APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. William E. Smith, U.S. District Judge]
The opinion of the court was delivered by: Lipez, Circuit Judge.
Before Howard, Ripple,*fn1 and Lipez, Circuit Judges.
Following a three-day trial, a jury convicted defendant-appellant Roldy Francois ("Francois") on four counts of possessing firearms as a convicted felon, one count of possessing a firearm with an obliterated serial number, and twelve counts stemming from his use of a stolen identity to purchase those firearms. Following his conviction, the district court sentenced Francois to a term of 164 months. Francois appeals, asserting that the district court (1) abused its discretion when it denied his motion for a third court-appointed attorney; (2) failed to adequately warn him about the consequences of proceeding pro se; (3) erred in instructing the jury on the use of flight evidence; (4) abused its discretion in failing to conduct an evidentiary hearing on his motion to suppress. Francois also claims that his sentences on counts 10-13 exceed the statutory maximum.
For the reasons explained below, we affirm Francois's conviction. The government agrees, correctly, that the sentences on counts 10-13 do exceed the statutory maximum. Hence, we remand for resentencing.
In reviewing Francois's conviction, we consider the facts established at trial in the light most favorable to the jury's verdict. United States v. Gomez-Rosario, 418 F.3d 90, 93 (1st Cir. 2005).
On March 27, 2009, a young government employee named Efrain Baez reported that a briefcase containing his social security card and birth certificate had been stolen. For more than a year, Baez knew nothing about the fate of his stolen documents. Unbeknownst to Baez, less than a month after his documents were stolen, his identity would be appropriated by Roldy Francois, a convicted felon living in Rhode Island.
On April 23, 2009, the state of Florida issued Francois a driver's license in Baez's name but bearing a picture of Francois. Francois proceeded to use Baez's identity on at least four occasions to purchase guns from Dave's Guns, a firearms dealer in Rhode Island. When purchasing each of these firearms, Francois identified himself as "Efrain Baez" on ATF Form 4473 and certified that he had never been convicted of a felony.*fn2 Evidence in the record indicates that Francois also identified himself as Efrain Baez when he was cited for speeding, that he used Baez's identity at a firing range, and that he assumed Baez's identity in some social situations.
Francois continued to use Baez's identity with impunity until early 2010, when an ill-fated attempt to dupe the police put an end to his charade. In February 2010, two of the guns Francois had illegally purchased at Dave's Guns were stolen from his car. On February 16, 2010, Francois went to the Providence Police Department accompanied by his girlfriend and his private attorney to report the theft. When he arrived at the station, Francois identified himself as "Efrain Baez."
Unfortunately for Francois, the detective assigned to take his report had encountered Francois in the course of Francois's previous criminal activities. Detective Maurice Green ("Detective Green") testified at trial that he recognized Francois "as soon as he walked in the door," but could not immediately place him. Green also thought it was "odd" that someone would bring an attorney with him to the station to report a crime, and his suspicions were further aroused because "there was something very wrong with [Francois's] entire story." Nevertheless, Green took Francois's report, and Francois left the station without incident.
Convinced that he had encountered Francois before, Detective Green reviewed his old case files and discovered that the man who had identified himself as Efrain Baez was, in fact, Roldy Francois. With this information, Detective Green immediately contacted Immigration and Customs Enforcement ("ICE") and the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF").
Law enforcement agents initially attempted to apprehend Francois at 148 Hudson Street in Providence, the address Francois had given Detective Green during their February 16 interview. Upon arrival at that address, however, the police were told by Francois's girlfriend that he had moved and left no forwarding address. After this initial setback, law enforcement officers were unable to locate Francois for several weeks until they received a tip that Francois was residing at 44 Taylor Street in Providence.
Early in the morning of March 16, 2010, a team of fully armed and uniformed Providence police officers, ATF agents, and United States Marshals approached the three-story apartment building at 44 Taylor Street. The Marshals knocked on the exterior door, identified themselves as law enforcement officers, and told the residents who answered that they were there to arrest Francois. When Deputy Officer Brian McDonald ("Officer McDonald") showed the residents a photograph of Francois, one resident pointed his finger toward the ceiling and mouthed the word "up."
Taking this to mean Francois was upstairs, Officer McDonald proceeded to the third floor, where he observed an opening in the ceiling, which revealed a small, unfinished attic. Suspecting that Francois was hiding in the attic, Officer McDonald identified himself as a U.S. Marshal and announced that he had a warrant for the arrest of Roldy Francois, also known as Efrain Baez. In response, Francois moved toward the opening, allowing Officer McDonald to confirm visually that the man in the attic was indeed Francois. Officer McDonald observed Francois lying prone in the attic clutching a dark, semi-automatic handgun to his chest. At that point, Francois announced "that he was not going to jail, that he was in possession of a gun and no attempts should be made to remove him from the attic."
Officer McDonald quickly alerted his fellow law enforcement agents that Francios was armed, and called for a back-up Special Weapons and Tactics ("SWAT") team. A tense, six-hour stand-off between Francois and law enforcement ensued. Several times during the stand-off, Francois threatened to shoot either one of the officers or himself. Finally, late in the afternoon, Francois surrendered peacefully and was taken into custody.
A federal grand jury returned a seventeen-count indictment, charging Francois with four counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), one count of being in possession of a firearm with an obliterated serial number in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B), four counts of making false statements in the purchase of firearms in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2), four counts of possession of an identity document with intent to defraud the United States in violation of 18 U.S.C. §§ 1028(a)(4) and (b)(1), and four counts of using an identification document with intent to defraud the United States in violation of 18 U.S.C. §§ 1028A(a)(1).
From the outset, Francois's relationships with his court appointed attorneys were acrimonious. The court initially appointed Attorney Mary June Ciresi ("Ciresi") to represent Francois, but relations between the two deteriorated quickly. After only a few weeks of representation, Francois filed a complaint against Ciresi with the disciplinary committee of the Rhode Island bar, and Ciresi moved to withdraw. After a hearing, the district court granted the motion to withdraw, and appointed Francois a second attorney, William Dimitri ("Dimitri").
Equally unimpressed with Dimitri, Francois asked the court in August to appoint him yet a third attorney. At the hearing on his motion for new appointed counsel, Francois stated that he and Dimitri were having "a problem of communication." Francois explained further that "[t]his is my first time in the federal system. I'm not quite understanding properly the whole scenario of the ...