewing the

waiver of counsel through a “pragmatic” lens). By allowing the government to

clarify a potential oversight, the court was still able to fulfill its duty to ensure Outley

understood the nature of the charges against him. Ultimately, the record reflects that

Outley was brought to an appropriate understanding of the charges, and his own

statements reflect this finding.3

3 Considering the elements of the three charges, the charges are not particularly complex; their elements can readily be determined from their respective 13 Appellate Case: 20-6005 Document: 010110701085 Date Filed: 06/24/2022 Page: 14

In addition, Outley sufficiently understood the possible defenses to the

charges, and we do not find that the particular circumstances required the court to

provide a list of specific defenses because Outley demonstrated a sufficient

awareness of the dangers and disadvantages of self-representation. See Faretta, 422

U.S. at 835; United States v. Behrens, 551 F. App’x 452, 457–58 (10th Cir. 2014)

(unpublished) (“While the district court did not suggest any defenses, its failure to

discuss that issue . . . does not warrant reversal because the . . . circumstances

indicate that [he] understood his rights and the risk he was taking.”); United States v.

Pawelski, 651 F. App’x 750, 758 (10th Cir. 2016) (unpublished) (upholding a waiver

where the district court “fail[ed] to explain potential defenses”); United States v.

Williamson, 806 F.2d 216, 220 (10th Cir. 1986) (“We similarly find no merit in [the]

contention that a valid waiver of counsel requires . . . an explanation of the possible

defenses to the charge and a discussion of pretrial motions.”); but see United States v.

Hamett, 961 F.3d 1249, 1259 (10th Cir. 2020) (reversing a waiver where the court

failed to ensure that the defendant understood the charges against him, misstated one

of the maximum penalties, and failed to discuss available defenses). The court did

warn Outley that “an attorney . . . might be aware of possible defenses to the charges

that you . . . are not.” R. Vol. I at 641–42.

descriptions. Thus, it was not necessary for the district court to delve into Outley’s understanding of the particular elements. Id. at 1251 (noting as one of the factors to be considered in the totality of the circumstance “the complex or easily grasped nature of the charge”) (quoting Tovar, 541 U.S. at 88). 14 Appellate Case: 20-6005 Document: 010110701085 Date Filed: 06/24/2022 Page: 15

But more importantly, Outley sought to dismiss his second counsel on the

second day of trial, seemingly over differences in strategy, which suggests Outley

had already settled on a strategy and did not need a specific list of defenses. See id.

at 550 (Outley suggesting that he preferred examination questions different than

those Wells had asked the witnesses); id. at 553 (“I have asked him and the private

investigator for several things as far as my discovery in preperance (sic) for my

defense, and they have failed to get anything that I have asked them to get in

preperance (sic) for my defense.”); id. at 651–52 (Outley requesting continuance,

after his waiver of counsel, because “there was [sic] a lot of questions that were not

asked on yesterday’s trial date due to a stipulation agreement between [the

government’s counsel] and Joseph Wells that I did not agree to.”); see also Hamett,

961 F.3d at 1266 (Tymkovich, C.J., dissenting) (“[T]he very fact that [he] sought in

the middle of his trial, no less to dismiss appointed counsel over differences in

strategy suggests to me that he had settled on a strategy and, therefore, a defense and

did not need to be apprised of others.”). And Outley had essentially “fired” his first

counsel because he “w[ou]nd up having differences” with him. R. Vol. I at 642.

Thus, the record demonstrates Outley sought to dismiss two attorneys, in part,

because he did not agree with their individual plans with regard to his defense. In

other words, Outley was not seemingly eager to hear a third individual (the judge)

provide him with more suggestions as to how he should defend himself, and because

of this, the court was not obligated to specify a list of defenses.

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Finally, we find that Outley’s waiver stands despite his personal background

weighing against it. The question here is whether Outley’s lack of education and

history of mental health issues render Outley’s waiver invalid under the

circumstances. In his brief, Outley points to previous mental health issues, his

education level, and his lack of criminal trial experience. However, regarding his

asserted mental deficiencies, the court ordered a pretrial competency evaluation for a

similar reason. There, a psychologist questioned Outley in depth about his

understanding of the charges, penalties, defenses, courtroom procedures, and his

ability to plan legal strategies and make relevant decisions. See Supp. R. Vol. II at

18–21. The psychologist found that Outley “exhibited an overall adequate

understanding of the criminal charges” and even “accurately stated (in his own

words) that he was charged with: ‘Federally, possession with intent to distribute,

felon in possession of a firearm, and enhanced to furtherance of a drug crime.’” Id.

at 18. These findings, while not dispositive, point to a valid waiver. Additionally,

the fact that Outley had an eleventh-grade education and limited experience in court

does not override his clearly expressed desire to represent himself.4 Outley also had

4 Outley also adequately cross-examined government witnesses on several issues pertinent to his defense, including the lack of DNA or fingerprint evidence, the lack of video recordings or photographs, functionality of the firearm, and the source of the officer’s knowledge of his gang membership. R. Vol. I at 694–95; see Hamett, 961 F.3d at 1262 n.8 (“[I]t is an open question in this circuit whether a defendant’s trial conduct is material to the inquiry into whether a district court correctly concluded that a defendant’s waiver of his right to counsel was knowing and intelligent at the time it was made.”) (quotation marks and alterations omitted). 16 Appellate Case: 20-6005 Document: 010110701085 Date Filed: 06/24/2022 Page: 17

the advantage of standby counsel to help address questions he had for his defense,

and any evidentiary rulings or continuance issues.

In conclusion, the totality of the circumstances shows that Outley knowingly

and intelligently waived his right to counsel. Throughout the hearing, Outley

continued to affirm that he understood what he was doing, that he appreciated the

risks involved with his decision, and that he still wanted to proceed pro se. Thus, we

affirm the district court’s finding that Outley effectively waived his right to counsel.

III.

Outley also argues that the district court abused its discretion by prohibiting

him from introducing evidence relating to the traffic stop on February 20, 2017. We

“review a district court’s evidentiary rulings under Rule 404(b) for abuse of

discretion.” United States v. Moran, 503 F.3d 1135, 1143 (10th Cir. 2007). Thus, we

“will not reverse a district court’s ruling if it falls within the bounds of permissible

choice in the circumstances and is not arbitrary, capricious or whimsical.” Id.

(internal quotation marks omitted). In determining whether to admit Rule 404(b)

evidence, the district court must consider four factors, whether (1) the evidence is

offered for a proper purpose; (2) the evidence is relevant; (3) the probative value of

the evidence is substantially outweighed by its prejudicial effect under Rule 403; and

(4) a proper limiting instruction can be given if requested by the defendant. See

Huddleston v. United States, 485 U.S. 681, 691 (1988).

Before trial, the district court denied the government’s motion in limine

seeking to introduce evidence of the February 20, 2017, traffic stop, based on those

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factors, particularly because the relevance and probative value of this evidence was

“substantially outweighed by its prejudicial effect.” R. Vol. I at 266–67; see also id.

at 92–95. After the court allowed Outley to proceed pro se, Outley asked the court to

reconsider allowing him to introduce the same evidence of the traffic stop.

Ultimately, the court found:

[T]he Court has ruled that any evidence about February 20th, 2017, is not admissible in this case. It is not coming in to be a part of the evidence of this case. The only new witnesses that the defendant has mentioned link to the February 20, 2017, incident. In light of the Court’s prior ruling, any testimony by these witnesses are not relevant to this case.

Id. at 663.

Outley argues that the court erroneously applied its ruling to prohibit him from

introducing the February 20 evidence because that ruling only addressed the

government’s purpose in presenting the evidence, and not his purpose, “which was to

show that the officers had a motive for planting the weapons on him.” Aplt. Br. at

36. Outley claims that his theory on the evidentiary relevance was that “the police

officers . . . expressed a belief that [he] had gotten away with a criminal offense in

February, and thus were more likely to have done whatever they could to implicate

him in a criminal offense in March.” Id. at 37.

However, the record fails to show that Outley expressed this purpose before

the court. After the government argued that this evidence was irrelevant because

“[h]e’s not charged with the February 20th incident,” Outley argued: “I’m not

charged with a lot of things that these people have presented against me . . . . So I

believe that it is relevant due to that fact.” R. Vol. I at 661–62. While Outley had

18 Appellate Case: 20-6005 Document: 010110701085 Date Filed: 06/24/2022 Page: 19

expressed a general desire to question officers about the traffic stop and to call the

fingerprint and DNA technicians that examined the weapons, Outley never provided

a purpose behind these requests. At best, Outley’s statements were too vague to put

the court on notice of his “theory of relevance,” and the court did not abuse its

discretion in failing to address it. See Drake v. City of Fort Collins, 927 F.2d 1156,

1159 (10th Cir. 1991) (“Despite the liberal construction afforded to pro se pleadings,

the court will not construct arguments or theories for [the pro se litigant].”).

Additionally, even if the court somehow inferred Outley’s purpose, the

evidentiary relevance was outweighed by its prejudice because, as the district court

found, the admission would have allowed the jury to infer that Outley possessed the

firearm and drugs based on his flight from the officers. That prejudice still existed

even if the evidence was admissible for a different purpose. Based on these

concerns, we find that the district court did not abuse its discretion in prohibiting

Outley from introducing evidence of the February 20 traffic stop.

IV.

For these reasons, we AFFIRM the judgment of the district court.

Entered for the Court

Allison H. Eid Circuit Judge