United States v. Atkins, 21-3166

52 F.4th 745

UNITED STATES of America, Plaintiff - Appellee

v.Anthony ATKINS, also known as Forever, Defendant - Appellant

No. 21-3166

United States Court of Appeals, Eighth Circuit.

Submitted: September 23, 2022

Filed: November 2, 2022

Counsel who represented the appellant was Sylvia Talley, AFPD, of Little Rock, AR.

Counsel who represented the appellee was Kristin Huntington Bryant, AUSA, of Little Rock, AR.

Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges.

GRUENDER, Circuit Judge.

A jury found Anthony Atkins guilty of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a). Atkins raises several issues on appeal. First, he argues that the district court violated his Sixth Amendment right to self-representation by denying his requests to proceed pro se . Second, he contends that the evidence at trial was insufficient to sustain his conviction. Third, he argues that the district court admitted unfairly prejudicial evidence. Finally, he submits that two of the special conditions of supervised release imposed by the district court are impermissibly vague and overbroad. We affirm the conviction but remand for clarification of the two special conditions.

I.

In April 2018, L.D.’s parents reported to the police that their seventeen-year-old daughter had run away from home. In June 2018, in an effort to locate L.D., Detective Raymond Koonce, an undercover police officer, responded to an online advertisement titled "Exotic white girl, text me, (501) 902-4029." The advertisement was published on CityXGuide.com, a website which has since been shut down by the federal government. Detective Koonce exchanged text messages with the listed phone number and arranged to pay $180 for a thirty-minute date with the advertised female. When Detective Koonce arrived at an agreed-upon location, a girl, later identified as L.D., entered his car. L.D. indicated that she would engage in sex acts with Detective Koonce and discussed prices. The two then drove to a nearby gas station to purchase a condom, where L.D. was promptly arrested. After L.D.’s arrest, Detective Koonce continued to receive phone calls and text messages from the listed phone number, including one that asked "is my daughter [with] you." Investigators eventually determined that the phone number was associated with Anthony Atkins. In September 2018, Atkins was indicted for sex trafficking of a minor in violation of 18 U.S.C. § 1591(a). He pleaded not guilty.

At a pretrial hearing, Atkins requested to represent himself. Atkins repeatedly insisted that he "waived [his] appearance" and told the court, "As pro pro se [sic] I do not go to trial at all as a sovereign citizen." When the district court asked Atkins whether he understood that he was charged with a crime and facing trial, he answered, "I know with them giving me a charge and me being a citizen of the state, the charge I can charge it to my account" and stated that "[t]he trial is not going to happen." The district court then engaged in a colloquy under Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to evaluate whether Atkins's request was made "knowingly, voluntarily, and intelligently." During a lengthy exchange in which he repeatedly spoke out of turn and had to be told to sit down, Atkins indicated that he was not familiar with the Federal Rules of Evidence or with other important aspects of criminal proceedings. The district court nonetheless allowed Atkins to proceed pro se with standby counsel available. Later in the hearing, however, the district court began to doubt that Atkins's request was sufficiently unequivocal, and the court eventually concluded that Atkins was "simply trying to obstruct the proceedings" and thus "waiving his right to represent himself."

At a subsequent pretrial conference, Atkins made a series of outbursts in which he accused the court of "not functioning within an appointed manner of righteousness" and declared that he "hold[s] grand sheikh status" and did not "have to discuss a charge." He stated that his attorneys "won't be representing me as counsel" and continued to insist that he was "pro pro se."

Later, the district court held another pretrial conference and again considered Atkins's request to represent himself. After multiple attempts to complete a Faretta colloquy, the court explained that it would "give [Atkins] one more chance to make an unequivocal request" but that "[i]f [Atkins] sa[id] something other than yes," the court would deny his request. When asked for his final answer, Atkins told the court, "Yes, I'm pro par se [sic]. I will not be going to trial as a grand sheikh." As before, the district court determined that Atkins's request was "essentially an attempt to obstruct the proceedings," which "in and of itself [was] a reason to deny [it]." The case proceeded to trial with Atkins represented by counsel.

At trial, Atkins was repeatedly disruptive, especially during the testimony of L.D. He interrupted her more than ten times, including by "objecting" to her testimony, accusing her of lying, and announcing his "jurisdiction as Allah, grand sheikh." More than once, the court had to ask the jury to exit the courtroom so that Atkins could be admonished.

L.D. testified that Atkins first reached out to her in April 2018 through Instagram when he requested her phone number and asked, "how often do you travel sexiface?" Shortly after the two began text messaging one another, L.D. told Atkins that she was seventeen years old and sent him a photograph of her birth certificate so that he could verify her age. Atkins and L.D. also had in-person conversations about her age. At one point, he told her that her age was "a liability" to him that could "get him in trouble." On another occasion, he instructed her not to wear clothing that indicated the name of her school "because he didn't want anybody knowing that [she] was in high school." By early June 2018, L.D. had moved in with Atkins. Atkins allowed her to live with him on the condition that she "work for him" by selling herself for sex through online advertisements that he published.

Over Atkins's objection, the district court allowed the Government to introduce into evidence two short videos recovered from Atkins's cellphone. Both videos were recorded by Atkins in the three months preceding L.D.’s arrest. The first depicted Atkins speaking to the camera about "n-----s’ ho's stables" and remarking that he would "knock that b---h out of [her] New Balances and put her into these fresh, Giuseppe red-bottom heels."¹ The second depicted Atkins flashing and counting cash while speaking to the camera and stating, among other things, that he is creating "generational wealth," that it is "all up to [the viewer]" if they want to "get this [cash] together," and that "any b---h with me [is] goin’ to the top." The district court also admitted, over Atkins's objection, a compilation of cellphone screenshots indicating that Atkins had shared the second video through Instagram. The district court admitted each of these three exhibits under Federal Rule of Evidence 404(b) as evidence of Atkins's motive, intent, or plan to engage in sex trafficking.

The jury found Atkins guilty of sex trafficking of a minor. The district court sentenced Atkins to the statutory minimum of 120 months’ imprisonment with an additional 15 years’ supervised release. The court imposed multiple special conditions of supervised release, including one that prohibited Atkins from "view[ing] or possess[ing] any visual depiction ... of sexually explicit content ... or any other material that would compromise [his] sex specific treatment." Another special condition prohibited Atkins from "enter[ing] adult bookstores, strip clubs, or adult-themed entertainment businesses or any establishments where such materials or entertainment is available." Atkins appealed.

II.

We begin with Atkins's argument that the district court impermissibly denied his request to represent himself at trial. We review de novo a district court's denial of a criminal defendant's request to proceed pro se . United States v. Smith , 830 F.3d 803, 809 (8th Cir. 2016).

The Sixth Amendment grants a criminal defendant the right to represent himself at trial without the assistance of counsel. Faretta , 422 U.S. at 819, 95 S.Ct. 2525. To invoke the right to self-representation, a defendant must "clearly and unequivocally declare[ ]" to the trial court that he wishes to proceed pro se . Smith , 830 F.3d at 808. This right, however, "is not absolute," United States v. Kelley , 787 F.3d 915, 917 (8th Cir. 2015), and can be outweighed by "the government's interest in ensuring the integrity and efficiency of the trial," Martinez v. Ct. of Appeal of Cal ., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). Thus, even if a defendant clearly and unequivocally requests self-representation, a court may deny the request when the defendant "engages in serious and obstructionist misconduct," see Kelley , 787 F.3d at 917 (internal quotation marks omitted), or seeks to use the right "as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process," United States v. Mosley , 607 F.3d 555, 558 (8th Cir. 2010) (internal quotation marks omitted). "[S]elf-representation is not a license to abuse the dignity of the courtroom." Faretta , 422 U.S. at 834 n.46, 95 S.Ct. 2525 ; cf . Illinois v. Allen , 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) ("The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. ... [T]rial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.").

Atkins maintains that the district court should have allowed him to proceed pro se at trial because he clearly and unequivocally invoked his right to self-representation when he repeatedly stated in his...