Sixth Circuit: No Lesser-Included Simple Possession Instruction Absent Countervailing Evidence; Reaffirmation of Speedy Trial Act Dismissal-Without-Prejudice Factors and Valid Faretta Waiver

Introduction

In United States v. Eddie Lee Pope, No. 24-3118 (6th Cir. July 15, 2025) (not recommended for publication), the Sixth Circuit affirmed a conviction for possession of methamphetamine with intent to distribute. The panel—Judges Siler, Kethledge (author), and Bush—rejected five challenges raised by the defendant. The opinion touches multiple core criminal-procedure doctrines: the remedy for a Speedy Trial Act violation (with or without prejudice), the validity of a Sixth Amendment waiver of counsel, the legality of a traffic stop based on a lane-line incursion, sufficiency of the evidence as to possession, and entitlement to a lesser-included-offense instruction on simple possession.

The decision is most notable for its clear application of United States v. Jordan, 100 F.4th 714 (6th Cir. 2024), holding that a defendant is not entitled to a lesser-included simple-possession instruction when all the evidence points toward distribution and the defendant offers no countervailing evidence of personal use. It also reinforces long-settled Sixth Circuit guidance that drug offenses are categorically serious under the Speedy Trial Act and that prejudice to the defense is a relevant consideration when deciding whether to dismiss with prejudice.

Summary of the Opinion

Speedy Trial Act remedy: The district court did not abuse its discretion by dismissing the initial indictment without prejudice. Drug offenses are categorically serious, the non-excludable delay was not attributable to the government, and the defendant showed no actual prejudice. Considering prejudice is proper under the “administration of justice” factor. (18 U.S.C. § 3162(a)(2); United States v. Moss; United States v. Robinson; United States v. Taylor.)
Waiver of counsel: Pope’s Sixth Amendment waiver was knowing and voluntary. The district court repeatedly conducted robust Faretta inquiries substantially tracking the Bench Book model, warned him against self-representation, and confirmed his understanding. (United States v. Johnson; United States v. Heard; United States v. Bankston.)
Traffic stop: The stop was lawful. An officer may stop a vehicle for any observed traffic violation; here, the district court did not clearly err in finding Pope’s car crossed the fog line, supported by testimony and dash-cam footage. (Whren v. United States; Ohio Rev. Code § 4511.33; United States v. Gilbert.)
Sufficiency of evidence: A rational jury could find Pope possessed the methamphetamine. Minutes after the trooper felt a bag with a gravel-like substance in Pope’s groin area, officers recovered a similar bag along Pope’s flight path. (Jackson v. Virginia; United States v. Burris.)
Lesser-included instruction: The district court properly denied a simple possession (§ 844) instruction. The undisputed quantity—446 grams, over 2,000 user doses—plus a scale with residue, and Pope’s own testimony that he used only marijuana left no countervailing evidence of personal use. (United States v. Jordan.)

Analysis

Precedents Cited and Their Role

United States v. Moss, 217 F.3d 426 (6th Cir. 2000): The court relied on Moss’s categorical classification of drug crimes as “serious” for Speedy Trial Act remedy analysis. This characterization weighed strongly against dismissal with prejudice.
United States v. Robinson, 389 F.3d 582 (6th Cir. 2004): Robinson recognizes that prejudice to the defendant’s ability to mount a defense is germane to the “administration of justice” factor under § 3162(a)(2), even if the statute does not list “prejudice” expressly. The panel embraced that framework.
United States v. Taylor, 487 U.S. 326 (1988): Taylor instructs courts to weigh the § 3162(a)(2) factors holistically and confirms dismissal without prejudice may be appropriate where the violation does not impair the defense and the offense is serious. The panel’s analysis follows Taylor’s guidance.
United States v. Johnson, 24 F.4th 590 (6th Cir. 2022): Establishes de novo review for the validity of a waiver of counsel. The panel applied this standard to uphold Pope’s waiver.
United States v. Heard, 762 F.3d 538 (6th Cir. 2014): Endorses using the Bench Book model colloquy for Faretta inquiries and delineates the required topics—nature of charges, penalties, the perils of self-representation. The district court’s repeated colloquies satisfied Heard.
United States v. Bankston, 820 F.3d 215 (6th Cir. 2016): Emphasizes that judges should affirmatively warn defendants not to represent themselves. The district court expressly admonished Pope that going pro se would be a “bad move.”
Whren v. United States, 517 U.S. 806 (1996): An officer’s subjective motives are irrelevant to a traffic stop; any observed violation suffices. The panel applied Whren to uphold the stop once the fog-line incursion was found as a fact.
Ohio Rev. Code § 4511.33: Crossing the lane edge constitutes a traffic violation under Ohio law; this legal premise was undisputed on appeal and supplied the predicate for probable cause under Whren.
United States v. Gilbert, 952 F.3d 759 (6th Cir. 2020): Confirms clear-error review for the district court’s factual finding that a traffic violation occurred. The district court’s reliance on testimony and dash-cam video cleared that deferential bar.
Jackson v. Virginia, 443 U.S. 307 (1979): Sets the sufficiency-of-the-evidence standard—whether any rational juror could find the elements beyond a reasonable doubt when viewing the evidence favorably to the prosecution. The panel applied Jackson to infer possession from tactile observation and the recovered bag.
United States v. Burris, 999 F.3d 973 (6th Cir. 2021): Approves reliance on circumstantial evidence to establish possession. Finding the drugs along the defendant’s flight path shortly after a pat-down is the kind of circumstantial link Burris affirms.
United States v. Jordan, 100 F.4th 714 (6th Cir. 2024): Articulates that a lesser-included simple possession instruction is unwarranted absent “countervailing evidence” from which a jury could reject intent to distribute. The panel’s application to 446 grams and trafficking paraphernalia underscores Jordan’s force.

Legal Reasoning and Application

1) Speedy Trial Act Remedy. The district court found 95 non-excludable days elapsed, mandating dismissal under § 3162(a)(2). The question was remedy: with or without prejudice. The court weighed the statutory factors—seriousness of the offense; facts and circumstances leading to dismissal; and the impact of reprosecution on the Act’s administration and justice. It concluded:

Seriousness: Binding Sixth Circuit precedent “categorically labeled drug offenses as serious” (Moss), favoring without-prejudice dismissal.
Facts/circumstances: The non-excludable days were “not chargeable to the government,” suggesting the violation did not evince government bad faith or systemic neglect.
Administration of justice: Pope showed no actual prejudice impairing his defense; under Robinson and Taylor, lack of prejudice cuts against the drastic remedy of dismissal with prejudice.

Reviewing for abuse of discretion, the panel held this balancing was sound. Notably, the court rejected Pope’s contention that “prejudice” is an impermissible factor—reiterating that it is subsumed within the statutory “administration of justice” consideration.

2) Knowing Waiver of Counsel. The Sixth Amendment permits self-representation if the waiver of counsel is knowing, voluntary, and intelligent. The district court, on three separate occasions (preliminary hearing, arraignment, pretrial), warned Pope of the risks, discussed the nature and seriousness of the charges and potential penalties, explained the advantages of counsel, and told him it would be a “bad move” to proceed pro se. Under de novo review (Johnson), and against the benchmarks in Heard and Bankston, the panel found the colloquies sufficient and the waiver valid.

3) Legality of the Traffic Stop. Under Whren, any traffic infraction justifies a stop. The parties agreed that crossing the fog line violates Ohio Rev. Code § 4511.33. The only live issue was factual: did Pope cross the line? Applying clear-error review (Gilbert), the panel deferred to the district court’s finding based on Trooper Noblet’s testimony and dash-camera footage. Because a violation occurred, the stop was lawful regardless of the officer’s subjective suspicions.

4) Sufficiency of the Evidence—Possession. The government had to prove possession of the methamphetamine. The jury heard that Trooper Noblet felt, during a pat-down, a bag with a hard, gravel-like substance near Pope’s groin; minutes later, after Pope fled, officers found a similar bag containing a white substance along his flight path. Viewing this evidence in the light most favorable to the government (Jackson), a rational juror could infer that Pope possessed the recovered bag (Burris).

5) Denial of Lesser-Included Simple Possession Instruction. Pope sought a § 844 instruction. Under Jordan, a defendant is entitled to a lesser-included instruction only where there is “countervailing evidence” that could allow a rational jury to find the lesser offense and acquit on the greater—in drug cases, evidence consistent with personal use and inconsistent with intent to distribute. Here, the government’s proof included:

Quantity: 446 grams of methamphetamine—more than 2,000 typical user doses.
Paraphernalia: A digital scale coated with white residue.
Defendant’s own testimony: He used only marijuana, not methamphetamine.

With no evidence suggesting personal use of methamphetamine—and strong evidence of distribution—the district court correctly refused the instruction. The panel’s application of Jordan is straightforward and emphatic: “All the evidence” pointed to distribution; no jury could rationally find simple possession on this record.

Impact and Practical Implications

Lesser-included instructions in drug prosecutions after Jordan: This opinion operationalizes Jordan’s “countervailing evidence” requirement. Where the record shows a substantial quantity and distribution tools, and the defendant offers no credible personal-use narrative (or, as here, disclaims using the charged drug), trial courts in the Sixth Circuit can deny a simple-possession instruction with confidence.
Speedy Trial Act remedies: The opinion reinforces that dismissal without prejudice remains the presumptive remedy when (a) the offense is serious, (b) the government is not primarily at fault for the delay, and (c) the defendant cannot show actual prejudice to the defense. Defense counsel should build a specific prejudice record if seeking dismissal with prejudice.
Faretta colloquies: Repetition and clarity matter. The district court’s triple admonitions and explicit discouragement of self-representation created a robust record. Trial judges should continue to track the Bench Book, document the defendant’s acknowledgments, and consider renewing the warnings at key stages.
Traffic stops based on lane deviations: A single, observed lane-edge crossing, corroborated by dash-cam footage, suffices for probable cause under Whren in Ohio. Defense challenges will hinge on undermining the factual finding—an uphill battle under clear-error review.
Circumstantial evidence of possession: The combination of tactile detection during a pat-down, immediate flight, and recovery of contraband along the flight path provides a compelling circumstantial chain under Jackson and Burris.
Precedential status: Although not recommended for publication and thus nonprecedential, the opinion is persuasive authority within the Sixth Circuit. Its synthesis of Jordan in the lesser-included context, and its clear guidance on STA remedies and Faretta waivers, will likely be cited in district courts as persuasive reasoning.

Complex Concepts Simplified

Speedy Trial Act (STA): Federal law generally requires trial to begin within 70 days of indictment or first appearance. If violated, the case must be dismissed—either with prejudice (bar to reprosecution) or without prejudice (government may reindict). Courts decide the remedy by weighing statutory factors, including seriousness of the offense, reasons for the delay, and effects on justice. Actual prejudice to the defense is a key consideration under the “administration of justice” factor.
Dismissal “with” vs. “without” prejudice: “With prejudice” ends the prosecution permanently; “without prejudice” allows the government to refile. Serious offenses and minimal prejudice to the defense tend to favor “without prejudice.”
Waiver of counsel (Faretta right): A defendant may represent himself if he knowingly and voluntarily waives counsel after being warned of the risks. Courts use a structured colloquy (from the Bench Book) to verify understanding of charges, penalties, defenses, and the complexities of trial practice.
Traffic stop legality: An officer needs probable cause to stop a vehicle for a traffic violation. Any observed violation, even minor (like briefly crossing the fog line), suffices under Whren; the officer’s subjective motives do not matter.
Standards of review:
- Abuse of discretion: Deferential review of the trial court’s remedy choices (e.g., STA dismissal with or without prejudice).
- De novo: No deference on legal questions like validity of a waiver of counsel.
- Clear error: Deferential review of factual findings (e.g., whether a lane violation occurred).
- Jackson sufficiency standard: The evidence is viewed in the light most favorable to the prosecution; reversal occurs only if no rational juror could find guilt beyond a reasonable doubt.
Possession: Can be proven by direct or circumstantial evidence. Here, tactile detection plus immediate discovery of drugs along the defendant’s flight path supported an inference of actual possession.
Lesser-included offense instruction: A defendant is entitled to such an instruction only if the evidence would allow a rational jury to acquit of the greater charge and convict of the lesser. In drug cases, Jordan requires “countervailing evidence” that supports personal use rather than distribution—e.g., small quantity, lack of trafficking tools, or credible testimony of use. Large quantities and distribution paraphernalia typically defeat entitlement to a simple-possession instruction.

Conclusion

United States v. Pope is a comprehensive reaffirmation of core criminal procedure principles in the Sixth Circuit. It fortifies the Speedy Trial Act framework favoring dismissal without prejudice in serious drug cases absent demonstrated prejudice to the defense; it exemplifies best practices for ensuring a valid waiver of counsel through repeated, explicit warnings; it confirms that a brief fog-line crossing is a sufficient basis for a lawful stop; it endorses straightforward circumstantial proof of possession under Jackson; and, most significantly for trial practice, it applies Jordan to deny a lesser-included simple-possession instruction where all evidence points to distribution and the defendant offers no countervailing evidence of personal use.

The key takeaways are pragmatic: build a detailed prejudice record when seeking dismissal with prejudice; conduct and memorialize robust Faretta colloquies; recognize that video and officer testimony will often sustain traffic stops under deferential review; and, for lesser-included instructions in drug cases, present concrete evidence of personal use or expect the instruction to be denied when quantity and paraphernalia strongly indicate distribution. Although unpublished, Pope provides clear, persuasive guidance likely to shape district court rulings across the circuit.