Robert Mems v. City of St. Paul

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3225
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Derrick B. Smith, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 15, 2003
Filed: April 21, 2003
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Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
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PER CURIAM.
After Derrick B. Smith provided cocaine to Sarah Flatley and Elizabeth
Callison at his mother’s apartment, Callison had a seizure. Flatley and Smith took
Callison to a hospital emergency room, where she died from a cocaine overdose.
Smith initially told police the girls had brought the cocaine with them, but eventually
admitted it was his. Smith consented to a search of his car, and officers found 144
grams of cocaine. The Government charged Smith with distribution of cocaine
resulting in death and possession with intent to distribute cocaine. 21 U.S.C. §§

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*
The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
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841(a)(1), (b)(1)(C). The district court * appointed the Federal Public Defender’s
Office (FPD) to represent Smith. After obtaining continuances, retained counsel
entered an appearance and the FPD was allowed to withdraw. Retained counsel later
filed a motion to withdraw stating Smith refused to cooperate or assist in his defense.
The district court granted the motion and reappointed the FPD to represent Smith.
Three weeks later, Smith filed a pro se motion to withdraw the FPD. During a
hearing on the motion, the FPD told the court Smith wouldn’t communicate or
cooperate with him. Noting both retained and appointed attorneys had had
cooperation and communication problems with Smith, and Smith had asked both to
file motions the attorneys deemed inappropriate, the magistrate judge denied Smith’s
pro se motion. On the day of trial, Smith requested a sixth continuance so that newly
retained counsel could enter his appearance. The district court, well aware of Smith’s
difficulties with his attorneys, held a hearing then denied Smith’s motion, stating
Smith sought to delay the case as long as possible. A jury convicted Smith, and the
court sentenced him to 340 months in prison. Smith appeals raising several issues.
We reject them all.
First, the magistrate judge, who was familiar with the status of Smith’s
attorney-client relationships, adequately inquired into Smith’s pro se request for
replacement of appointed counsel before denying the request. Second, the district
court did not abuse its broad discretion or violate Smith’s Sixth Amendment right in
denying Smith’s request for substitute counsel on the morning of trial. United States
v. Vallery, 108 F.3d 155, 157 (8 th Cir. 1997). Third, the district court did not abuse
its discretion in refusing to give a lesser included offense instruction for simple
possession on either count of the indictment. See United States v. Thompson, 492
F.2d 359, 362 (8 th Cir. 1974). Fourth, the verdict director on count one correctly
stated the Government need not prove that the transfer of cocaine was in exchange

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for money or that it was foreseeable to Smith that the cocaine would or could cause
the death of Callison. United States v. McIntosh, 236 F.3d 968, 972-73 (8 th Cir.
2001) (defendant need not foresee drug recipient’s death for purposes of enhanced
penalty under 21 U.S.C. § 841). The director did not invade the province of the jury.
Fifth, the district court did not commit plain error in permitting the prosecutor to
argue during closing that Smith, rather than Callison or Flatley, was the liar in the
case. The comment was based on the evidence, which showed Smith had falsely
denied to police that he had supplied Callison with cocaine, and the prosecutor was
merely responding to Smith’s attempt to shift blame to Callison and Flatley. See
United States v. White, 241 F.3d 1015, 1023 (8 th Cir. 2001); United States v. Nichols,
21 F.3d 1016, 1019 (10 th Cir. 1994). Sixth, the district court did not commit clear
error in denying Smith a two-level reduction in his offense level for acceptance of
responsibility because he has consistently refused to accept any responsibility for the
acts that resulted in Callison’s death. U.S. Sentencing Guidelines Manual § 3E1.1
n.2; United States v. Gonzalez Rodriguez, 239 F.3d 948, 954 (8 th Cir. 2001). This is
not one of the rare cases in which a defendant can insist on trial, deny the essential
factual elements of the charges, and still obtain the reduction. Id.
We thus affirm Smith’s conviction and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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