United States v. Gross

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM GROSS, JR., Defendant-Appellant.

No. 22-11543

United States Court of Appeals, Eleventh Circuit

February 6, 2024

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:21-cr-20532-PCH-1

Before ROSENBAUM, NEWSOM, and LUCK, Circuit Judges.

PER CURIAM:

Appellant William Gross, Jr., was charged with (and later convicted of) seven counts of distribution of child pornography. Although the district court appointed counsel for Gross, Gross filed pro se documents and sought to discharge his counsel. The district court held two hearings to assess Gross's intent. It found that, by his actions and words, Gross knowingly and voluntarily waived his right to counsel and would proceed pro se. Still, though, the court ordered counsel to be on standby to assist Gross. Gross went to trial and was convicted on all counts.

He now asserts that the district court violated his Sixth Amendment right to counsel because the court required him to proceed pro se. Besides that, Gross raises several claims that he did not receive a fair trial and the district court otherwise violated his constitutional rights. After careful review of the record and with the benefit of oral argument, we find no merit to any of Gross's arguments and affirm his convictions.

I. BACKGROUND

A. Pretrial Proceedings

In October of 2021, Gross was arrested, and a grand jury charged him with seven counts of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). Each of the seven counts corresponded with a date between August and November 2020 on which Gross shared an image or video of child pornography with an undercover agent from the Federal Bureau of Investigation.

Gross made his initial appearance on October 5, 2021. At that time, the magistrate judge informed Gross of the charges against him, found him to be indigent, and appointed counsel to represent him.

About two months later, Gross began filing various pro se documents about his legal representation. In one filing he entitled "Notice Nolle Prosequi," Gross stated that he was proceeding in "propria persona."^[1] Gross attached a "Judicial Affidavit of Nolle Prosequi" to this filing. In that affidavit, Gross said he was "the living human being William Gross, Jr., authorize[d] representative for fictitious business name William Gross Jr. on paper." Besides that, Gross challenged the district court's jurisdiction and lodged a continuing objection to his counsel of record, Assistant Federal Public Defender Lauren F. Krasnoff.

In other filings on the same date-such as his filings he called "Rescission of Signature"; "Notice of Unlawfully Forced, Abuse of Public Office and Abuse of Power"; and "Notice [of] Continuing Objection to All Attorney Types"-Gross reiterated these same sentiments. Again, in one of these filings, Gross insisted he was proceeding "in propria persona" and indicated that he was making a "continuing objection to all attorney types appointed including pro-se, Lauren F Krasnoff, Private attorney, Federal Public Defender Officer, or any other attorney types appointed in this legal matter."

The next day, Krasnoff moved for a status conference to address Gross's remarks about his legal representation. By way of explanation for her motion, Krasnoff noted that Gross's recent filings included a request that she no longer represent Gross. The motion also recounted that during a legal visit, Gross asked a prison guard to inform Krasnoff that he no longer wanted her legal representation. Then Gross left the visitation room and refused to speak with Krasnoff.

1. Status Conference

On January 6, 2022, the district court held a telephonic status conference, during which Krasnoff voiced concerns about Gross's filings and the fact that he would not speak with her. The district court observed that Gross had filed several notices that "don't make a lot of sense," so he asked Gross to explain his concerns.

Gross responded to the judge (Judge Huck), "Mr. Huck, I do object to this conference call. I do also object to any attorney-type proceedings." And he said, "I object to my attorney in this case." The district court asked if Gross wished to represent himself in the case, and Gross responded, "I am proceeding in propria persona." In response, the court explained that it understood Gross to mean that he wanted to discharge Krasnoff and asked if Gross had another lawyer to represent him. Gross responded that he did not. And the court asked, "So you want to proceed on your own, representing yourself; is that the case?" Gross replied, "I am representing myself in propria persona. I am objecting to pro se and any private attorneys or public defenders or officers of the court.

The district court repeatedly inquired, "What does that mean?" Then, a third time, the court asked Gross whether he wanted to "discharge Ms. Krasnoff as your lawyer, and . . . repre-sent[] yourself without a lawyer." This time, Gross responded, "I am objecting to all attorney types, and I am proceeding in propria per-33 sona.

The court tried yet again, explaining that unless Gross said otherwise, it understood Gross wanted to represent himself. Gross persisted, repeating, "I am here in propria persona." When the court again asked what Gross meant, Gross said, "I am here. I am a living human being. I am here for the fictitious name on paper." The court expressed its belief that Gross was "play[ing] games with the Court" and indicated that it would allow Gross to represent himself and Krasnoff would serve as back-up counsel to advise him.^[2] Then, the district court moved on and advised Gross that if he did not wish to plead guilty, trial would begin on February 14th. Once again, though, Gross said, "I understand, but I am objecting to filing as pro se....I'm not agreeing to going into this court with pro se."

Yet again, the court tried to confirm with Gross what he wanted. So the court asked, "Do you want to proceed with or without counsel? Tell me yes you want to proceed with counsel, or no you don't want to proceed with counsel. Which is it?" Gross replied, "No, I'm objecting to all counsel, to all attorney types."

Given that answer, the court reiterated that trial would proceed on February 14th, Gross would represent himself at trial, and Krasnoff would serve as standby counsel, "available for consultation and to answer any questions you may have about the proceedings."

The government questioned Gross in an effort to confirm that his waiver of his right to counsel was knowing and voluntary. Gross confirmed he was not under the influence of any medication and had never taken any sort of psychiatric medication or seen a psychiatric official for mental-health issues. He also said that no medication, drugs, alcohol, or mental-health concerns affected his ability to understand the proceedings. When asked if he was waiving his right to counsel knowingly and voluntarily, Gross, responded, "Yes. I'm objecting to all attorney types."

The hearing concluded with the court explaining, "[Y]ou're pretty much on your own now, but you have access to [Krasnoff's] help and assistance if you so choose to seek that. I would recommend that you do seek that, because [Krasnoff is] a very good lawyer, and she can help you with regard to your defense, but that's your choice. You have the right to represent yourself, and I'm going to acknowledge that right and allow you to proceed."

The next day, the court issued a written order granting defense counsel's oral motion to withdraw as counsel. In the Order, the court concluded that Gross "knowingly and voluntarily waived his right to counsel and is competent to do so."

2. Faretta Hearing

Gross continued to file various documents in which he voiced his intent to proceed in propria persona and his objection to the federal public defender and "any other attorney types appointed in this legal matter." In the meantime, the government sought for the district court to conduct an inquiry pursuant to Faretta v. California, 422 U.S. 806 (1975), to establish that Gross understood the risks of representing himself and that he freely made that choice.

Based on this request, the district court held another hearing on January 18, 2022, nearly a month before trial was scheduled to start. At the beginning of the hearing, the court noted that Gross had previously indicated that he wanted to proceed as his own lawyer. When the court asked, "do you still want to proceed on your own?" Gross responded, "Objection. I'm not here to proceed on my own. I am here to object to all attorney types."

The court questioned Gross about his background. Gross said that he had a twelfth-grade education, did not suffer from any mental illness, and had not consumed any drugs or alcohol in the prior 24 hours. He also reported that his occupation was in retail business. When asked whether he had ever studied law, Gross said he had not, but he mentioned he picked up some informal training in the law at the Bureau of Prisons. Although Gross noted that he had never been involved in a prior criminal proceeding, he said he understood the nature of the charges brought against him, his possible defense, and the fact that, if convicted, he was facing a mandatory minimum sentence of five years and up to a maximum of twenty years as to each of the counts.

Gross also assented that he understood he would be doing all of the legal work. Even so, though, he remarked, "but I am not proceeding as pro se." In response, the court again explained that Krasnoff would serve as standby counsel, which meant "if [Gross] had some questions that [he] would want to discuss with her, get some advice from her . . . that ...