Pro se representation; Faretta v. California; McKaskle v Wiggins; Hybrid representation with standby counsel; Whether the district court violated defendant’s Sixth Amendment rights by excluding him from the sidebar conferences; Standby counsel’s participation at sidebar conferences; Whether defendant knowingly & voluntarily waived his right to counsel, Wilson v Hurt; Whether the indictment was duplicitous; Alleged character evidence; Admission of text messages; The co-conspirator hearsay exception (FRE 801(d)(2)(E)); United States v Enright; Lay opinion testimony; FRE 701; Sentencing; Application of the “leadership” enhancement (USSG §3B1.1(c))

[This appeal was from the WD-MI.] For the first time in this circuit, the court addressed the issue of standby counsel’s participation at sidebar conferences, and held that pro se defendant-McNoriell’s right to self-representation was not violated. He was charged with conspiracy to distribute and possess with intent to distribute heroin and 500 grams or more of cocaine, and possession with intent to distribute 500 grams or more of cocaine. He chose to represent himself at trial. After two Faretta colloquies, he proceeded with the aid of standby counsel (G). They both actively participated in the trial—a “hybrid representation.” During trial, the district court had several sidebar conferences with G “acting on behalf of McNoriell (as agreed upon in the pretrial conference)[.]” The jury convicted McNoriell, and the district court sentenced him to concurrent prison terms of 110 months on each count. McNoriell first argued that it violated his Sixth Amendment rights by excluding him from the sidebar conferences. He conceded that by “invoking his right to self-representation, he necessarily waived the right to counsel.” The court noted that the “district court allowed McNoriell to engage in a hybrid representation arrangement that closely resembled a co-counsel relationship.” And McNoriell agreed to G’s “participation at sidebar conferences, including during voir dire, and failed to object to this participation during trial.” Pursuant to McKaskle, “when a pro se defendant agrees to ‘any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.’” The court held that “McNoriell made the knowing decision to represent himself, and he also clearly informed the court that [G] would convey McNoriell’s views and objections at sidebar.” Under the circumstances, standby counsel’s participation at sidebar conferences did not violate his right to self-representation. The hybrid arrangement did not “undermine McNoriell’s decision to represent himself.” The court cautioned district courts to consider the potential issues arising from permitting a hybrid representation. It rejected McNoriell’s duplicitous indictment claim, and upheld the district court’s application of a two-level leadership enhancement in sentencing him, as well as its challenged evidentiary rulings. Affirmed.