UNITED STATES of America, Plaintiff-Appellee, v. Marcellus Aaron ELDER, Defendant-Appellant, 309 F.3d 519

AMENDED OPINION MICHAEL DALY HAWKINS, Circuit Judge. Appellant Maurice Elder (“Elder”) seeks review of his conviction and sentence on cocaine possession and distribution charges. With respect to his conviction, Elder argues that he was denied due process of law when the district court had lead defense counsel removed from the courtroom, especially given the nature of that removal. A careful examination of the record, however, reveals a persistent pattern of surly, disruptive and contemptuous behavior by a defense counsel with a history of antagonizing judges.

Over much of the trial and immediately prior to her- removal, counsel was repeatedly warned about yelling at the court and making sarcastic remarks. Elder argues that the sight of his lawyer being led off in handcuffs must have prejudiced the jury against him. The record is clear, however, that the district court did not order the handcuffing. When co-counsel for Elder indicated an unwillingness to proceed and asked that the jury be excused, the court complied and granted a one-hour recess.

Following the recess, lead counsel returned to the courtroom and the court effectively cleared the air by acknowledging that the objection she had made was factually correct and then allowed her to address the point at length. Counsel then apologized to the court and later to the jury, stating that while she may have been correct in her objection, “I was wrong to argue with the court.” At the conclusion of the evidence, the district court instructed the jury that they were not to consider the incident in their deliberations.

Although in almost all other circumstances we would hold that removing a defense attorney from the courtroom in handcuffs and later requiring her to apologize to the jury while the judge reprimanded her for her behavior is “so inherently prejudicial as to pose an unacceptable threat” to a fair trial, Maiden v. Bunnell, 35 F.3d 477, 482 (9th Cir.1994), in the unique circumstances of this case, we conclude that an extremely narrow, highly-fact-intensive exception to the general rule is required.

Given the extraordinary history of counsel’s insistence on repeatedly disrupting court proceedings not just in this case but others, plus the combined effect of the overwhelming evidence establishing Elder’s guilt, the nature of the specific curative instruction given to the jury to mitigate any prejudice resulting from counsel’s removal from the courtroom, and the fact that Elder had another attorney representing him as well who, as far as the jury was aware, complied with all court and ethical responsibilities and was not the subject of any reprimand, we are unable to conclude that, in the unique circumstances of this case, Elder’s due process rights were violated.

We also reject Elder’s claims of sentencing error. The district court did not err in applying a two-level enhancement for possession of a firearm in the commission of a drug offense when Elder failed to prove that it was “clearly improbable” that the weapon he possessed was connected to the offense. See United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir.1989). Further, because the record supports the conclusion that there were five or more participants in the conspiracy, there was no error in the finding that Elder occupied a leadership role.

And, because Elder’s enhanced sentence was not extremely disproportionate to his original sentence, there was no error in the application of a preponderance of the evidence standard to these findings. United States v. Johansson, 249 F.3d 848, 854-55 (9th Cir.2001). Finally, because Elder’s sentence was below the statutory maximum, there was no violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir.2000). AFFIRMED.

Publication is pursuant to Ninth Circuit Rule 36-2(g). . “In our collective 97 years in the legal profession, we have seldom seen such unprofessional, offensive and disruptive conduct by an attorney in a court of law.” People v. Chong, 76 Cal.App.4th 232, 90 Cal.Rptr.2d 198, 207 (1999).