24-1974 United States v. Melvin Hill

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of November, two thousand twenty-five.

Present: GUIDO CALABRESI, ROBERT D. SACK, EUNICE C. LEE, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 24-1974

MELVIN HILL,

Plaintiff-Appellant,

_____________________________________

For Appellee: ZACHARY B. STENDIG, Eugenia A. P. Cowles, Gregory L. Waples, Assistant United States Attorneys, on behalf of Michael P. Drescher, Acting United States Attorney for the District of Vermont, Burlington, VT.

For Plaintiff-Appellant: JANEANNE MURRAY, Murray Law LLC, New York, NY.

Appeal from a July 16, 2024, judgment of the United States District Court for the District

of Vermont (Crawford, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Melvin Hill appeals from a judgment convicting him, following a jury trial, of two counts

of distribution of fentanyl, in violation of

(a) and (b)(1)(C); one count of possession

with intent to distribute fentanyl, cocaine base, cocaine, 50 grams or more of methamphetamine

and 500 grams or more of a substance containing methamphetamine, in violation of

(a) and (b)(1)(C); and two counts of felon in possession of a firearm, in violation of

(g)(1). Hill was sentenced to an aggregate term of 180 months of imprisonment, to be

followed by a ten-year term of supervised release. On appeal, Hill challenges several pretrial and

post-trial rulings in his counseled and pro se supplemental briefing.

BACKGROUND

In January 2022, the Burlington Police Department (BPD) received information from a

confidential informant that an individual later identified as Hill was a narcotics dealer in the

Burlington area. On February 14, 2022, following a controlled, surveilled drug purchase by the

informant from Hill, Detective Zachary Beal obtained a GPS warrant to monitor the location of

Hill’s drug-related cellphone at 15-minute intervals. Later, following a second controlled buy on

2 or around March 9, 2022, Beal obtained a warrant authorizing law enforcement to attach a tracking

device to Hill’s car. Both warrants were renewed later that month, extending the GPS location

monitoring for an additional 30 days.

Using GPS location data and surveillance, investigators determined that Hill was a registered

guest at a DoubleTree Hotel in Burlington. Beal then obtained a warrant to search Hill’s hotel

room and car on March 9. The following day, law enforcement executed this warrant and found

cocaine base, a loaded pistol, and a set of keys on Hill’s person. A search of his hotel room

yielded $3,000 in cash, while Hill’s car contained drugs, several beverage containers with false

bottoms that concealed additional narcotics, and approximately $10,000 in cash. The buy money

from the second controlled purchase was among the seized currency.

Hill was arrested and subsequently made a recorded statement to Beal, admitting to selling

drugs in Vermont and to keeping a gun for protection. While Hill was being processed, another

officer noticed two keys on Hill’s key ring that appeared to be for a padlock and a lockbox. These

keys were later found to unlock a storage unit at Flynn Avenue Self Storage in Burlington. Law

enforcement obtained and executed a warrant on the storage unit, recovering additional guns,

ammunition, and drugs.

We assume the parties’ familiarity with the remaining underlying facts, the procedural

history, and the issues on appeal, to which we refer only as necessary to explain our decision.

DISCUSSION

I. Motion to Suppress

Hill challenges the validity of the renewed search warrant that authorized an additional

thirty days of cellphone GPS tracking after the February 14 warrant expired. He argues that

3 Beal’s supporting affidavit in support of renewal failed to establish continuing probable cause

because it relied “solely on the assertion that he was a drug dealer and the government did not

know where he was staying.” Appellant’s Br. at 31–32. Hill further contends that once the

original warrant’s objective, i.e., ascertaining where Hill was staying in the Burlington area, had

been achieved, the second affidavit’s “boilerplate language” about the need to “gather intelligence

and evidence” was insufficient to justify renewal. Appellant’s Br. at 32, 36. Accordingly, Hill

maintains that, given Beal’s purportedly defective affidavit, the renewed warrant was not

supported by probable cause, and the drug and firearm evidence recovered from his storage unit

after his arrest—whose discovery he attributes to the allegedly unlawful location-tracking warrant

on his phone—constitutes derivative evidence that should have been suppressed. We disagree.

Probable cause exists when “the facts and circumstances known to the officer warrant a

prudent man in believing that the offense has been committed.” Henry v. United States,

(1959). It requires only “a fair probability that contraband or evidence of a crime will be

found.” Illinois v. Gates,

(1983). In determining whether an affidavit

establishes probable cause, courts must evaluate it “as a whole,” not in a piecemeal fashion.

United States v. Ventresca,

(1965). So long as there is a “substantial basis for

concluding that a search would uncover evidence of wrongdoing,” the warrant must be upheld.

Gates,

(citation modified).

Here, the renewed warrant was issued after a controlled buy involving the target cellphone.

In his affidavit, Beal described that transaction in detail, linked it to Hill’s cellphone, summarized

the progress of the investigation, and referenced Hill’s prior federal prosecution and state arrests.

Taken together, this information established a fair probability that GPS data from the phone would

4 yield evidence of drug trafficking and demonstrated a clear nexus between Hill’s criminal activity

and his cellphone. Far from boilerplate, the affidavit offered “powerful corroborative evidence

for purposes of determining probable cause.” United States v. Wagner,

(2d Cir.

1993).

Additionally, Hill’s contention that the renewed warrant was unnecessary, on the basis that

law enforcement already possessed some evidence of his drug trafficking and knew his

whereabouts, is unpersuasive. Authorities were under no obligation to arrest Hill immediately

following the controlled buy or when they learned of one of his frequented locations. See United

States v. Nersesian,

(2d Cir. 1987) (explaining a defendant has no right to be

arrested at a particular moment, even when probable cause exists). Rather, their decision to

extend the GPS tracking warrant in order to deepen the investigation was lawful. See United

States v. Waltzer,

(2d Cir. 1982) (“Law enforcement officers are under no

constitutional duty to call a halt to a criminal investigation the moment they have the minimum

evidence to establish probable cause.” (internal quotation marks omitted)).

II. Motion to Appoint New Counsel

Hill argues that the district court abused its discretion by denying his motion for new

counsel on grounds he characterizes as “the court’s convenience,” Appellant’s Br. at 25, 45, 51,

citing one of the court’s noted concerns that a “problem” with appointing new counsel is “we’ve

already summoned the jury,” App’x at 214. In Hill’s view, his dissatisfaction with appointed

counsel, based on counsel’s refusal to present motions addressing an interlocutory appeal or

Speedy Trial violations, constituted a legitimate basis for his alleged loss of confidence and

entitlement to new counsel. We disagree.

5 Under the Sixth Amendment, a criminal defendant is guaranteed the right to effective

assistance of counsel. However, this right does not entitle a defendant to unlimited choice of

counsel. McKee v. Harris,

(2d Cir. 1981) (“It is settled in this Circuit that once

trial has begun a defendant does not have the unbridled right to reject assigned counsel and demand

another.” (citation modified)). Courts may impose “restraints . . . on the reassignment of

counsel” to prevent manipulation of the judicial process.

We review a court’s refusal to appoint new counsel for abuse of discretion. United States

v. Jones,

(2d Cir. 2006). To determine whether denial of substitution constitutes

an abuse of discretion, courts consider four factors: (1) the timeliness of the request; (2) the

adequacy of the district court’s inquiry into the issue; (3) whether the conflict between attorney

and client was so severe that it resulted in a total breakdown in communication preventing an

adequate defense; and (4) whether the defendant substantially and unjustifiably contributed to that

breakdown. United States v. Rainford,

(2d Cir. 2024). Importantly, a

defendant cannot establish an actual conflict of interest merely by “expressing dissatisfaction with

[the] attorney’s performance.” United States v. John Doe No. 1,

(2d Cir. 2001)

(alteration in original) (internal quotation marks omitted).

Here, Kevin Henry, Hill’s third court-appointed attorney, moved to withdraw on August 3,

just eleven days before trial and a week after the final pretrial conference. Accompanying

Henry’s motion was a statement from Hill in which Hill requested that Henry “[f]ile [a] [m]otion

to be relieved as my counsel,” and declared, “I will be proceeding PRO SE representing myself.”

App’x at 260. At a hearing on the motion, Hill requested a fourth attorney, citing Henry’s refusal

to raise certain issues or file specific motions. Henry, for his part, acknowledged Hill’s lack of

6 confidence but nevertheless affirmed his preparedness to try the case.

The district court denied the motion, observing that it did “not anticipate that [Hill’s]

experience with a fourth lawyer will be any different,” as he “comes to distrust each lawyer the

court appoints,” and “appointing a new lawyer will derail the trial” and “lead to months of

additional delay in a case which has been pending since March 2022.” App’x at 262. The court

also explained to Hill the risks and disadvantages of representing himself, and made efforts to

“persuade Mr. Hill to accept representation from Mr. Henry, either as his counsel or as stand-by

counsel.”

As Hill rejected both options “on the eve of trial,” the court described Hill as

having “no practical alternative except self-representation.”

As a failsafe, the court assured

that “Mr. Henry will be available to step in and assist” should Hill change his mind concerning

representation.

These circumstances and the record as a whole do not support a finding of abuse of

discretion. First, the timing of the motion, close to trial, favors denial. See John Doe No. 1,

. Second, the court’s inquiry into why Hill wanted a new lawyer “was not merely []

perfunctory” or “superficial,”

, as it permitted Hill to explain his grievances, which

centered on Hill’s strategic disagreement with counsel rather than lack of preparation or zealous

representation, see United States v. Jones,

(2d Cir. 2006) (explaining that

disagreement over legal tactics is insufficient to give rise to an actual conflict).

The record does not support that communications between Hill and Henry had deteriorated

to a point that Henry was no longer able to provide an adequate defense. Henry represented Hill

for nearly a week after he moved to withdraw, filing a motion to bifurcate, a motion in limine,

proposed jury instructions, and proposed voir dire questions. Moreover, Henry continued to meet

7 with Hill about his case and remained in the courtroom to assist him throughout the case even

though he had been officially relieved. Based on these facts, we cannot say that the alleged

conflict between Hill and Henry was so great that it resulted in a total lack of communication

preventing an adequate defense. John Doe No. 1,

.

Finally, as to whether Hill substantially and unjustifiably contributed to the alleged

breakdown and whether the alleged irreconcilable differences can be largely attributable to Hill,

the record similarly supports the district court’s denial of substitution of counsel. The alleged

“breakdown” stemmed from Hill’s dissatisfaction with Henry’s professional judgment,

specifically his decision not to file certain motions, rather than any neglect or misconduct on

Henry’s part. “It was [thus] reasonable for the district court to conclude that [Hill] was the source

of the breakdown in communications . . . and therefore that substitution of new counsel was

unlikely to solve the problem.”

.

III. Sufficiency of the Faretta colloquy

Hill argues that the district court’s Faretta colloquy failed to determine whether he “could

make an intelligent choice about proceeding unrepresented.” Appellant’s Br. at 52. To support

this proposition, Hill cites various errors he made during trial, which, in his view, demonstrate his

“obvious incompetence to represent himself.”

at 52–53. For example, Hill maintains one

such error was the fact that “two likely felons ended up being seated on his jury and the fact that

his prior convictions were unnecessarily read to the jury.” Id. at 53. Hill also takes issue with

what he considers the court’s failure to adequately explore his purported mental health issues.

Hill’s arguments are unpersuasive.

8 A criminal defendant has a constitutional right to waive representation and proceed pro se.

Faretta v. California,

(1975). Before accepting such a waiver, the court must

ensure that it is made “knowingly and intelligently.” United States v. Hausa,

(2d Cir. 2019) (per curiam) (internal quotation marks omitted). Although there is no “talismanic

procedure,” the court should conduct an on-the-record colloquy to confirm that the defendant fully

understands the consequences of waiving counsel.

at 134–35 (internal quotation marks

omitted).

The district court’s Faretta colloquy in this case was constitutionally adequate. After

informing Hill that he “certainly [had] the right to represent [himself],” App’x at 223, the court

asked a series of questions to assess his understanding of the legal system and criminal

proceedings, the nature of the charges against him, and the potential penalties. It also advised

him of the disadvantages of self-representation and the benefits of having a trained attorney. In

a moment of candor, the court told Hill, “I’ll put my cards on the table. I strongly urge you not to

try to represent yourself and to go forward with your present counsel as your attorney.” App’x at

231.

To the extent that Hill’s challenge to the court’s colloquy centers on the limited choice he

faced—proceed with Henry or represent himself—such a contention does not render the Faretta

inquiry constitutionally deficient. See United States v. Schmidt,

(2d Cir. 1997)

(holding that a defendant was not impermissibly forced to proceed pro se merely because the court

declined to appoint new counsel on the eve of trial); United States v. Culbertson,

(2d Cir. 2012) (explaining that where the court has already replaced counsel multiple times, it

may reasonably require the defendant “either to proceed with the current appointed lawyer, or to

9 proceed pro se”). As discussed above, the district court’s refusal to appoint substitute counsel fell

squarely within its discretion.

Finally, Hill’s contention that the district court erred by failing to inquire into his mental

health during the colloquy is belied by the record. Specifically, Hill asserts that “[a]t no time

during the hearing did the court attempt to ascertain [his] competence or mental health, even

though [he] was clearly agitated and continually raised his concerns about the unfairness of the

proceeding, as well as references to God being his attorney.” Appellant’s Br. at 50.

The district court, however, directly addressed this issue, noting that it had “spent more

time in direct, unfiltered conversation with Mr. Hill than with any other defendant over the course

of the last 10 years.” App’x at 411. It found him to be courteous and capable of grasping legal

concepts, with no signs of delusion or impaired behavior.

His references to divine assistance

were interpreted as expressions of religious faith rather than indicators of mental illness. See

Based on these observations, both before and during trial, the district court concluded that Hill was

competent to represent himself and to mount a defense.

We generally uphold factual

findings unless clearly erroneous, and this finding, based on extensive and direct observations, was

not clearly erroneous, see United States v. Oliver,

, 258–59 (2d Cir. 1980) (upholding

competency determination based solely on the trial court’s observations); see also Ceraso v.

Motiva Enters., LLC,

, 316 (2d Cir. 2003) (“In reviewing findings for clear error, we

are not allowed to second-guess [] the trial court’s credibility assessments.”).

IV. Sufficiency of Special Verdict for Count Three

Hill challenges the sufficiency of the government’s evidence supporting the special verdict

under Count Three, pertaining to the amount of drugs he possessed. He specifically disputes the

10 credibility and methodology of the DEA chemists who testified that he possessed fifty grams or

more of pure methamphetamine—an amount that triggers the mandatory minimum sentence of ten

years under

(b)(1)(A)(viii). His challenge to the special verdict is unavailing.

Count Three charged a single offense under

(a), supported by two

alternative factual theories: possession of 500 grams of a methamphetamine mixture or possession

of 50 grams of pure methamphetamine. Hill was convicted of possessing both 500 grams of a

methamphetamine mixture and 50 grams of pure methamphetamine. Critically, proof of either

quantity is sufficient to support the mandatory minimum for Count Three.

In its brief, the government asserts that Hill challenges only the sufficiency of the 50-gram

pure methamphetamine finding, and Hill does not contest that characterization in his reply. Thus,

the sufficiency of the finding of possession of 500 grams of a methamphetamine mixture is not in

dispute. A “verdict should be affirmed” so long as it rests on at least one factually sufficient

theory of liability, even if another theory is unsupported. United States v. Johnson,

(2d Cir. 2019) (“‘[W]hen two theories of an offense are submitted to the jury and the evidence

supports one theory but not the other,’ the verdict should be affirmed.” (quoting United States v.

Rutkoske,

(2d Cir. 2007))).

Accordingly, even if the DEA chemists’ testimony were deemed insufficient as to the 50-

gram pure methamphetamine finding, the outcome remains unchanged due to the jury’s finding as

to the 500-gram methamphetamine mixture offense.

V. Pro Se Claims in Supplemental Briefing

Hill raises two additional challenges in supplemental briefing. First, Hill argues that the

district court abused its discretion by denying his motion for a mental health evaluation. Second,

11 Hill challenges the district court’s denial of his motion under Brady v. Maryland,

(1963), seeking phone records of the confidential informant and body camera footage from

searches executed in his hotel room, storage unit, and vehicle, and arguing that such evidence

would have demonstrated that his property was illegally searched and seized. Both challenges

lack merit.

As to the mental health evaluation, Hill filed a pro se motion four days before trial

requesting a mental health evaluation. He argued that his personal history as an adopted person

may have led to long-term, untreated mental health issues; that he had been told he exhibited

symptoms of post-traumatic stress disorder; that two immediate family members had died during

the COVID-19 pandemic; and that his mental health had been adversely affected by his conditions

of confinement.

The district court denied the motion, explaining that mental health evaluations are

appropriate only to assess competency or to support a potential insanity defense, neither of which

was at issue in Hill’s case. Hill now contends this was an abuse of discretion, arguing that an

evaluation was warranted because he asserted a diminished capacity defense and claimed his

mental health conditions impaired his ability to represent himself. We disagree.

As with Hill’s mental health challenge to the Faretta colloquy, the district court acted well

within its discretion in denying his motion. The court observed no symptoms suggesting Hill was

incompetent to stand trial or assist in his defense, and the record contains no evidence that he

suffered from a severe mental disease or defect at the time of the offense conduct. See United

States v. Arenburg,

(2d Cir. 2010) (explaining that a competency evaluation is

appropriate only if “reasonable cause” exists to believe the defendant may be incompetent); see

12 also

(a) (explaining that insanity defense requires proof that, “as a result of a severe

mental disease or defect, [the defendant] was unable to appreciate the nature and quality or the

wrongfulness of his acts”).

Concerning Hill’s Brady motion, the district court denied the motion on the record,

reasoning that it was satisfied with the government’s representation that it had turned over the

body camera footage and that it did not have the phone records. Hill now challenges this denial,

arguing that the Brady materials he sought would have demonstrated that his property was illegally

searched and seized, and that the district court should have granted him an extension of time to

review the Brady materials. Hill’s challenge is unavailing.

The government cannot be compelled to produce materials it does not possess, and Hill

offered no evidence to contradict the government’s denial of possession. See Fed. R. Crim. P.

16(a)(1)(E) (“[T]he government must permit the defendant to inspect . . . [materials], if the item is

within the government’s possession, custody, or control.”); United States v. Avellino,

(2d Cir. 1998) (“The Brady obligation extends only to material evidence . . . that is known

to the prosecutor.”). The record confirms that all existing body-camera footage was disclosed

well in advance of trial, and a government witness testified that no footage of the vehicle search

existed. The district court acted well within its discretion in denying the motion.

13 * * *

We have considered Hill’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

14