United States of America v. Vincent Webber

16 United States v. Webber No. 98-1708
Conclusion
For the reasons stated above, the Court concludes that
Defendant’s right to testify on his own behalf was not
unconstitutionally denied and there was sufficient evidence
for the jury to convict Defendant on count four of the
indictment. Therefore, Defendant’s sentence and convictions
are AFFIRMED.
*The Honorable Donald C. Nugent, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0114P (6th Cir.)
File Name: 00a0114p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
VINCENT W EBBER,
Defendant-Appellant.
;>

1
No. 98-1708
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 95-80116—Gerald E. Rosen, District Judge.
Argued: December 16, 1999
Decided and Filed: March 31, 2000
Before: RYAN and NORRIS, Circuit Judges; NUGENT,*
District Judge.
_________________
COUNSEL
ARGUED: Otis H. Stephens, UNIVERSITY OF
TENNESSEE, Knoxville, Tennessee, for Appellant. Michael
R. Mueller, ASSISTANT UNITED STATES ATTORNEY,

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2 United States v. Webber No. 98-1708
Detroit, Michigan, for Appellee. ON BRIEF: Gerald L.
Gulley, Jr., BAKER, McREYNOLDS, BYRNE, O’KANE &
SHEA, Knoxville, Tennessee, for Appellant. Michael R.
Mueller, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
NUGENT, District Judge. Defendant Vincent Webber
appeals his convictions and sentence on count one for
conspiracy to possess with intent to distribute cocaine base in
violation of 21 U.S.C. § 846, counts two and three for
distribution of cocaine base in violation of 21 U.S.C.
§ 841(a)(1), and count four for aiding and abetting
distribution of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Defendant claims his right to
testify on his own behalf was unconstitutionally denied.
Defendant also alleges that there was insufficient evidence for
the jury to convict him on count four of the indictment. For
the reasons that follow, we AFFIRM the convictions and
sentence.
Factual and Procedural Background
On November 22, 1994, Defendant Vincent Webber met
with Drug Enforcement Administration undercover agent
Robert Strickland and a cooperating informant at Starters
Lounge in Detroit, Michigan. Agent Strickland and the
cooperating informant were there to purchase one ounce of
crack cocaine (cocaine base) from Defendant. This
transaction had been arranged through several telephone
conversations between the cooperating informant and
Defendant. After meeting Agent Strickland and the
cooperating informant, Defendant paged his source, Tujuan
Johnson. Shortly thereafter, Mr. Johnson entered the lounge
and proceeded to the restroom, followed by Defendant and
Agent Strickland. Agent Strickland purchased 20 grams
(about two-thirds of an ounce) of crack cocaine from Mr.
No. 98-1708 United States v. Webber 15
pager number to Agent Strickland. Agent Strickland then
called the pager number and set up the December 13, 1994,
transaction for two ounces of crack cocaine. After arranging
the transaction with Mr. Johnson, Agent Strickland paid
Defendant the agreed-upon $100 dollars for the pager number
and code. Without Defendant’s participation, Mr. Johnson
and Agent Strickland could not have completed the December
13, 1994, transaction for two ounces of crack cocaine, much
less the first two one-ounce transactions. This is more than
sufficient evidence for a trier of fact to determine that
Defendant knew Mr. Johnson possessed the crack cocaine
with the intent to sell it, and that Defendant offered assistance
and encouragement to Mr. Johnson in the commission of the
two-ounce sale.
Third, in regard to Defendant’s argument that he never
actually possessed the crack cocaine and thus should not have
been found guilty of aiding and abetting, it is well-settled that
it is not necessary for the government to prove that the
defendant actually or even constructively possessed the drugs
in order to obtain a conviction for aiding and abetting.
Ledezma, 26 F.3d at 641 (citing United States v. Winston, 687
F.2d 832, 834 n.2, 835 (6th Cir. 1982)).
Reviewing the evidence in the light most favorable to the
prosecution, there is ample evidence for us to determine that
a rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable
doubt. The evidence is clear Defendant knew that Mr.
Johnson, the principal, possessed crack cocaine with the
intent to distribute it, and that Defendant assisted in Mr.
Johnson’s plan to deliver the crack cocaine. See Ledezma, 26
F.3d at 641. Because Defendant associated himself with the
venture, participated in it, and sought by his actions to make
it succeed, United States v. Peoni, 100 F.2d 401, 402 (2d Cir.
1938) (L. Hand, J.), quoted with approval in Ledezma, 26
F.3d at 641, Defendant’s argument that the evidence was
insufficient to sustain his conviction on count four of the
indictment for aiding and abetting fails.

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14 United States v. Webber No. 98-1708
Defendant asserts that he did not aid and abet the
distribution of crack cocaine because he (1) “was never able
to provide [Agent Strickland] with instant access to any
quantity of cocaine base”; (2) “always required lead time in
order to contact Johnson”; (3) “was never able to locate more
than an ounce of cocaine for Strickland”; and, (4) “never had
anything to do with the actual possession of the ‘crack’
cocaine.” (Def.’s Br. at 27-28.) Defendant’s arguments miss
the mark.
First, in regard to Defendant’s first two arguments, there is
no immediacy requirement to aiding and abetting. The only
strict time requirement applicable to aiding and abetting is
that “one cannot aid and abet a completed crime.” Ledezma,
26 F.3d at 642. A prolonged period of time between a
defendant’s actions and the commission of the offense may
dissipate the strength of the government’s argument that a
defendant’s activity could be characterized as intending to
help or encourage the commission of a crime, see, e.g., United
States v. Hill, 55 F.3d 1197, 1204 (6th Cir. 1995), but that is
not the case here. In the matter at hand, the period of time
between Defendant’s activities and the commission of the
crime was rather brief and not so attenuated as to cast doubt
on the trier of fact’s determination that Defendant knew that
Mr. Johnson possessed crack cocaine with the intent to
distribute it and assisted in Mr. Johnson’s plan to deliver the
crack cocaine.
Second, the fact that Defendant never located more than an
ounce of cocaine for Agent Strickland and thereby cannot be
linked to aiding and abetting a two ounce sale is not
convincing. Defendant set up the first two transactions and
met with Agent Strickland at both. After the first transaction,
Defendant and Agent Strickland discussed what the future per
ounce cost of crack cocaine would be and the fact that
Defendant had dealt with Mr. Johnson a number of times.
Defendant wanted to engage in a third transaction on the night
of December 8, 1994, but Agent Strickland was unable to
meet. After the first two transactions, for which Defendant
received a transaction fee, Defendant sold Mr. Johnson’s
No. 98-1708 United States v. Webber 3
Johnson for $1,100 dollars. Mr. Johnson paid Defendant $50
dollars as a “transaction” or referral fee. Agent Strickland
and Defendant agreed to talk later in order to set up another
transaction.
On December 5, 1994, Agent Strickland called Defendant
in order to purchase another ounce of crack cocaine.
Defendant told him that the price would be $1,100 dollars and
said that he wanted to make more than $50 dollars for this
transaction. Agent Strickland agreed to pay him an additional
$50 dollars, over and above the $50 dollars that he would
receive from Mr. Johnson. Defendant, Agent Strickland, and
Mr. Johnson met later that day at the back of Starters Lounge,
where Agent Strickland purchased 21.4 grams of crack
cocaine from Mr. Johnson for $1,100 dollars. Mr. Johnson
paid Defendant his $50 dollar transaction fee. Agent
Strickland then spoke to Mr. Johnson about purchasing larger
quantities of crack cocaine from him directly. Mr. Johnson
told Agent Strickland to get his pager number from Defendant
and use Defendant’s code. Before leaving the bar, Agent
Strickland paid Defendant the extra $50 dollars as promised.
In sum, Defendant made $100 dollars for his part in the
transaction.
On December 8, 1994, Agent Strickland spoke to
Defendant and his sister, Mary Ann Webber, several times in
order to get Mr. Johnson’s pager number from Defendant.
Agent Strickland visited Defendant on December 12, 1994,
while Defendant was hospitalized at a Trenton, Michigan,
hospital, in a further attempt to get the pager number and
code. Defendant provided Agent Strickland with Mr.
Johnson’s pager number in exchange for $100 dollars. Agent
Strickland then called Mr. Johnson from the hospital,
arranging to purchase two ounces of crack cocaine the next
day. After completing the call, Agent Strickland paid
Defendant the agreed-upon $100 dollars for the pager number
and code. On December 13, 1994, Agent Strickland met Mr.
Johnson at Starters Lounge and purchased 41.6 grams of
crack cocaine for $1,940 dollars.

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4 United States v. Webber No. 98-1708
1Subsequent to the trial, Mr. Johnson pled guilty and the indictment
against Ms. Webber was dismissed.
A federal grand jury returned a four-count indictment
against Defendant, Mary Ann Webber, and Tujuan Johnson
on December 19, 1995. Count one charged all three with
conspiracy to possess with intent to distribute cocaine base
from November 21, 1994, to December 13, 1994, in violation
of 21 U.S.C. § 846. Count two charged Defendant and Mr.
Johnson with distribution of cocaine base on November 22,
1994, in violation of 21 U.S.C. § 841(a)(1). Count three
charged Defendant and Mr. Johnson with distribution of
cocaine base on December 5, 1994, in violation of 21 U.S.C.
§ 841(a)(1). Count four charged Defendant and Mr. Johnson
with the distribution, and aiding and abetting the distribution,
of cocaine base on December 13, 1994, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Defendant was arrested on February 14, 1995. He pled not
guilty. Prior to trial, the trial court granted Defendant’s
Motion to Sever his trial from that of the other defendants.1
Defendant’s jury trial began on November 14, 1997. Prior to
the conclusion of the government’s case, in a discussion
regarding jury instructions that took place after the jury had
been excused for lunch, Defendant’s counsel, Mr. Curtis
Williams, stated that the defense wanted an instruction on
entrapment. Defendant’s counsel also indicated that
Defendant was going to testify. The following colloquy took
place in open court and on the record:
THE COURT: . . . [T]here’s an instruction on
entrapment. I haven’t heard the defense raise the issue of
entrapment.
MR. WILLIAMS: We will, your Honor.
THE COURT: You’re going to raise entrapment?
MR. WILLIAMS: Yes.
THE COURT: Okay. Well then, we’ll leave that in.
And you indicated the defendant is still intending to
testify?
No. 98-1708 United States v. Webber 13
III. The Sufficiency of the Evidence
Defendant contends that the government did not present
sufficient evidence to sustain his conviction on count four of
the indictment for distribution of crack cocaine, or aiding and
abetting the distribution of crack cocaine, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We review a challenge
to the sufficiency of the evidence by considering the evidence
in the light most favorable to the prosecution to determine
whether a rational trier of fact could have found that the
essential elements of the crime were proven beyond a
reasonable doubt. United States v. Spearman, 186 F.3d 743,
746 (6th Cir. 1999) (citing United States v. Jones, 102 F.3d
804, 807-08 (6th Cir. 1996)). “A defendant making such a
challenge bears a very heavy burden.” Spearman, 186 F.3d at
746 (citation omitted).
21 U.S.C. § 841(a)(1) makes it unlawful for “any person
knowingly or intentionally to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” 18 U.S.C. § 2(a) states:
“Whoever commits an offense against the United States or
aids, abets, counsels, commends, induces, or procures its
commission, is punishable as a principal.”
Defendant argues that the “proof was insufficient for a
rational trier of fact to find beyond a reasonable doubt that
Vincent Webber aided and abetted, or otherwise distributed,
‘crack’ cocaine as alleged in Count Four of the Indictment.”
(Def.’s Br. at 26.) Defendant attempts to distinguish his case
from United States v. Ledezma, 26 F.3d 636 (6th Cir. 1994),
where this Court held that in order to prove aiding and
abetting, the government must show that the defendant knew
the principal possessed a controlled substance with the intent
to distribute it, and that the defendant assisted in the
principal’s plan to deliver the controlled substance. Id. at 641
(citation omitted). “[T]he essence of the crime of aiding and
abetting is the defendant’s offering assistance or
encouragement to his principal in the commission of a
substantive offense.” Id. at 642 (citations omitted).

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12 United States v. Webber No. 98-1708
4In order for a trial court to enhance a defendant’s sentence pursuant
to USSG § 3C1.1 for obstructing justice because of perjury, “the district
court must fulfill two requirements; first, it must identify those particular
portions of the defendant’s testimony that it considers to be perjurious,
and second, it must either make specific findings for each element of
perjury or at least make a finding that encompasses all of the factual
predicates for a finding of perjury.” United States v. Sassanelli, 118 F.3d
495, 501 (6th Cir. 1997) (inner quotes and citations omitted).
justice if he testified at trial and was found guilty by the
jury[.]” (Def.’s Br. at 18.) Defendant concludes that the
timing of the trial court’s colloquy and the Defendant’s
decision soon thereafter not to testify creates a “presumption”
that the trial court “encouraged the Defendant to forego his
fundamental and personal right to testify on his own behalf,
thereby impermissibly chilling the Defendant’s exercise of his
constitutional rights.” (Def.’s Br. at 24.)
While we are mindful that excessive judicial interference
with a Defendant’s strategic decision regarding the right to
testify constitutes a “danger [that] is of great significance
because the right not to testify counterpoises the right to
testify, and the exercise of one is the waiver of the other”,
Joelson, 7 F.3d at 178, the trial court’s instruction here was
neither excessive nor so egregious that Defendant’s ability to
knowingly and intentionally waive his right to testify was
impaired. Id. Rather than a “veiled threat,” the trial court’s
instruction was a non-coercive explanation of the law.4 The
court emphasized that it was not trying “in any way” to “chill”
or “inhibit” Defendant’s decision whether to testify, but rather
“inform him”of the requirements of the sentencing guidelines.
In addition, Defendant had ample opportunity to confer with
his attorney after the trial court’s statements--in fact, the
luncheon recess occurred right after the discussion took place-
-and Defendant did not make any objection that he wanted to
testify. There is not a scintilla of evidence of judicial
intimidation, threat, or overbearance in the record.
Defendant’s claim is totally without merit and is denied.
No. 98-1708 United States v. Webber 5
MR. WILLIAMS: Yes, he is, your Honor.
THE COURT: Okay. Have you apprised the defendant
– I ask this not to try to chill his or in any way inhibit him
from testifying, if he wants to, but have you informed
him that if he testifies and if he’s convicted and the
government moves for an enhancement based on perjury,
that I’ll have to make a decision about that and that
would have the effect of enhancing his sentence?
MR. WILLIAMS: We have not talked specifically
about that. We will.
THE COURT: You should tell him about the
ramifications about that. I wouldn’t want him to be
surprised –
I can tell you. Mr. Weber [sic], let me just tell you.
Under fairly recent Supreme Court law and under the
guidelines, if a defendant takes the stand and testifies and
is subsequently convicted, and if the government moves
for an enhancement, meaning an increase in the sentence
based on perjury by the defendant during his testimony at
trial, I have to make a judgment as to whether or not the
defendant’s testimony was in fact perjurious and if it
was, then I have to enhance. I don’t tell you this to try to
inhibit you from testifying. If you want to testify,
obviously that’s your prerogative. I tell you this only so
that you understand that if you testify, and you’re
subsequently convicted and if the government moves for
an enhancement based on perjury, then I’ll have to make
a judgment about that, and then if I find you perjured
yourself, then your sentence would be enhanced. Do you
understand that?
THE DEFENDANT: Yes, I do, your honor.
THE COURT: All right.
At the close of the government’s case, Defendant’s counsel,
at a sidebar discussion, moved to dismiss count four of the
indictment pursuant to Federal Rule of Civil Procedure 29,
alleging there was insufficient proof to sustain a guilty verdict
regarding the December 13, 1994, purchase of crack cocaine.
The trial court denied the motion. The following dialogue
took place at that sidebar and on the record:

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6 United States v. Webber No. 98-1708
MR. WILLIAMS: Your Honor, first thing I wanted to
mention was that we’ve changed our approach. We no
longer want the entrapment instruction given. Also
[Defendant] is not going to testify.
. . . .
THE COURT: . . . All right. He’s not going to testify?
MR. WILLIAMS: No, he’s not going to testify.
. . . .
THE COURT: . . . What do you want to do? It’s only
2:30.
MR. WILLIAMS: We’re going to rest.
THE COURT: Do you want to go right into closing?
MR. WILLIAMS: Can you give us about fifteen
minutes to get organized a little bit? I didn’t expect to
get there this fast.
THE COURT: You may want to have Mr. Weber [sic]
put on the record that he’s decided not to testify, after we
send the jury out.
MR. WILLIAMS: Okay. Very well.
THE COURT: You may want to do that. It would
probably be a good idea.
MR. WILLIAMS: I think so.
(Sidebar concluded.)
Immediately after the sidebar concluded, the following took
place in open court, on the record, and in the presence of
Defendant.
THE COURT: All right, the government rests, Mr.
Williams.
MR. WILLIAMS: The defense rests, your Honor.
. . . .
(Jury exited at 2:32 p.m.)
THE COURT: Okay, about 15, 20 minutes?
Okay, in that case since Mr. Weber [sic] is not
testifying, I’m going to take out the instructions on the
defendant’s testimony as well as the impeachment of
defendant by prior convictions. And I should probably
take out, as well, the entrapment instruction.
MR. WILLIAMS: Yes, your honor.
No. 98-1708 United States v. Webber 11
If this Court is determined to adhere to the majority rule
that a trial court is not required to put defendant’s choice to
testify on the record, Defendant argues, then it should apply
the Third Circuit’s exception to the rule: “[I]n exceptional,
narrowly defined circumstances, judicial interjection through
a direct colloquy with the defendant may be required to
ensure that the defendant’s right to testify is protected.”
Pennycooke, 65 F.3d at 12. The Pennycooke court’s
illustration of an “exceptional circumstance” was a defendant
who repeatedly interrupted the trial to express his desire to
testify and interjected that his attorney was lying when his
attorney told the court that the attorney and the defendant had
made a joint decision that the defendant would not testify. Id.
at 12 (citing Ortega v. O’Leary, 843 F.2d 258 (7th Cir.
1988)). This is not such a case.
In the case at hand, there is no evidence that Defendant
either made an open expression of his desire to testify or had
any desire whatsoever to take the witness stand in his trial, let
alone any evidence that Defendant’s counsel or the trial court
ignored Defendant’s desire to exercise his right to testify. In
fact, Defendant concedes in his Brief to this Court that
“before the [court’s] admonition Mr. Webber planned to
testify; shortly after the admonition Mr. Webber changed his
mind and decided not to testify.” (Def.’s Br. at 24.) There is
no evidence in the record that Defendant attempted to
communicate with and “alert the trial court” to a disagreement
with defense counsel regarding whether Defendant should
take the stand. The trial court had no duty, under the facts
presented here, to inquire sua sponte whether Defendant was
knowingly, voluntarily, and intelligently waiving his right to
testify. In sum, Defendant’s claim fails.
Next, Defendant argues that the colloquy between the trial
court and Defendant regarding the potential for a sentencing
enhancement amounted to an unconstitutional “chilling” of
his right to testify. Defendant contends that the trial court
improperly interjected itself into the defense team’s strategic
and tactical decisions and gave him “what was essentially a
veiled threat to find [him] guilty of perjury and obstruction of

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10 United States v. Webber No. 98-1708
3We recognize that our unpublished opinions carry no precedential
weight; they often do, however, carry persuasive weight. See Sheets v.
Moore, 97 F.3d 164, 167 (6th Cir. 1996) (noting that unpublished
opinions carry no precedential weight and have no binding effect on
anyone other than the parties to the action); 6 C IR . R. 206(c) (stating that
only published opinions are binding on subsequent panels).
A defendant who wants to testify can reject defense
counsel’s advice to the contrary by insisting on testifying,
communicating with the trial court, or discharging counsel.
Joelson, 7 F.3d at 177. At base, a defendant must “alert the
trial court” that he desires to testify or that there is a
disagreement with defense counsel regarding whether he
should take the stand. Pelzer, 1997 WL 12125 at *2. When
a defendant does not alert the trial court of a disagreement,
waiver of the right to testify may be inferred from the
defendant’s conduct. Waiver is presumed from the
defendant’s failure to testify or notify the trial court of the
desire to do so. Joelson, 7 F.3d at 177.
In the matter at hand, Defendant urges this Court to reject
the reasoning in our earlier unpublished opinions and the
opinions of the majority of other circuit courts as “fatally
flawed” and hold that waiver of the right to testify--like some
other fundamental rights--must be made on the record by the
trial court. We decline to do so.3 While we recognize that
trial courts are required to inquire directly of the defendant in
regard to whether the defendant is knowingly and
intentionally entering a plea of guilty, waiving a jury trial, or
foregoing the assistance of counsel, see Ortiz, 82 F.3d at
1070-71 (citing Supreme Court cases), we are convinced that
the right to testify “qualitatively differs” from those rights in
that a sua sponte inquiry from the trial judge regarding the
defendant’s choice to testify might impede on an appropriate
defense strategy, might lead the defendant to believe that
defense counsel has been insufficient, or might
inappropriately influence the defendant to waive the Fifth
Amendment right not to testify. See United States v.
Pennycooke, 65 F.3d 9, 11 (3d Cir. 1995).
No. 98-1708 United States v. Webber 7
THE COURT: Have you had a chance to review the
instructions, Mr. Williams?
MR. WILLIAMS: Yes, I’ve had an opportunity to
review the instructions and I have discussed them with
Mr. Weber [sic], your Honor.
THE COURT: Are they satisfactory now with these
changes that we discussed before lunch break and now
with the changes that I’m making now, to take out the
entrapment instruction, the instruction on the defendant’s
testimony and the impeachment by defendant by prior
convictions.
MR. WILLIAMS: Yes, your Honor.
THE COURT: Okay. Very good.
Defendant was not asked personally by the trial court
whether he wanted to testify or whether he was aware that his
attorney, at the sidebar, had waived Defendant’s right to
testify after previously informing the court that Defendant
intended to testify. Although the court and defense counsel
discussed in open court Defendant’s decision not to testify
and changes in the jury instructions, Defendant was never
asked to personally comment on this change in trial strategy
or put his decision not to testify on the record. Defendant was
present in court and heard his attorney agree with the trial
judge’s comments relating to the Defendant not testifying and
the Defendant not proceeding with an entrapment defense.
Defendant never objected to this defense tactic or attempted
to alert the court that he desired to testify.
The jury returned a verdict of guilty on all four counts on
November 18, 1997. Defendant was sentenced on May 22,
1998, and ordered to serve 210 months incarceration
concurrently on each count. Judgment was imposed on May
22, 1998, but not entered until June 16, 1998. Defendant filed
his timely appeal on June 1, 1998.

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8 United States v. Webber No. 98-1708
Discussion
I. Jurisdiction
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1291 and Federal Rules of Appellate Procedure 3
and 4(b).
II. The Right to Testify
Defendant argues that his rights under the Fifth and Sixth
Amendments to the Constitution were violated when (1) his
right to testify on his own behalf was waived by his attorney
and, (2) the trial court impermissibly “chilled” his right to
testify. We review de novo whether Defendant’s
constitutional rights were violated at the trial stage of his
proceedings.
The right of a defendant to testify at trial is a constitutional
right of fundamental dimension and is subject only to a
knowing and voluntary waiver by the defendant. See Rock v.
Arkansas, 483 U.S. 44, 52, 53 n.10 (1987); Pelzer v. United
States, 105 F.3d 659 (table), 1997 WL 12125, at *2 (6th Cir.
Jan. 13, 1997); United States v. Joelson, 7 F.3d 174, 177 (9th
Cir. 1993). “The right to testify on one’s own behalf at a
criminal trial has sources in several provisions of the
Constitution.” Rock, 483 U.S. at 51. It is a right that is
“‘essential to due process of law in a fair adversary process’”
and thus falls under the protections of the Fifth and
Fourteenth Amendments. Id. (quoting Faretta v. California,
422 U.S. 806, 819 n.15 (1975)). The right to testify is also
found in the Compulsory Process Clause of the Sixth
Amendment, which grants a defendant the right to call
“witnesses in his favor”--which, of course, would include
himself. Id. at 52 (citation omitted). In addition, the right to
testify is “a necessary corollary to the Fifth Amendment’s
guarantee against compelled testimony.” Id.
The right to testify is personal to the defendant, may be
relinquished only by the defendant, and the defendant’s
relinquishment of the right must be knowing and intentional.
No. 98-1708 United States v. Webber 9
2See, e.g., ABA M ODEL R ULES OF P ROFESSIONAL CONDUCT RULE
1.2(a) & cmt. (1995) (“In a criminal case, the lawyer shall abide by the
client’s decision . . . whether the client will testify.”); ABA S TANDARDS
FOR CRIMINAL J USTICE 4-5.2(a)(iv) (3d ed. 1993) (“whether to testify in
his or her own behalf” is a decision “to be made by the accused after full
consultation with counsel”).
Joelson, 7 F.3d at 177. The defense counsel’s role is to
advise the defendant whether or not the defendant should take
the stand, but it is for the defendant, ultimately, to decide.
See Pelzer, 1997 WL 12125 at *2 (citation omitted).
Although the ultimate decision whether to testify rests with
the defendant, when a tactical decision is made not to have
the defendant testify, the defendant’s assent is presumed.
Joelson, 7 F.3d at 177. This is so because the defendant’s
attorney is presumed to follow the professional rules of
conduct2 and is “strongly presumed to have rendered adequate
assistance” in carrying out the general duty “to advocate the
defendant’s cause and the more particular duties to consult
with the defendant on important decisions and to keep the
defendant informed of important developments in the course
of the prosecution.” Strickland v. Washington, 466 U.S. 668,
688-90 (1984). Barring any statements or actions from the
defendant indicating disagreement with counsel or the desire
to testify, the trial court is neither required to sua sponte
address a silent defendant and inquire whether the defendant
knowingly and intentionally waived the right to testify, nor
ensure that the defendant has waived the right on the record.
Joelson, 7 F.3d at 177. See also United States v. Ortiz, 82
F.3d 1066, 1069 n.8 (D.C. Cir. 1996) (noting the agreement
of the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh
Circuits that the trial court does not have a duty to sua sponte
conduct an on-the-record colloquy regarding waiver); Knox v.
Morris, 908 F.2d 973 (table), 1990 WL 106789, at *1 (6th
Cir. July 30, 1990) (holding that trial court has no duty to
establish waiver on record); United States v. Yarbrough, 896
F.2d 554 (table), 1990 WL 17263, at *2 (6th Cir. Feb. 27,
1990) (same).

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