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Date: 11-30-2021
Case Style:
United States of America v. Charles Senke
Case Number: 19-1287
Judge: Julio M. Fuentes
Court:
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
On appeal from The United States District Court
for the Middle District of Pennsylvania
Plaintiff's Attorney: Michelle L. Olshefski [Argued]
Office of United States Attorney
Defendant's Attorney:
Description:
New York, NY - Criminal defense lawyer represented defendant with a attempted sex offenses involving a minor charges.
Appellant Charles Senke challenges his conviction for
attempted sex offenses involving a minor, raising four
objections. First, he contends that it was error for the District
Court not to inquire into his motions regarding counsel’s
performance. Second, he asserts that the District Court erred
when it failed to verify at sentencing that he discussed the
presentence report with counsel. Third, he takes issue with
several special conditions of supervised release. Finally, he
argues that a special assessment fee was erroneously imposed
pursuant to a statute enacted after his offense conduct.
3
While the District Court’s failure to address Senke’s
complaints regarding his counsel was an abuse of discretion
under our precedent in United States v. Diaz,
1 we decline to
review this error for prejudice on direct appeal in the first
instance. We also conclude that Senke was not prejudiced by
the District Court’s failure to verify on the record that Senke
and his attorney discussed the presentence report before
imposing sentence. Finally, because the special conditions of
supervised release banning Senke’s computer and internet use
run afoul of our precedent in United States v. Holena,
2 and
because the Government concedes that the imposition of these
conditions and a special assessment fee was plain error, we will
remand for further proceedings on these issues. Accordingly,
we will affirm in part and vacate and remand for further
proceedings in part.
I. BACKGROUND
A. Offense Conduct
Appellant Charles Senke was arrested after striking up
an online conversation on a popular social networking site with
an undercover detective posing as an underage boy. In the
course of that correspondence, Senke requested naked
photographs of the underage boy, asked about the boy’s sexual
experiences, transmitted graphic photographs of himself and
others, and offered to buy the boy gifts. During these
exchanges, Senke was reminded multiple times that he was
purportedly conversing with a minor.
1 951 F.3d 148 (3d Cir. 2020).
2 906 F.3d 288 (3d Cir. 2018).
4
The pair eventually made plans to meet. Senke agreed
to travel to a mall near where he believed the boy lived. On
the day of the planned meeting, Senke’s vehicle was spotted by
undercover detectives and followed into the mall parking lot.
As Senke pulled into a parking spot, the detectives stopped the
vehicle and took Senke into custody. Detectives found a cell
phone, condoms, personal lubricant, a laptop computer, a
memory card and other personal items in Senke’s car.
B. Procedural History
Senke was charged in a three-count Superseding
Indictment by a federal grand jury in Scranton, Pennsylvania
for his attempts to engage in illicit sexual conduct with a
minor.
3
He appeared before the District Court and pleaded not
guilty. He was then appointed a federal public defender to
represent him. Less than two months later, the federal public
defender filed a motion to withdraw as counsel, citing
irreconcilable differences regarding case strategy. The District
Court held a hearing on the matter, at which time Senke
indicated that he wished to proceed pro se. After interviewing
Senke, the District Court permitted him to proceed pro se, with
the public defender as standby counsel.
Acting in a pro se capacity thereafter, Senke filed a
plethora of pretrial motions, challenging the charges, the
evidence, and his detention. The motions were denied.
3 Senke was charged with violating 18 U.S.C. §§ 2423(b),
2422(b), 1470.
5
Following a conversation at a subsequent detention hearing,
the District Court indicated that Senke agreed to accept
appointed counsel. The District Court appointed a Criminal
Justice Act attorney, Matthew T. Comerford, to represent
Senke going forward.
i. Pretrial Complaints about Comerford
In April 2018, Senke filed a pro se motion titled, “Pro
Se Omnibus Pre-Trial Motion” and “Inadequate
Representation.”4
In that motion, Senke asserted that
Comerford, inter alia, (i) tried to pressure him to take a plea
deal, (ii) did not take or return phone calls, (iii) refused to go
over evidence, calling it “to[o] disgusting,” (iv) failed to turn
over discovery to Senke, and (v) was not preparing a defense
strategy for trial.5
Senke also asserted that with Comerford as
counsel, he “cannot get a fair and just trial.”6
Senke did not,
however, specifically request the appointment of new counsel.
The District Court took no action on this motion.
Instead, Comerford filed a motion in July 2018, requesting that
co-counsel be added to Senke’s defense team. The District
Court granted the motion, appointing Comerford’s associate,
Curt M. Parkins, to assist at trial.
A pretrial conference was held in August 2018. The
conference was attended by Comerford and Parkins, and the
prosecutor, but not Senke. At the conference, Comerford
indicated that Senke was giving him “a hard time” about filing
4 App. 315-17. 5 App. 316.
6 App. 317.
6
additional pretrial motions.7
Comerford stated, “I’m just
letting you know he’s not happy with me that I am not filing
more motions.”8
The District Court responded, “[h]e doesn’t
have much of a chance of losing you, right. You’re the second
or third guy on this deal.”9
In apparent reference to Senke’s pretrial letter regarding
counsel, Comerford stated, “[Senke is] putting in writing that I
am not doing things.”10 This conversation prompted the
prosecutor to ask, “He’s not trying to fire you, is he?”11
Comerford responded, “[n]ot that I know of,” and Parkins
stated, “[j]ust difficult.”12 The hearing concluded without any
further mention of Senke’s letter.
In the months leading up to trial, Senke did not submit
any additional requests or communications to the District
Court regarding his defense team. Trial commenced on
October 2, 2018 with Comerford and Parkins representing
Senke. Defense counsel did not present any evidence, and
relied solely on a defense of entrapment. The next day, the jury
returned a guilty verdict on all counts.
ii. Post-trial Complaints about Comerford
While awaiting sentencing, Senke filed three pro se
motions regarding counsel. The first motion, requested that
7 App. 337. 8 App. 338.
9 Id.
10 App. 338-39.
11 App. 339 (alterations in original).
12 Id.
7
Comerford be substituted for “an appealant [sic] attorney.”13
The second motion, informed the District Court that Senke sent
a complaint to the Disciplinary Board and requested
“substitution of counsel in regard to the above-mentioned
matters.”14 The third motion, requested “a CJA Appealant
[sic] appointment by the Court.”15
The District Court denied the first and third motions in
written orders. In denying the first motion, the District Court
footnoted its understanding of Senke’s request for an
“appealant [sic]” attorney as follows:
The deadline for defendant filing an appeal runs
from the entry of judgment. Fed. R. App. P.
4(b)(1) (“In a criminal case, a defendant’s notice
of appeal must be filed in the district court within
14 days after the later of … the entry of either the
judgment or order being appealed; or … the
filing of the government’s appeal.”) The
judgment will be entered after defendant is
sentenced. Upon appeal, the Third Circuit Court
of Appeals has authority to appoint counsel for
the defendant.16
In denying the third motion, the District Court stated that
Senke’s “pro se motion to substitute counsel for appellate
reasons” was denied because “[t]he appeals court will deal with
13 App. 637.
14 App. 638.
15 App. 642.
16 App. 641.
8
appointing defendant counsel for appeal purposes.”17 The
District Court did not separately respond to the second motion.
iii. Sentencing
After the jury verdict, the District Court ordered a
presentence investigation report (the “PSR”) to be filed. Senke
submitted his own objections to the draft PSR, and Comerford
filed a sentencing memorandum on Senke’s behalf. The final
PSR was filed, and an addendum was concurrently filed
addressing Senke’s objections. As relevant on appeal, the
District Court did not confirm at sentencing that Senke and
Comerford had an opportunity to discuss the PSR together.
Sentencing was held on January 29, 2019. The final
PSR provided a Guidelines imprisonment range of 168 to 210
months. Prior to imposing the sentence, the District Court
sustained an objection with respect to a five-level enhancement
under U.S.S.G. § 4B1.5(b)(1) for repeat prohibited sexual
conduct, and adjusted Senke’s total offense level from 35 to
30. Because Count II carried a statutory mandatory minimum
sentence of ten years’ imprisonment, the adjusted Guidelines
range was 120 to 121 months. The District Court sentenced
Senke to the mandatory minimum term and ten years of
supervised release. Additionally, it imposed 17 special
conditions of supervised release, including:
1. You must submit to substance abuse testing to
determine if you have used a prohibited
substance;
17 App. 650.
9
6. You must not have direct contact with any
child you know or reasonably should know to be
under the age of 18, including your own children,
without the permission of the probation officer;
7. You must not go to, or remain at, any place
where you know children under the age of 18 are
likely to be, including parks, schools,
playgrounds, and childcare facilities;
8. You must not go to, or remain at, a place for
the primary purpose of observing or contacting
children under the age of [18];
10. You must submit to periodic polygraph
testing at the discretion of the probation officer
as a means to ensure that you are in compliance
with the requirements of your supervision or
treatment program;
11. You must not possess and/or use computers .
. . or other electronic communications or data
storage devices or media;
12. You must not access the Internet except for
reasons approved in advance by the probation
officer;
13. You must allow the probation officer to
install computer monitoring software on any
computer . . . you use;
14. To ensure compliance with the computer
monitoring condition, you must allow the
10
probation officer to conduct initial and periodic
unannounced searches of any computers . . .
subject to computer monitoring;
15. You must submit your person, property,
house, residence, vehicle, papers, computers . . .
other electronic communications or data storage
devices or media, or office, to a search conducted
by a United States probation officer.18
Senke was also ordered to pay a special assessment fee of
$10,000 under the Justice for Victims of Trafficking Act of
2015 (the “JVTA”).
19 This appeal followed.
II. JURISDICTION
The District Court had subject matter jurisdiction over
this criminal case pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). The District Court entered its judgment on January
30, 2019, and a timely notice of appeal was filed on February
1, 2019.
18 App. 13-14, 665-67.
19 18 U.S.C. § 3014
11
III. DISCUSSION
Senke raises four issues on appeal: (1) the District
Court’s failure to inquire into his motions regarding counsel;
(2) the District Court’s failure to verify that he and his attorney
discussed the PSR before sentencing; (3) the imposition of
contradictory, vague, excessively delegative, or overbroad
conditions of supervised release; and (4) the imposition of a
special assessment fee pursuant to a statute enacted after the
offense conduct. We address each in turn.
A. The Failure to Inquire
Senke’s primary argument is that the District Court
erred in not inquiring into his motions regarding counsel. We
review a district court’s decision on a motion for appointment
of counsel for abuse of discretion.20 The Sixth Amendment
guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for
his defence.”21 As relevant here, indigent defendants are
permitted to request the appointment of new counsel, or to
proceed pro se, if they are unhappy with their current courtappointed attorney.
22
If a defendant requests substitute counsel, the court
must evaluate whether the defendant’s justification for seeking
new counsel is based on “good cause” to “justify a continuance
20 See United States v. Gibbs, 190 F.3d 188, 207 n.10 (3d Cir.
1999).
21 U.S. Const. amend. VI.
22 See United States v. Welty, 674 F.2d 185, 187 (3d Cir. 1982).
12
of the trial in order to allow new counsel to be obtained.”23 We
have explained that good cause can be “a conflict of interest, a
complete breakdown of communication, or an irreconcilable
conflict with the attorney.”24 “[T]he district court must engage
in at least some inquiry as to the reason for the defendant’s
dissatisfaction with his existing attorney” to determine whether
the defendant has shown good cause.
25
We recently addressed the issue of a court’s failure to
inquire into a motion for substitute counsel in United States v.
Diaz.
26 There, the indigent criminal defendant wrote to the
District Court five times before trial regarding issues with
appointed counsel. Despite not specifically requesting new
counsel in the first two communications, the District Court
ordered defendant’s attorney to respond to the letters. The
attorney did not do so. On the third attempt, defendant stated,
“I am requesting that you consider appointing me new
counsel.”27 The District Court took no action. Instead, one
month later, defendant’s attorney filed a motion for
continuance in which he represented that all issues between
counsel and defendant were resolved. Counsel and defendant
then appeared together at a pretrial conference, and neither
raised any issues involving representation. Nevertheless,
23 Id.
24 United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir.
1995). 25 Welty, 674 F.2d at 187; see also Martel v. Clair, 565 U.S.
648, 664 (2012) (“As all Circuits agree, courts cannot properly
resolve substitution motions without probing why a defendant
wants a new lawyer.”).
26 951 F.3d 148 (3d Cir. 2020).
27 Id. at 153.
13
defendant wrote to the District Court two more times before
trial raising similar concerns. But, defendant did not renew his
request for new counsel in either of these letters. The case
proceeded to trial without further inquiry.
In finding no abuse of discretion, we noted that “the
District Court may not have been as attentive to [defendant’s]
complaints regarding his counsel as it should have been,” but
that soon after defendant’s request, the District Court “had
good reason to believe [the attorney] was communicating with
[defendant] such that [defendant’s] request was withdrawn or
moot.”28 We explained that the information the District Court
received in the motion for continuance made it clear that the
attorney was paying attention to defendant’s requests, and
intervention was unnecessary. Thus, Diaz presented “a unique
circumstance,” and the “District Court’s inaction would . . .
normally raise serious questions.”29
Turning to the case at hand, we are yet again presented
with a claim of a district court’s inaction. The Government
argues that because Senke did not explicitly request substitute
counsel in his pretrial motion, the District Court was under no
obligation to act. This places an inappropriately strict
requirement on pro se defendants to know the law and
articulate the exact action they desire from the court.30 And
28 Id. at 152, 155.
29 Id. at 155.
30 Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011)
(explaining that our “policy of liberally construing pro se
submissions is driven by the understanding that . . . [there] is
an obligation on the part of the court to make reasonable
allowances to protect pro se litigants from inadvertent
14
Diaz suggests that district courts should at least attempt to
inquire further when made aware of a possible breakdown in
communication.31 Moreover, we have said that a
communication breakdown could be sufficient for a good
cause finding, and we have not made such a finding contingent
on the filing of a clearly articulated motion.32 Here, the District
Court was made aware of a potential breakdown in
communication.
Similar to the defendant in Diaz, Senke submitted a
communication to the District Court in which he complained
about his attorney, but he stopped short of asking for substitute
counsel. The communication raised serious issues, including
that Comerford was not preparing for trial and had called the
evidence “to[o] disgusting” to review with Senke.33 This alone
gives us pause as to the District Court’s inaction. But then at a
pretrial conference, Comerford brought the strained
relationship to the District Court’s attention. Referencing
Senke’s pretrial motion, Comerford explained that the conflict
stemmed from his refusal to file additional pretrial motions,
and Senke’s insistence that he do so. Of course, an attorney is
not required to take every action that his client desires.34 But
forfeiture of important rights because of their lack of legal
training”) (internal quotation marks and citations omitted).
31 Diaz, 951 F.3d at 155 (“It is clear that the Court was aware
of [defendant’s] concerns, and it took some action to remedy
the situation when it ordered [the attorney] to file a response to
[defendant’s] [first] letter.”).
32 See Welty, 674 F.2d at 188. 33 App. 316.
34 See Taylor v. Illinois, 484 U.S. 400, 418 (1988) (“The
adversary process could not function effectively if every
15
this conversation, coupled with Senke’s letter raising alarming
concerns, should have indicated to the District Court that
further inquiry was necessary.
In Diaz, we cautioned that “[a]lthough the requisite
inquiry may consider a variety of sources and need not include
a one-on-one colloquy with the defendant,” we must also
consider “the importance of allowing the defendant, as well as
counsel, the opportunity to be heard on the matter.”35 We
further warned that “if a district court fails to make ‘any onthe-record inquiry as to the reasons for the defendant’s
dissatisfaction with his existing attorney,’ it abuses its
discretion.”36
Here, the District Court neither allowed Senke the
opportunity to clarify his communication, nor made any
searching inquiry on the record that would satisfy us that it had
deduced the reasons for Senke’s dissatisfaction. Indeed, at the
pretrial conference, which Senke was not a part of, the only
colloquy regarding the meaning of Senke’s communication
occurred between defense counsel and the prosecutor.
Heeding our warnings in Diaz, we are not convinced that based
tactical decision required client approval.”); see also Gonzalez
v. United States, 553 U.S. 242, 248-50 (2008).
35 951 F.3d at 154; see United States v. Hodge, 870 F.3d 184,
202 (3d Cir. 2017) (“[B]y only gathering information from
counsel whom a defendant wishes to reject, but not the
defendant himself, a trial court creates some risk of
overlooking some latent, legitimate reason for substitution that
is not articulable by his counsel.”).
36 Diaz, 951 F.3d at 154 (citing McMahon v. Fulcomer, 821
F.2d 934, 944 (3d Cir. 1987)).
16
on perfunctory exchanges at one pretrial conference where (i)
the defendant was not present, and (ii) the District Court
conducted no further inquiry, the District Court had “good
reason to believe” that Comerford and Senke were
communicating again before trial.37 Moreover, Senke
reiterated his concerns regarding Comerford’s lack of
communication in his post-trial motions. He also raises the
issue before us, where there is a question of whether
Comerford reviewed the PSR with Senke. It seems then, these
communication issues were not resolved, and we see no reason
for the District Court to believe that they were before trial. For
these reasons, we are persuaded that the District Court’s failure
37 Diaz, 951 F.3d at 155; see also McMahon, 821 F.2d at 942-
44 (holding that trial court erred by denying defendant’s
request for a continuance to obtain new counsel based “upon
counsel’s communication that he knew of no reasonable basis
for his discharge . . . without engaging in any on-the-record
inquiry as to the reasons for the defendant’s dissatisfaction
with his existing attorney.”). It is worth noting that the District
Court’s comment that Senke “doesn’t have much of a chance
of losing” Comerford because he was “the second or third guy
on this deal,” is irrelevant to our analysis. App. 338. We have
been clear that the obligation to inquire is in no way dependent
on the number of requests a defendant has made, nor the
number of attorneys that have represented a defendant. See
Diaz, 951 F.3d at 154-55; McMahon, 821 F.2d at 942 (“Even
when the trial judge suspects that the defendant's contentions
are disingenuous, and motives impure, a thorough and
searching inquiry is required.”). And these comments do not
suggest that the District Court reviewed and considered
Senke’s motion.
17
to inquire into Senke’s pretrial motion was an abuse of
discretion.
Finding error, we must evaluate its impact and proper
remedy.38 This analysis is contingent upon the right implicated
38 Our dissenting colleague points to dicta in Martel suggesting
that the Court of Appeals in that case had “ordered the wrong
remedy even assuming the District Court had abused its
discretion in denying [the habeas petitioner’s] substitution
motion without inquiry.” Martel, 565 U.S. at 666 n.4; see also
dissent at page 15. The Supreme Court there noted that had the
Court of Appeals correctly determined that the district court
abused its discretion in declining to evaluate the petitioner’s
request for new counsel, it should have “remand[ed] to the
District Court to decide whether substitution was appropriate
at the time of [petitioner’s] letter. Unless that court determined
that counsel should have been changed, the Court of Appeals
had no basis for vacating the denial of [petitioner’s] habeas
petition.” Martel, 565 U.S. at 666 n.4. Our dissenting
colleague argues we should remand here for the same purpose,
and that Martel “rejected the functional equivalent of a
prejudice standard, too.” Dissent at page 15 n.66. But this
reads too much into the Supreme Court’s suggestion. The
language our colleague cites for the rejection pertains to the
separate question of what a capital habeas petitioner must show
to substitute counsel under 18 U.S.C. § 3599. See Martel, 565
U.S. at 656-63. The Supreme Court held the same “interests
of justice” standard on motions to substitute counsel in noncapital criminal cases should also apply to capital habeas
petitioners seeking new counsel. Id. at 660, 663. The Court
did not address whether a defendant who had a substitution
motion wrongfully denied would have to demonstrate
18
by Senke’s claim. Senke asserts that the failure to inquire into
a defendant’s dissatisfaction with appointed counsel is
structural error—meaning reversal is required regardless of
whether the defendant can show prejudice or harm. But he is
confusing his right to any counsel with his right to effective
counsel. These rights are distinct, and so, too, is our analysis
of each.
The cases Senke and the dissent rely on for the assertion
of structural error involved defendants that sought substitution
of counsel on the eve of trial, had their request denied, and
therefore were forced to choose between going to trial pro se
or with counsel they were dissatisfied with.39 Where a
defendant then elects to proceed pro se, he or she must
knowingly and voluntarily waive the right to any counsel.40
This requires the district court to conduct an analytically
distinct inquiry “guaranteeing that the defendant understands
what he is giving up, that he is ‘made aware of the dangers and
disadvantages of self-representation.’”41 In these cases, it was
the failure to conduct this separate inquiry that required
prejudice. But its suggestion that remand would be necessary
even if the Court of Appeals concluded that the district court
abused its discretion by not inquiring into the basis for the
substitution motion suggests that the failure to inquire into
dissatisfaction with counsel, without more, is not structural
error.
39Welty, 674 F.2d at 187; Goldberg, 67 F.3d at 1096;
McMahon, 821 F.2d at 936-37. 40 Welty, 674 F.2d at 190.
41 Id. (quoting Faretta v. California, 422 U.S. 806, 835 (1975)).
19
reversal, not an inadequate inquiry into the reasons for a
defendant’s dissatisfaction with counsel.42
To be certain, if Senke were asserting that his right to
retained counsel of choice was violated, such deprivation
would be structural error.43 The same would be true if he were
42 Welty, 674 F.2d at 194 (“Because this record does not
disclose that Welty effectively waived his constitutional right
to counsel, we are obliged to reverse his conviction.”);
Goldberg, 67 F.3d at 1099, 1102 (finding “no abuse of
discretion in the denial of the continuance” to seek retained
counsel, but vacating conviction because “the district court
failed to inform Goldberg of the risks of self-representation in
accordance with Faretta and Welty.”); McMahon, 821 F.2d at
946 (“[W]e hold that the trial court failed properly to determine
whether McMahon’s waiver of his sixth amendment right of
counsel was knowing and intelligent.”). McMahon made this
point particularly clearly, holding that it would have reversed
the petitioner’s conviction in that case “even if [the court] were
to have found the trial judge’s denial of petitioner’s
continuance motion [to seek new retained counsel] proper.”
821 F.2d at 944. The dissent also misreads the rationale of
these decisions. They did not require reversal because “the
defendants were forced to choose between representing
themselves and counsel that they had lost faith in.” Dissent at
page 12. This Court reversed because they had not effectively
waived their right to counsel.
43 See United States v. Gonzalez-Lopez, 548 U.S. 140, 148-52
(2006) (affirming Eighth Circuit’s reversal of conviction where
defendant was deprived of his right to paid counsel of his
choosing); see also United States v. Rankin, 779 F.2d 956, 960-
61 (3d Cir. 1986) (vacating and remanding for new trial where
20
asserting that he was denied the right of self-representation.44
This is because a choice-of-counsel violation or a selfrepresentation violation occurs at the moment the defendant’s
choice is wrongfully denied.45 But the Supreme Court has
been careful to distinguish these rights from the right to
effective assistance of counsel.
The right to effective counsel is derived from the
guarantee of a fair trial in the Due Process Clause, and the
elements of a fair trial are defined through the Sixth
Amendment.46 The Sixth Amendment recognizes the right to
effective assistance “because it envisions counsel’s playing a
role that is critical to the ability of the adversarial system to
produce just results.”47 Accordingly, “[a]n accused is entitled
to be assisted by an attorney, whether retained or appointed,
who plays the role necessary to ensure that the trial is fair.”48
A violation of the right to effective counsel requires a showing
district court refused to continue trial date, forcing defendant
to proceed to trial with appointed counsel when his retained
counsel of choice was unavailable).
44 See McKaskle v. Wiggins, 465 U.S. 168, 177-78 n.8 (1984).
45 See Gonzalez-Lopez, 548 U.S. at 150.
46 Id. at 146 (citing Strickland v. Washington, 466 U.S. 668,
684-85 (1984)).
47 Strickland, 466 U.S. at 685; see Gonzalez-Lopez, 548 U.S. at
147 (explaining that “[t]he earliest case generally cited for the
proposition that ‘the right to counsel is the right to the effective
assistance of counsel,’ . . . was based on the Due Process
Clause rather than on the Sixth Amendment[.]” (citing
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970))).
48 Strickland, 466 U.S. at 685.
21
of prejudice, because “[c]ounsel cannot be ineffective unless
his mistakes have harmed the defense[.]”49
By contrast, the right to counsel—including, inter alia,
the right to counsel of choice and the right to selfrepresentation—“has never been derived from the Sixth
Amendment’s purpose of ensuring a fair trial.”50 Rather, such
rights are “the root meaning of the constitutional guarantee.”51
The deprivation of these rights qualifies as structural error
because, in part, the consequences “‘are necessarily
unquantifiable and indeterminate.’”52 The Supreme Court has
expressed a reluctance to expand the narrow category of rights
that qualify for per se reversal.53
Here, Senke’s claim does not fall into one of the
established categories of structural error. He has not asserted
49 Gonzalez-Lopez, 548 U.S. at 147 (internal quotation marks
omitted).
50 Id. at 147-48; see Faretta, 422 U.S. at 819-21.
51 Gonzalez-Lopez, 548 U.S. at 147-48.
52 Gonzalez-Lopez, 548 U.S. at 150 (quoting Sullivan v.
Louisiana, 508 U.S. 275, 282 (1993)). 53 See generally, Mickens v. Taylor, 535 U.S. 162, 173-74
(2002) (limiting automatic reversal rule established in
Holloway v. Arkansas, 435 U.S. 475 (1978) and holding that to
demonstrate a Sixth Amendment violation where trial court
failed to inquire into potential conflict of interest, defendant
had to establish conflict adversely affected counsel’s
performance); see id. at 166 (collecting cases “where
assistance of counsel has been denied entirely or during a
critical stage of the proceeding[,]” sparing the defendant from
the need to show effect on the outcome of trial).
22
that he was deprived of his right to counsel of choice. Indeed,
he cannot, because the right to choose one’s own counsel does
not extend to defendants who require appointed counsel.
54
And he has not claimed that he was somehow deprived of his
right to knowingly and intelligently represent himself.55 Nor
has Senke claimed that Comerford had any conflict of
interest,
56 or that he was so “embroiled in irreconcilable
conflict” with Comerford that he was deprived “of the effective
assistance of any counsel whatsoever,” as some of our sister
circuits have examined.57 Despite his earlier misgivings with
counsel, Senke proceeded to trial with the assistance of
Comerford. He therefore cannot also claim that he was denied
the right to any counsel at all.
54 See Gonzalez-Lopez, 548 U.S. at 151; Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 626 (1989).
55 Cf. Faretta, 422 U.S. at 835.
56 Goldberg, 67 F.3d at 1098.
57 Compare United States v. Smith, 640 F.3d 580, 590 (4th Cir.
2011) (quoting Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.
1970)), with United States v. Wallace, 753 F.3d 671, 675 (7th
Cir. 2014) (“If communication with the defendant’s counsel
broke down as a result of neglect or ineptitude by counsel, the
defendant may have a claim of ineffective assistance of
counsel, but to prove that he would have to present evidence.”)
and United States v. Smoot, 918 F.3d 163, 169 (D.C. Cir. 2019)
(“A defendant challenging the denial of a motion to substitute
counsel must show that he was not ‘afforded effective
representation’ in order to show that denial of the motion was
prejudicial.” (quoting United States v. Graham, 91 F.3d 213,
221 (D.C. Cir. 1996))).
23
Instead, it is possible to examine the record for
identifiable mistakes and assess whether those mistakes
affected the outcome of his trial.58 Senke’s claim is therefore
more appropriately viewed as one for ineffectiveness, which
must be reviewed for prejudice. The wrinkle, though, is that
Senke has not attempted to show prejudice in this direct appeal.
And the District Court has not yet evaluated the matter. This
is why, generally, we do not review claims of ineffectiveness
on direct appeal and prefer that they be raised through a habeas
corpus proceeding.
59 Accordingly, although the District Court
failed to inquire into Senke’s complaints about counsel, we
conclude that we cannot grant Senke relief on this claim as it
is presently framed. We note that our disposition is without
prejudice to Senke’s ability to bring a claim under 28 U.S.C.
§ 2255.60
58 See Gonzalez-Lopez, 548 U.S. at 150.
59 See United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir.
1993).
60 There is some support for our holding from our sister
circuits. For example, the First Circuit in United States v.
Mota-Santana, 391 F.3d 42, 45-46 (1st Cir. 2004), rejected a
defendant’s contention that there was a conflict of interest
requiring reversal where counsel was ordered to respond to his
client’s expressions of dissatisfaction. It explained that
[w]ere disagreements between attorney and
client to be treated in the same manner as
[conflict of interest cases]—with resulting
possible per se reversal without the necessity of
proving prejudice—the nature of appeals in
criminal cases would be dramatically altered.
The odds are that many an unsuccessful
24
defendant would be found nursing some
disagreement with counsel.
Id. at 46. Likewise supporting a showing of prejudice, the
Second Circuit observed in United States v. Doe #1, 272 F.3d
116, 123 (2d Cir. 2001), that “if the reasons proffered [in a
substitution motion] are insubstantial and the defendant
receives competent representation from counsel, a court’s
failure to inquire sufficiently or to inquire at all constitutes
harmless error.” Cf. United States v. Morrissey, 461 F.2d 666,
670 (2d Cir. 1972) (indicating a reluctance to reverse even
where defendant raised serious issues with counsel, and
ultimately affirming because defendant’s contentions were
incorrect or subsequently cured, but noting that “[w]ithout
more, [the trial judge’s] failure to inquire, in our view, would
constitute error sufficient for reversal of the judgment of
conviction.”). Similar to the holding in United States v. Doe
#1, the Eighth Circuit in United States v. Jones, 795 F.3d 791,
797 (8th Cir. 2015), found no abuse of discretion where the
magistrate judge denied defendant’s substitution motion
without inquiry because the motion contained all of the
information the court needed to make a ruling. In so finding,
the Eighth Circuit explained that even if a trial court abuses its
discretion, “the Sixth Amendment does not require an
automatic reversal of the conviction.” Id. at 796 (citing Martel,
565 U.S. at 666 n.4 (reviewing renewed motion for substitution
of appointed counsel in federal habeas corpus proceeding, and
noting that the Ninth Circuit ordered the wrong remedy even if
the district court abused its discretion because “[t]he way to
cure that error would have been to remand to the District Court
to decide whether substitution was appropriate at the time of
[defendant]’s letter.”)). Even the Ninth Circuit, though
25
As to Senke’s post-trial motions for new counsel, we
conclude that the District Court did not abuse its discretion by
not appointing substitute counsel for sentencing purposes.
Senke stated multiple times in his post-trial motions that he
was requesting “appealant [sic]” counsel. The District Court
reasonably understood this to be a request for appellate
counsel.
61 Accordingly, it was not error for it to conclude that
any action on its part was moot.
B. The Failure to Verify
Senke next argues that the District Court failed to
comply with Federal Rule of Criminal Procedure 32(i)(1)(A),
which provides that “[a]t sentencing, the court: (A) must verify
that the defendant and the defendant’s attorney have read and
discussed the presentence report and any addendum to the
previously supporting automatic reversal, see Craven, 424
F.2d at 1170, has reinforced that unless there is a constructive
denial of counsel, defendant must show prejudice. Schell v.
Witek, 218 F.3d 1017, 1026-28 (9th Cir. 2000) (en banc)
(reversing, in part, district court’s denial of defendant’s
petition for a writ of habeas corpus and remanding for
evidentiary hearing to determine the nature and extent of the
conflict between defendant and his attorney and whether that
conflict deprived defendant of adequate representation); see
United States v. Musa, 220 F.3d 1096, 1102-03 (9th Cir. 2000)
(vacating sentence and remanding for a hearing on the nature
of the conflict between defendant and his attorney, and
instructing that “[i]f, after a thorough inquiry, the district court
finds no breakdown in communication that prevented an
adequate defense, it may reinstate the sentence.”).
61 See App. 641; 650.
26
report.”62 Because this issue was unpreserved, Senke must
show plain error.63 Under the plain error standard, we may
vacate and remand Senke’s sentence only if we find (1) an error
was committed; (2) the error was plain; and (3) the error
affected Senke’s substantial rights.
64
In interpreting Rule 32(i)(1)(A), we have declined to
create “an absolute requirement that the court personally ask
the defendant if he has had the opportunity to read the report
and discuss it with counsel.”65 Instead, we have “allowed for
a more functional fulfillment of the rule, requiring only that the
district court ‘somehow determine that the defendant has had
this opportunity,’” “before imposing sentence.”66
Here, the District Court did not verbally ask Senke if he
read and discussed the PSR with his attorneys. The question,
then, is whether the District Court could have independently
determined that information before sentencing.
The Government asserts that “it is clear from the record
that both [Comerford] and Senke had an opportunity to read
the PSR as both filed specific objections.”67 That is true.
Comerford submitted a sentencing memorandum to the District
62 Fed. R. Crim. P. 32(i)(1)(A).
63 United States v. Olano, 507 U.S. 725, 734 (1993).
64 Id. at 732-34.
65 United States v. Mays, 798 F.2d 78, 80 (3d Cir. 1986).
66 United States v. Stevens, 223 F.3d 239, 241 (3d Cir. 2000)
(quoting Mays, 798 F.2d at 80). At the time of Stevens, the
Rule 32(i)(1)(A) requirement was codified as Rule
32(c)(3)(A).
67 Gov’t Br. 33.
27
Court, wherein he successfully argued that the PSR improperly
enhanced Senke’s offense level. Separately, Senke submitted
his own objections, which were addressed in an addendum to
the PSR.
However, nowhere in the sentencing memorandum does
it state that Comerford and Senke discussed the PSR together.
Moreover, Comerford submitted his objection to the probation
officer before receiving Senke’s objections. At sentencing,
Comerford only mentioned the objection made in the
sentencing memorandum, and did not reference any of
Senke’s. While that may have been because Senke’s
objections lacked merit, we cannot conclude that Comerford’s
silence indicates he reviewed the objections or discussed them
with Senke. Nor does the District Court’s recitation of Senke’s
objections and the one made in the sentencing memorandum
indicate that it determined Senke had the opportunity to discuss
the PSR with counsel. Instead, these facts only confirm that
Senke and Comerford read the PSR, but they suggest nothing
about a meeting of the minds.
Finding plain error, we turn to the issue of Senke’s
substantial rights. For substantial rights to have been affected,
“the error must have been prejudicial,” in that it “affected the
outcome of the district court proceedings.”68
Senke asserts that if the District Court had asked if he
discussed the PSR with counsel, he could have challenged the
recommendation of certain special conditions of supervised
release, and the recommendation of the $10,000 special
assessment fee under the JVTA. These arguments are
68 Olano, 507 U.S. at 734.
28
unconvincing. Neither of these matters could have affected
Senke’s criminal history category, nor the applicable
Guidelines range.69 Moreover, Senke was sentenced to the
statutory mandatory minimum; thus “there is no reasonable
likelihood that the sentence would have been different,” had
the District Court verified a PSR discussion took place.70
Accordingly, Senke’s Rule 32(i)(1)(A) claim must fail.71
C. The Special Conditions of Supervised Release
Next, Senke takes issue with several special conditions
of supervised release imposed by the District Court. Because
this challenge was unpreserved, Senke must show plain error.72
Each special condition must be reasonably related in a
“tangible way,” to the defendant's crimes or something in his
history, and it must involve no greater deprivation of liberty
than is reasonably necessary to deter future crime, protect the
public, or rehabilitate the defendant.73 “This is not an
especially high standard.”74 But the sentencing court must set
forth factual findings to justify the special conditions.75 If the
69 See Stevens, 223 F.3d at 244.
70 Id.
71 We stress the importance and relative ease of satisfying a
Rule 32(i)(1)(A) verification on the record at sentencing. A
very simple colloquy between defendants and district courts
would remove all doubt.
72 See United States v. Pruden, 398 F.3d 241, 248 (3d Cir.
2005).
73 Id. at 248-49 (internal quotation marks and citation omitted).
74 Id. at 249.
75 United States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007).
29
court fails to do so, we may nevertheless affirm “if we can
ascertain any viable basis” for the condition.76
i. Conditions on Computer and Internet
Usage
Senke argues that the conditions relating to his internet
and computer usage are contradictory and more restrictive than
necessary. Specifically, he notes that Condition 11 instructs
that he “must not possess and/or use computers . . . or other
electronic communications or data storage devices or media.”77
Yet Conditions 12-15 require him to obtain permission from
his probation officer to use the internet, have monitoring
software installed on any computer he uses, and submit to
searches of his computers, electronic communications, and
data storage devices.78
The Government concedes that Conditions 11-15 are
contradictory and require further clarification by the District
Court. We agree. These conditions are indistinguishable from
the conditions we struck down in United States v. Holena.
79
There, we carefully laid out the considerations a sentencing
court must give when balancing public protection against
broad, untailored restrictions on a defendant’s liberty.80 We
76 Id. at 144 (internal quotation marks and citation omitted).
77 App. 13.
78 App. 13-14.
79 906 F.3d 288 (3d Cir. 2018).
80 Id. at 291-94 (“To gauge whether an internet or computer
restriction is more restrictive than necessary, we consider three
factors: the restriction’s length, its coverage, and ‘the
30
noted that “internet bans are ‘draconian,’” particularly in a
modern society, where one can hardly complete menial tasks
without using a computer or the internet.81 As such, the goal
of restricting internet and computer use for defendants like
Senke must be to keep them from preying on children. For the
reasons explained in Holena, there is no such tailoring here.
Conditions 11-15, as currently written, prevent Senke from
participating in all sorts of activities, while doing nothing to
further public safety.82
On remand, the District Court must “make findings to
support any restrictions it chooses to impose on [Senke’s]
internet and computer use.”83 Undoubtedly, there is a strong
need to protect the public, and the District Court may still find
it appropriate to limit Senke’s internet and computer use.84 But
any limitations must be supported by facts, tailored to Senke’s
conduct, and “aim to deter future crimes, protect the public, or
rehabilitate [Senke].”85
ii. Conditions on Contact with Minors
defendant’s underlying conduct.’” Id. at 292 (quoting United
States v. Heckman, 592 F.3d 400, 405 (3d Cir. 2010))).
81 Id. at 292 (quoting Heckman, 592 F.3d at 408).
82 See id. at 294-95 (noting that a complete ban on computer
and internet use raises First Amendment concerns because it
restricts an array of activity, without making the public safer).
83 Id. at 291.
84 Id. at 293 (“We recognize that the need to protect the public
is strongest in cases like this, when the defendant used the
internet to try to molest children.”).
85 Id.
31
Senke also contends that Conditions 6 and 7, regulating
his contact with minors, are contradictory. Condition 7 bans
Senke from going to or remaining at any place where children
“are likely to be.”86 Yet Condition 6 requires him to obtain
permission from the probation officer in order to have direct
contact with children.87 He also argues that Condition 7 is
overbroad and unnecessary in light of Condition 6, when the
record shows that he was not seeking out children and had no
prior sexual interest in children.
The Government responds that Condition 6 prohibits
“direct” contact with minors without prior permission from a
probation officer, while Condition 7 prohibits intentional travel
to and/or remaining at places where minors frequent and are
likely to congregate.
We agree with the Government’s reasoning; Conditions
6 and 7 are not contradictory or overbroad. As the Government
explains, Condition 6 requires Senke to receive permission
from a probation officer before having direct contact with a
minor, regardless of location. Condition 7 prevents him from
traveling to places where minors are likely to be, even if he
does not intend to have direct contact with any minors. For
additional clarity, Condition 7 provides examples on the types
of places it encompasses. These conditions are appropriately
tailored to Senke’s crime, and are not so contradictory or
overbroad that Senke “cannot tell what they forbid.”88
Senke also complains that Conditions 7 and 8 are
86 App. 13. 87 Id.
88 Holena, 906 F.3d at 291.
32
unconstitutionally vague. He argues that reasonable people
could disagree about whether children are “likely to be” at a
variety of places, and there is no guidance as to how he or his
probation officer should determine his “primary purpose” for
going to a particular location.89
We previously upheld an arguably stricter condition that
restricted any unsupervised contact with minors in a case
where the defendant was convicted solely of possessing child
pornography.90 In doing so, we determined that the prohibition
against unsupervised contact was not unconstitutionally vague
because it did not foreclose accidental contact.91 Similarly, the
Second and Fifth Circuits have routinely upheld special
conditions that banned defendants from areas where children
“frequent” or “congregate.”92 The same is true of provisions
89 App. 13.
90 United States v. Loy, 237 F.3d 251, 254 (3d Cir. 2001).
91 Id. at 269 (“At this point, it is well established that
associational conditions do not extend to casual or chance
meetings.”).
92 See United States v. Fields, 777 F.3d 799, 806 (5th Cir. 2015)
(upholding a condition that prohibited defendant from going to
places “where a minor or minors are known to frequent” and
defining those “places” to include schools and playgrounds,
but not locations such as grocery stores, places of worship,
transportation hubs, and most stores); United States v.
MacMillen, 544 F.3d 71, 73, 75-76 (2d Cir. 2008) (upholding
a condition prohibiting the defendant from being in “any” area
where children are “likely” to congregate because “[t]he
condition challenged here provides [defendant] with adequate
notice of what conduct is prohibited—namely, frequenting
places where children are likely to congregate.”); United States
33
that include anti-loitering language similar to that of Condition
8.93
Here, neither Conditions 7 nor 8 bar accidental contact
that could occur during ordinary activities in public places.
These conditions are tangibly related to Senke’s conviction,
where he attempted to entice a minor to meet him in a public
place for the purposes of sexual contact. Moreover, their
wording is not so vague that “men of common intelligence
must necessarily guess at [their] meaning and differ as to [their]
application.”94
iii. Conditions Relating to Testing
v. Johnson, 446 F.3d 272, 280-81 (2d Cir. 2006) (upholding a
provision of supervised release that prohibited the defendant
from being in “any” area where children are “likely” to
congregate); United States v. Paul, 274 F.3d 155, 165-67 n.13
(5th Cir. 2001) (denying a vagueness challenge to a condition
instructing defendant to avoid “places, establishments, and
areas frequented by minors,” finding that this direction may be
reasonably interpreted and enforced).
93 See United States v. Oliphant, 456 F. App’x 456, 458-59 (5th
Cir. 2012) (per curiam) (upholding against vagueness
challenge condition stating that defendant “shall not have
access to or loiter near school grounds”); United States v.
Burroughs, 613 F.3d 233, 246 n.3 (D.C. Cir. 2010) (upholding
against vagueness challenge condition barring defendant from
“loiter[ing] in any place where children congregate”).
94 United States v. Maloney, 513 F.3d 350, 357 (3d Cir. 2008).
34
Senke contends that Conditions 1 and 10 delegate
excessive authority to his probation officer by requiring him to
take an unlimited number of drug and polygraph tests.
District courts may not delegate to probation officers
the power to “decide the nature or extent” of supervised release
conditions.95 But we have held that “probation officers must
be allowed some discretion in dealing with their charges,” as
“courts cannot be expected to map out every detail of a
defendant’s supervised release.”96 In the context of mental
health intervention, we determined that if a defendant is
required to participate in intervention “only if directed to do so
by his probation officer,” then this is an impermissible
delegation of judicial authority.97
Here, the probation officer was instructed by the District
Court to subject Senke to drug and polygraph testing. While
the probation officer may decide the time, place and frequency
of such testing, the testing is not optional. Senke is required to
participate in order to comply with the District Court’s
conditions. Because the District Court has merely delegated to
the probation officer the details with respect to “selection and
schedule” of the testing, such delegation is proper.98
D. The JVTA Special Assessment Fee
95 Pruden, 398 F.3d at 250.
96 Id.
97 Id. at 250-51 (quoting United States v. Peterson, 248 F.3d
79, 85 (2d Cir. 2001)).
98 Id.
35
Lastly, Senke argues that the District Court erred by
imposing a $10,000 special assessment under the JVTA.99 He
contends that because the JVTA was enacted on May 29, 2015,
and he was charged with offenses committed between
September 2014 and February 2015, this assessment violates
the Ex Post Facto Clause. The Government concedes that the
fee imposition was plain error. We agree and will vacate the
fee.
Outcome: For the foregoing reasons, we will vacate the District
Court’s judgment as to its imposition of special Conditions 11-
15 regarding Senke’s internet and computer use and a special
assessment fee under the JVTA and remand for further
proceedings. We will otherwise affirm the District Court’s
judgment as to Senke’s conviction and sentence.
Plaintiff's Experts:
Defendant's Experts:
Comments: