author: BOGGS, Circuit Judge. KAREN NELSON MOORE, Circuit Judge,

text:
    UNITED STATES of America EX REL. Leatra HARPER, Steven Jansto, and Leslie Harper, Relators-Appellants, v. MUSKINGUM WATERSHED CONSERVANCY DISTRICT, Defendant-Appellee.
    No. 15-4406
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: November 21, 2016

      ON BRIEF: Thomas W. Connors, BLACK, MCCUSKEY, SOUERS & AR-BAUGH, Canton, Ohio, Warner Menden-hall, Akron, Ohio, for Appellants. Peter D. Welin, O. Judson Scheaf III, MCDONALD HOPKINS LLC, Columbus, Ohio, for Ap-pellee.
    Before: GUY, BOGGS, and MOORE, Circuit Judges.
   BOGGS, J., delivered the opinion of the court in which GUY, J., joined. MOORE, J. (pp. 440-41), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

In 1949, the United States deeded a large parcel of land in Ohio to the Muskin-gum Watershed Conservancy District (“MWCD”), a state entity responsible for controlling flooding in eastern Ohio. The deed provided that the land would revert to the United States if MWCD alienated or attempted to alienate it, or if MWCD stopped using the land for recreation, conservation, or reservoir-development purposes. MWCD subsequently sold rights to conduct hydraulic fracturing (“fracking”) operations on the land. Three Ohio residents opposed to fracking discovered the deed restrictions and, operating on the theory that MWCD’s sale of fracking rights triggered the reversion clause in the deed, filed an action against MWCD under the False Claims Act, alleging that MWCD was knowingly withholding United States property from the federal government. The district court granted MWCD’s motion to dismiss. The relators appealed. For the reasons given below, we affirm the judgment of the district court.

I

The False Claims Act (“FCA”),- 31 U.S.C. § 3729, imposes civil liability on any person who fraudulently—or, under certain circumstances, knowingly—deprives the United States of property. Id. § 3729(a)(1). As the Act’s name suggests, liability under the Act often arises for the submission of false claims to the government. Id. § 3729(a)(l)(A)-(B); United States ex rel. Matheny v. Medco Health Sols., Inc., 671 F.3d 1217, 1222 (11th Cir. 2012). But two of the Act’s provisions also penalize the improper retention of government property: First, the “reverse-false-claim” provision of the FCA provides for fines and treble damages against anyone who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G), (a)(2). Second, under the FCA’s “conversion” provision, those same penalties also apply to anyone who “has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered,.less than all of that money or property.” Id. § 3729(a)(1)(D).

In order to promote enforcement of the FCA, Congress created a qui tam provision, under which whistleblowers—called “relators”—may bring civil actions on behalf of the government for alleged FCA violations. Id. § 3730(b); Walburn v. Lockheed Martin Corp., 431 F.3d 966, 970 (6th Cir. 2005). If a relator is successful in recovering money for the government, she may retain up to twenty-five percent of the proceeds, as well as reasonable expenses, attorney’s fees, and costs. 31 U.S.C. § 3730(d)(1). However, Congress was aware that- the qui tam provision could encourage “opportunistic plaintiffs” to bring “parasitic lawsuits whereby would-be relators merely feed off a previous disclosure of fraud.” Walbum, 431 F.3d at 970. In an effort to stop such “opportunistic suits, on the one hand, and encourage citizens to act as whistleblowers, on the other,” United States ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227, 233 (3d Cir. 1998), Congress placed a number of limitations on qui tam actions under the FCA, among which is the public-disclosure bar, a requirement that courts “shall dismiss an[y] [qui tam] action or claim” under the FCA if:

substantially the same allegations or transactions as. alleged in the action or claim were publicly disclosed—
(i) in a Federal criminal,' civil, or administrative hearing in which the Government or its agent is a party;
(ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or
(iii) from the news media;
unless the ... person bringing the action .is an original source of the information.

31 U.S.C. § 3730(e)(4)(A).

This qui tam action arises under the FCA’s reverse-false-claim and conversion provisions. In 1933, the State of Ohio organized the Muskingum Watershed Conservancy District and empowered it to control flooding in Ohio’s Muskingum River Watershed. Sixteen years later, the federal government granted MWCD several large parcels of land in central and southeastern Ohio. The deed to the land provided that if MWCD “shall cease using said lands” for recreation, conservation, and reservoir development, or if MWCD “alienate[s] or attempt[s] to alienate any part or parts thereof, the title to said lands shall revert to and revest in the United States.”

Five years ago, MWCD began negotiating several lease agreements to grant private firms the right to develop subsurface oil and gas reserves on the land that it received from the United States in 1949. MWCD issued' several press releases and held public hearings about the proposed leases, which local newspapers covered extensively. MWCD also posted the lease documents to its website, and ultimately executed several leases between 2011 and 2014.

Relators Leatra Harper, Leslie Harper, and Steven Jansto, who opposed MWCD’s plans to allow fracking in the Muskingum River Watershed, discovered the restrictions in MWCD’s deed. Reasoning that MWCD’s efforts to lease fracking rights represented an “attempt to alienate” the land that triggered the reverter clause in the deed or, in the alternative, that the land was no longer being used for “recreation, conservation, and reservoir development” as the deed required, the relators concluded that MWCD was improperly in possession of United States property and filed a suit on behalf of the United States under the FCA’s reverse-false-claim and conversion provisions.

After considering whether to involve itself in the action, the United States declined to intervene. The relators' then amended their complaint, and MWCD moved to dismiss. In addition to filing a motion in opposition, the relators moved the court for leave to amend their complaint for a second time “to add allegations relevant to issues raised by [MWCD] in [its] motion to dismiss.” The relators attached a proposed third complaint that they hoped to file if granted leave. ■

The district court denied the relators’ motion for leave to amend their complaint as futile and granted MWCD’s motion to dismiss. The district court took judicial notice of local media coverage of the MWCD leases, as well as MWCD’s own press releases on the subject, and concluded that the relators’ action was barred by the FCA’s public-disclosure provision. The district court explained that “[t]here can be no doubt that the pivotal allegations in the [proposed amended complaint] are substantially the same as the factual underpinnings of the news stories and press releases” and, because the relators did not allege facts showing that they were original sources of the information, they could not maintain ■ an • FCA claim based on MWCD’s leases.

The district court went on to conclude that “[e]ven if relators were not barred from bringing a qui tam [action] by prior public disclosure], their claims would not survive MWCD’s Rule 12(b)(6) attack.” After holding that Federal Rule of Civil Procedure 9(b), which requires complainants to plead fraud with “particularity,” applied to the relators’ claims, the district court determined that the relators could not maintain a claim under the FCA’s reverse-false-claim provision. The court explained that the relators had not shown that MWCD had taken any action to “avoid” an obligation to the United States, or that it had done so “knowingly.” “At most,” the district court concluded, the complaint “allege[s] a breach of the [d]eed, and it is well settled that ‘a mere breach of contract does not give rise to liability under the [FCA].’ ” United States ex rel. Harper v. Muskingum Watershed Conservancy Dist., 2015 WL 7575937, at *3 (N.D. Ohio Nov. 25, 2015) (quoting United States ex rel. Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 824 (7th Cir. 2011)).

Because the relators’ conversion claim “rel[ied] on the same allegations that MWCD violated the terms of the [d]eed to suggest that [MWCD] is now in possession of government property,” the district court dismissed the relators’ complaint in its entirety. The court concluded that because the relators’ proposed amended complaint did nothing to address the deficiencies the court had found, “it would be futile to permit any further amendment of the pleadings.” This appeal followed.

IT

Before addressing the merits of the rela-tors’ appeal, this court must first establish the appropriate standard of review. Prior to 2010, the FCA’s public-disclosure bar provided that “[n]o court shall have jurisdiction over an action ... based upon ... public disclosure.” 31 U.S.C. § 3730(e)(4)(A) (2006). This explicit reference to jurisdiction led courts to treat the public-disclosure bar as jurisdictional. See Rockwell Int’l Corp. v. United States, 549 U.S. 457, 460, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007). But in 2010, Congress amended the FCA’s public-disclosure provision and removed the jurisdictional language, replacing it with a requirement that a court “shall dismiss [any] action or claim” subject to the bar. 31 U.S.C. § 3730(e)(4)(A). Uncertain of whether the amended public-disclosure bar continued to deprive federal courts of jurisdiction, MWCD moved to dismiss this action both for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Citing conflicting case law from other federal courts, the district court analyzed the motion to dismiss under both provisions.

While this appeal was pending, the Sixth ■ Circuit ruled that in light of Congress’s 2010 amendment to the FCA, “[t]he public disclosure bar is no longer jurisdictional” and instead may be pleaded as an affirmative defense. United States ex rel. Advocates for Basic Legal Equal, Inc. v. U.S. Bank, N.A., 816 F.3d 428, 433 (6th Cir. 2016). For this reason, the standard applicable to Rule 12(b)(6) motions governs here. Under that standard, a plaintiffs complaint must allege facts that “ ‘state a claim to relief that is plausible on its face’ and that, if accepted as true, are sufficient to ‘raise a right to relief above the speculative level.’ ” Wesley v. Campbell, 779 F.3d 421, 427 (6th Cir. 2015) (quoting Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012)). However, courts need not accept “conclusory allegations or legal conclusions masquerading as factual allegations.” D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014) (quoting Terry v. Tyson Farms, Inc., 604 F.3d 272, 275-76 (6th Cir. 2010)). On appeal, this court reviews de novo the district court’s decision to grant a defendant’s motion to dismiss. Laborers’ Local 265 Pension Fund v. iShares Tr., 769 F.3d 399, 403 (6th Cir. 2014). This court may affirm on any grounds' supported by the record, even those not relied on by the district court. Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002).

Ill

On appeal, the relators challenge the district court’s determination that they failed to state claims under the FCA’s reverse-false-claim and conversion provisions. Appellant Br. 23, 34. In doing so, they also challenge the district court’s conclusions that the public-disclosure bar and Rule 9(b)’s heightened pleading requirements apply to their FCA claims. Id. at 9-10, 12, 16, 20. This court need not address the relators’ arguments concerning the public-disclosure bar or the applicability of Rule 9(b): Because the relators have failed to state facts from which MWCD’s awareness of the alleged FCA violations may be inferred even under the more liberal pleading standard set forth in Federal Rule of Civil Procedure 8(a), see Ashcroft v. Iqbal, 556 U.S. 662, 686-87, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that nothing in Rule 9 gives a plaintiff “license to evade the less rigid—though still operative—strictures of Rule 8”), and because such awareness is a requisite element of the two FCA claims before the court, the relators have failed to state a claim for relief irrespective of whether the public-disclosure bar or Rule 9(b) apply here.

A

The relators first argue that MWCD violated the reverse-false-claim provision of the FCA. As mentioned above, this provision imposes civil liability on anyone who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G). Nowhere in the relators’ complaint or proposed amended complaint do they allege that MWCD concealed an obligation to transmit property to the United States. Accordingly, the relators’ complaint can only survive MWCD’s motion to dismiss if they have shown that MWCD (1) had “an obligation to ... transmit ... property” to the United States; (2) “improperly avoid[ed]” this obligation; and (3) did so “knowingly.” Ibid. (emphasis added). Although there is little established case law, given that Congress only recently amended the reverse-false-claim provision, the term “knowingly” must be interpreted to refer to a defendant’s awareness of both an obligation to the United States and his violation of that obligation. Because the relators have not pleaded facts that show such awareness, the district court properly dismissed their “reverse” false claim.

Before 2009, the reverse-false-claim provision of the FCA imposed civil liability on those who “knowingly mak[e], us[e], or caus[e] to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(7) (2006). The provision’s reference to the “knowin[g]” use of a “false record or statement” made clear that only those defendants who knowingly perpetrated fraud against the government could be held liable. See United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Grp., Inc., 400 F.3d 428, 443 (6th Cir. 2005). In 2009, Congress passed the Fraud Enforcement and Recovery Act (“FERA”), Pub. L. No. 111-21, 123 Stat. 1617 (2009), which omitted the requirement that a defendant “mak[e], us[e], or caus[e] to be made or used, a false record or statement” from the relevant part of the reverse-false-claim provision. Under the current version of the FCA, anyone who “knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government” is civilly liable. 31 U.S.C. § 3729(a)(1)(G).

Although none of our sister circuits have applied 31 U.S.C. § 3729(a)(l)(G)’s new scienter requirement, the requirement should be interpreted to apply to both the existence of a relevant obligation and the defendant’s own avoidance of that obligation. “In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.” Flores-Figueroa v. United States, 556 U.S. 646, 650, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). If, for example, “we say that someone knowingly ate a sandwich with cheese, we normally assume that the person knew both that he was eating a sandwich and that it contained cheese.” Id. at 651, 129 S.Ct. 1886. That same principle would suggest that, to most readers, the phrase “Smith knowingly avoided an obligation to the United States,” would mean that Smith knew that he had an obligation to the United States and knew that he was avoiding the obligation.

Though in apparent agreement with this premise, the relators argue that a defendant acts “knowingly” when he has notice of a legal obligation, even if the defendant believes that the obligation does not apply under the circumstances. Appellant Br. 28-29. But the FCA requires plaintiffs to show far more. The Act defines the term “knowingly” as follows:

(1) [T]he terms “knowing” and “knowingly”—
(A) mean that a person, with respect to information—
(i) has actual knowledge of the information;
(ii) acts in deliberate ignorance of the truth or falsity of the information; or-
(iii) acts in reckless disregard of the truth or falsity of the information ....

31 U.S.C. § 3729(b). Accordingly, unless the circumstances of a case show that a defendant knows of, or “acts in deliberate ignorance” or “reckless disregard” of, the fact that he is involved in conduct that violates a legal obligation to the United States, the defendant cannot be held liable under the FCA

Any other interpretation would make “the punitive treble damages and penalties afforded by civil FCA ■ actions -.. interchangeable with remedies for ordinary breaches” of contract or property-law obligations. United States v. Southland Mgmt. Corp., 326 F.3d 669, 684 (5th Cir. 2003). Assume, for example, a party who has notice of a legal obligation to return park land to the government if she stops using the property for “public-recreation purposes.” Under the relators’ reading of the FCA’s scienter requirement, if the.party constructs a theme park on the land with the reasonable but ultimately mistaken belief that such use comports with the government’s use restriction, she would be liable under the FCA. But the FCA is aimed at stopping fraud against the United States and does not create “a vehicle to police technical compliance with” federal obligations. United States ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518, 531 (6th Cir. 2012); see also United States v. Sci. Applications Int’l Corp., 626 F.3d 1257, 1271 (D.C. Cir. 2010) (explaining that “[s]trict enforcement of the FCA’s scienter requirement” is necessary to “ensure that ordinary breaches of contract are not converted into FCA liability”). For this reason, “[establishing knowledge under” FCA provisions that use knowledge as scienter requires plaintiffs to “prove that the defendant knows ... that [he] violated a[n] ... obligation,” not simply that he mistakenly interpreted a legal obligation. Sci. Applications Int’l Corp., 626 F.3d at 1271.

All of this means that the relators’ complaint must allege facts that create the inference that MWCD knew that the relevant deed restrictions required it to deliver property to the United States, or that it “act[ed] in deliberate ignorance” or in “reckless disregard” of this fact. 31 U.S.C. § 3729(b)(1)(A); Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541 (6th Cir. 2007). The relators have failed to satisfy this burden. In this case, neither the rela-tors’ complaint nor their proposed amended complaint includes facts that show how MWCD would have known that the frack-ing leases violated the deed restrictions or how MWCD- “act[ed] in deliberate ignorance” or in “reckless disregard” of that fact. In the absence of such facts, the relators have failed to show anything more than a possibility that MWCD acted unlawfully. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. As the Supreme Court has explained, this failure is fatal to the relators’ claim: “[WJhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Ibid, (quoting Fed. R. Civ. P. 8(a)(2)).

The relators’ complaint and proposed amended complaint do recount the restrictions in the 1949 deed that MWCD received from the United States, and also recount MWCD’s decision to sign leases of subsurface mineral rights' on the land it received pursuant to the 1949 deed. These facts could create the' inference that MWCD knew about the deed restrictions when it signed the leases, and such an inference would be consistent with the theoretical possibility that MWCD in fact believed that the restrictions forbade it from executing the oil and gas leases. But again, Rule 8’s “plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, ‘it stops short of the line between possibility and plausibility of entitlement to relief.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

In short, the relators’ first claim can succeed only if the court “make[s] inference upon inferences to provide the” facts missing from their complaint. Mitchell v. Proctor & Gamble, No. 2:09-CV-426, 2010 WL 728222, at *5 (S.D. Ohio Mar. 1, 2010). Because Rule 8 does not obligate the court to engage in such speculation, see Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937, the district court properly granted MWCD’s motion to dismiss the relators’ first claim.

B

The relators’ second claim is that MWCD is liable under the FCA’s conversion provision, which imposes civil liability on anyone who “has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property.” 31 U.S.C. § 3729(a)(1)(D). The district court dismissed this claim on the ground that “allegations of breach of contract—without some factual contentions setting forth fraudulent conduct—stop short of establishing a[n] FCA claim,” Although the district court’s analysis would have been sound if the allegations in this case described conduct occurring in or before 2009, in passing FERA, Congress amended the FCA’s conversion provision to eliminate a fraud requirement. See United States ex rel. Holbrook v. Brink’s Co., No. 2:13-CV-873, 2015 WL 196424, at *9 (S.D. Ohio Jan. 15, 2015). Nonetheless, the district court arrived at the correct result because the relators’ failure to allege facts showing that MWCD knew that it possessed property now belonging to the government means that they cannot maintain their conversion claim against MWCD.

There is little doubt that the plaintiffs’ complaints, which do not' allege fraud, would not have survived a motion to dismiss if the pre-FERA conversion provision governed this case; that provision imposed liability only against those who possessed United States property and, “intending to defraud the Government ..., delivered], or cause[d] to be delivered, less property than the amount for which the person received a certificate or receipt.” 31 U.S.C. § 3729(a)(4) (2006). But in addition to . removing the “receipt” requirement, see S. Rep. No. 111-10, at 13 (2009), FERA also replaced the “inten[t] to defraud” requirement with a knowledge requirement, see 31 U.S.C. § 3729(a)(1)(D) (imposing liability on anyone who “knowingly delivers, or causes to be delivered, less than all of’ United States property that he or she holds). As with the FCA’s amended reverse-false-claini provision, no court aside from the district court in this litigation appears to have considered the FCA’s conversion provision as it applies after FERA.

Notwithstanding the dearth of relevant precedent, the text of the amended conversion provision suggests that the re-lators have failed to state a claim under the post-FERA scienter requirement. As described above, ordinary rules of grammar suggest that the word “knowingly” modifies not only the verbs “delive[r]” or “caus[e],” but also the phrase “less than all of that money or property.” See Flores-Figueroa, 556 U.S. at 650-51, 129 S.Ct. 1886. For a defendant to “know” that he is delivering.or causing to be delivered “less than all” of certain property “used, or to be used, by the Government,” he must necessarily also know that the property belongs to the government. 31 U.S.C. § 3729(a)(1)(D). In .their appellate brief, the relators claim that they have “pled that the subject property is government property,” “that [MWCD] has failed to deliver such property to the government,” and that MWCD knew that it failed to deliver the property. Appellant Br. 36. But that is not enough: Under the text of the conversion provision, the relators must also show that MWCD either had “actual knowledge” that title to the relevant land had reverted to the United States, or that MWCD acted in “deliberate ignorance” or “reckless disregard” of that fact. 31 U.S.C. § 3729(b)(1)(A).

As described above,, aside from the con-clusory allegation that MWCD “knowingly caused to be delivered less than all” of the United States property that it possessed, the relators’ complaints do not mention whether or how MWCD knew or should have known that it was in violation of the deed restrictions, such it knew or should have known that title to the property reverted to the United States. For this reason, the relators failed to properly plead a conversion claim, and the district court’s dismissal of that claim was not in error.

IV

Lastly, the relators claim that even if their complaint is defective, “the district court should have allowed [them] [leave] to amend to cure [any] pleading deficiencies.” Appellant Br. 36. Federal Rule of Civil Procedure 15(a) states that leave to amend a complaint “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). Though district courts have discretion to permit or deny amendment after a defendant files an answer to a plaintiffs complaint, Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990), “[t]he thrust of Rule 15 is ... that cases should be tried on their merits rather than the technicalities of pleadings,” Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 425 (6th Cir. 1999) (quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)). Although this court ordinarily reviews a district court’s denial of a motion for. leave to amend for abuse of discretion, Evans v. Pearson Enters., 434 F.3d 839, 853 (6th Cir. 2006), where,. as here, the district court denies such leave on the ground that amendment would be futile, this court reviews the district court’s decision de novo, Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003).

“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). In this case, the relators amended their complaint once before MWCD filed an answer. After MWCD filed a motion to dismiss the amended complaint, the relators filed a motion to amend their amended complaint to respond to MWCD’s motion. Because, as discussed above, the relators’ proposed amended complaint also fails to satisfy the requirements of Rule 12(b)(6), the district court properly denied the relators’ motion as futile. See Ibid.

Although the relators argue that they should have had yet another opportunity to amend their complaint after the district court issued its opinion because they lacked “sufficient notice of pleading deficiencies or adequate opportunity to cure them,” the relators are not “entitled to an advisory opinion from the [district court] informing them of the deficiencies of the complaint and then an opportunity to cure those deficiencies.” Strayhorn v. Wyeth Pharm., Inc., 737 F.3d 378, 400 (6th Cir. 2013) (quoting Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 573 (6th Cir. 2008)). This argument thus does not provide the court with grounds to vacate the district court’s order granting MWCD’s motion to dismiss.

V

In this action concerning title to land in Ohio, the relators creatively attempt to take advantage of recent legislative amendments that replace a fraudulent-intent requirement in two FCA provisions with a requirement that the defendant acted “knowingly.” However, the relators fail to properly state a claim even under the more lenient scienter requirement. In particular, the relators fail to plead facts showing that MWCD knowingly violated a deed restriction applicable to land that it holds. This failure means that the relators cannot show that MWCD violated the FCA’s reverse-false-claim and conversion provisions by knowingly withholding the land from the United States. For this reason, we AFFIRM the district court’s'dismissal of MWCD’s claims.

DISSENT

KAREN NELSON MOORE, Circuit Judge,

dissenting.

I agree with the majority’s interpretation of the statutory language of 31 U.S.C. § 3729(a)(1)(G) and (D). I disagree with the majority, however, that the relators’ complaint fails to satisfy the pleading standards of Rule 8 of the Federal Rules of Civil Procedure in alleging violations of these statutes.

The relators alleged that the United States deeded land to the Muskingum Watershed Conservancy District (“MWCD”) in 1949 and that this deed granted “a determinable fee simple estate, subject to a possibility of reverter interest retained by the United States” if the land was not used for its specified purpose. R. 15-1 (Second Am. Compl. at 2-3) (Page ID #362-63); see also R. 8 (First Am. Compl. at 2) (Page ID #102). The relators alleged that MWCD entered into several subleases for the purpose of oil, gas, and mineral-resource extraction on the government-deeded land, that these subleases violated restrictions in the 1949 deed, and that “the United States was entitled to immediate possession of said lands.” R. 15-1 (Second Am. Compl. at 4-5) (Page ID #364-65); R. 8 (First Am. Compl. at 3-4) (Page ID #103-04). The complaint further states that “[subsequent to the above-described leases, MWCD failed to return possession of said lands to the United States,” and that MWCD “retained income derived from said lands, and failed to deliver it to the United States.” R. 15-1 (Second Am. Compl. at 6) (Page ID #366).

The majority insists that the relators have not shown that MWCD acted with the requisite degree of scienter. But determining whether a complaint meets Rule 8’s requirements is “a context-specific .task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “If a reasonable court can draw the necessary inference from the factual material stated in the complaint, the plausibility standard has been satisfied.” Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012). Here, given the relative simplicity of the factual basis underlying the relators’ claim, I believe that the complaint sets forth sufficient factual allegations such that we can “draw the reasonable inference,” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, that MWCD knowingly avoided an obligation to the government and knowingly converted government money or property. For this reason, I dissent.


source: Caselaw Access Project

author: BOGGS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jermaine Benjamin PRYOR, Defendant-Appellant.
    No. 15-2123
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: November 22, 2016

      ON BRIEF: Steven D. Jaeger, The Jae-ger Firm, PLLC, Erlanger, Kentucky, for Appellant. B. Rene Shekmer, United States Attorney’s Office, Grand Rapids, Michigan, for Appellee.
    Before: GUY, BOGGS, and GRIFFIN, Circuit Judges.
   OPINION

BOGGS, Circuit Judge.

Before us is a case involving the invocation of the right to self-representation, voice-identification testimony, and a sentencing enhancement for possession of a firearm in furtherance of a drug crime. Because we find no error below, we affirm the judgment of the district court.

I

Jermaine Pryor (who calls himself AI Gomono Bey) was charged with conspiring with three other men to distribute heroin between 2012 and 2014. The conspiracy operated by having interested persons call a phone number to speak to “Daffy Duck” and negotiate a purchase of heroin. “Daffy” (allegedly Pryor) would then give a location for the proposed transaction and inform members of the conspiracy of what to bring and where to bring it. Deputy Chauncey Shattuck listened in on four telephone calls between “Daffy” (now under the nom de guerre “Taz”) and an informant in January and February 2014 regarding buying heroin. Following a drug purchase on February 20 by the informant, police maintained surveillance on the residence where the sale occurred. While a search warrant was being drafted, a Dodge Magnum arrived and Pryor entered the house. Police observed Pryor through the window as he picked up money and placed it into a bag, and then returned to his car and left. Deputy Michael Leasher followed the car from the house until it was stopped by an Ingham County sergeant and deputy for traffic violations. Pryor was ordered out of the vehicle and the officers observed that he had a .45-caliber dock pistol holstered inside his waistband. Pryor informed the officers that he had a proper license for the weapon, which they verified. After he was handcuffed and patted down,. the police discovered wads of money in his pockets. Pryor was arrested for his connection to the drug transaction. The police later found in the car a cell phone with a disconnected battery. They reconnected the battery and turned the phone on. Shat-tuck called the number for Taz and the phone rang.

Pryor made thirty-three phone calls while in jail, which were recorded. In addition, Pryor had a recorded virtual meeting with a visitor via video feed. Pryor was released, and Shattuck received disks from Detective Brad Delaney that Delaney stated contained recordings of the phone calls from Pryor and the twenty-minute video recording.

Shattuck listened to these phone calls and the video recording (a total of about four hours of conversation) in preparation for further investigation. In watching the video, Shattuck found that Pryor’s voice matched Taz’s voice that he had heard earlier, and that the voices on the recordings were the same as that of the prisoner in the video. In late April 2014, Taz called Shattuck and the two spoke briefly. Shat-tuck then made four controlled drug purchases in July 2014, each time contacting Taz over the phone and discussing the purchase details.

Officer Daniel Batora was also involved in the investigation of the conspiracy. Ba-tora listened to a twenty-minute recording of Pryor’s conversation in the last week of April 2014 prior to placing a call on May 1 to a line thought to be one of Taz’s ever-changing phone numbers. Batora identified the man on the other end of the line as Pryor and arranged a purchase of heroin. He made a total of three phone calls and purchases of heroin in May 2014.-

Pryor was arrested again on December 2, 2014, and brought before a magistrate judge. There, he appeared to object to the jurisdiction of the court, announcing that he had “no contracts with the United States corporation or anybody in this courtroom,” and repeatedly ignored the magistrate judge’s requests to be quiet. The court adjourned and brought him back the next day to complete his initial appearance. At this appearance, the court asked Geoffrey Upshaw to appear as standby counsel for Pryor and informed Pryor that Upshaw was “here if you wish to consult with him, but he d[id] not yet” represent him. Pryor responded that he was “never going to consult with” Upshaw. He then began to object to the jurisdiction of the court, explaining that he was “not a part of' your society.... I am a moor, and your laws d[o]n’t apply to me.” The magistrate judge informed Pryor of his right to the assistance of counsel, and that counsel would be appointed at no cost if he could not afford representation. Pryor immediately stated “I don’t consent to that.” When the magistrate judge asked if he understood that counsel could be appointed for him, Pryor replied that he did not. The magistrate judge then inquired if Pryor was asking the court to appoint counsel, and Pryor denied consent to the court’s jurisdiction. The magistrate judge repeated his question, and Pryor answered “No. I don’t have—no, I don’t consent to anything.” When asked if he intended to hire his own attorney, Pryor indicated that he would not: “Why would I—I am not a minor and no one ... will be talking for me.” Again, the magistrate judge repeated his question, and Pryor repeated his answer, saying “I’m not a minor and I don’t need anyone to talk for me.” After being read the charges against him and asked if he understood them, Pryor said he did not. He repeated his denial of the court’s jurisdiction (“I’m not a part of your society. Your laws d[o]n’t apply to me.”). Citing Pryor’s “bizarre[]” behavior, the magistrate judge ordered that Pryor be referred to the Bureau of Prisons for a competency evaluation.'

At the competency hearing on March 16, 2015, Pryor objected to being in court “under direct duress and coercion,” but indicated that he was appearing “in pro-pria persona.” The magistrate judge observed that he had now appointed Upshaw as Pryor’s counsel, at least for'the duration of the competency hearing, and Upshaw noted that Pryor did not wish for him to speak on his behalf. Pryor objected, but was warned that he would be removed from the courtroom if he continued to speak out of turn. Based on the competency report, the court found that Pryor was competent to proceed in' his case. When the court was advising Pryor of his rights, Pryor repeatedly answered questions with questions of his own. The court stated: “If you are either unable or unwilling to answer my questions, I will have no alternative but to keep Mr. Upshaw on as counsel. You cannot represent yourself if you will not cooperate with the Court in answering questions.” The court directly asked Pryor, “do you wish to represent yourself or do you wish to have counsel represent you?” Pryor answered “I will be myself’ and again challenged the court’s jurisdiction. The court repeated the question, and Pryor asked if the judge was offering him a contract. The court repeated itself one final time and warned that if Pryor did not answer the question, “I’m going to simply retain Mr. Upshaw as your attorney.” Pryor objected to being called “Mr. Pryor,” and the court appointed Upshaw as counsel, to which Pryor immediately and repeatedly objected.

Pryor continued to object throughout the proceeding to the court or Upshaw taking any action on his behalf. The magistrate judge announced that any further objections would result in Pryor being removed from the courtroom and added, “If you’re represented by counsel, that’s your doing. You have no one to blame but yourself for the situation that you’re in,” explaining that Pryor would not answer his questions and as such he could no longer “speak for [him]self.” But when the court asked Upshaw whether he had anything to offer the court, Pryor objected again: ■ “I am not a minor. He will not speak for me.” Pryor was escorted out of the courtroom.

The next day at the initial pretrial conference, Pryor again continued his objections to Upshaw’s representation of him. When told by the court that he was now represented by counsel, Pryor objected: “I have no contracts with this man_I am here in •propria persona....” The magistrate judge iriformed Pryor that if he spoke to the court directly rather than through counsel, he would be removed from the courtroom. Despite this warning, Pryor twice objected to Upshaw’s representation. On March 19, Pryor submitted an “Affidavit of truth” to the court, disclaiming the court’s jurisdiction, announcing that he had no contracts with any corporation or the United States of America, and stating “Geoffrey Upshaw will not represent me.” The document was rejected as not having come through appointed counsel. Pryor Continued to submit affidavits asserting his desire to appear in pro-pria persona and contesting the court’s jurisdiction. After a further message to the court asserting his desire to proceed in propria persona (among other arguments), the court entered an order to automatically reject letters from Pryor and “advise[d] and recommend[ed] that Defendant Pryor consult with his counsel regarding this and all other aspects of the case.” Pryor continued to send letters objecting to deprivation of his ability to be in propria persona, jurisdiction, and other matters.

Just over two months later at the final pretrial conference of May 20, 2015, now before Chief Judge Robert Jonker, Pryor continued his objections to Upshaw acting as his. counsel, among other objections. He interrupted the court on numerous occasions to raise his objections, which were often framed in legalistic—albeit unorthodox—terms. His appointed counsel challenged the proposed voice identification by Batora and Shattuck on the basis that proper foundation could not be established and the officers were basing their identification on memory alone, rather than on recordings that might have been made of their phone calls with Taz. The court denied the motion.

At'trial, Pryor raised objections to counsel and jurisdiction. After a jury trial, Pryor was convicted of conspiracy to distribute 100 grams or more of heroin. Pryor was sentenced on September 15, 20Í5, where he stated once again that “[t]he magistrate judge ... appointed Geoffrey Upshaw over my objection” and made further objections to the court. His appointed counsel objected to the quantity of drugs listed on the sentencing report, the leadership sentencing enhancement, and the firearm enhancement, as well as to the report’s listing of Pryor as “black or African-American” rather than “Moors American,” his name appearing as Jermaine Pryor, and a Social Security number being related to him. The court denied the objections, finding that Pryor “ha[d] never engaged the process sufficiently to establish, assert, and enjoy the privilege of representing himself,” and sentenced Pryor to 235 months in custody.

II

We begin with the threshold issue of jurisdiction. Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). Pryor challenges the jurisdiction of this court and the court below on a number of grounds. First, Pryor insists that he was tried for a state crime, which would deprive the federal courts of jurisdiction. But he was charged under 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), federal statutes properly passed by Congress that provide this court- with federal-question subject-matter jurisdiction. See 18 U.S.C. § 3281 (2012). Next, Pryor argues that the United States lacks standing because there is no injured party in this conspiracy case. There is standing, however, because “the injury to [the United States’] sovereignty arising from violation of its laws ... suffices to support a criminal lawsuit by the Government.” Vt. Agency of Nat Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). Pryor also contends that the court did not establish personal jurisdiction over him and attempted to preserve this argument by indicating that he was appearing specially before the district court to contest personal jurisdiction. Federal courts have personal jurisdiction over criminal defendants before them, whether or not they are forcibly brought into court. See United States v. Alvarez-Machain, 504 U.S. 655, 660-62, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952). We have jurisdiction over this appeal through 28 U.S.C. § 1291 (2012).

On a final note, Pryor also complained that he was in an Article III court yet not before an Article III judge, which (as he did not waive the issue), if true, may constitute a violation of Article III. See Roell v. Withrow, 538 U.S. 580, 588-89, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003); United States v. Ford, 824 F.2d 1430, 1435 (5th Cir. 1987) (en banc) (“It is sufficient here to simply observe that such a [situation] would pose grave constitutional issues,”). However, the district judge who presided below, the Honorable Robert J. Jonker, is a duly appointed Article III judge, as are the members of this panel. 153 Cong. Rec. 18210 (2007); 151 Cong. Rec. 12171 (2005); 132 Cong. Rec. 3430 (1986); 131 Cong. Rec. 27728 (1985). Likewise, the district court and this court are constitutionally created Article III courts. 28 U.S.C. §§ 41, 43, 102. As a result, the case is properly before us and we may decide this matter without fear of constitutional impropriety.

Ill

A. Right of Self-Representation

Although the issue has come before us on several occasions, “Sixth Circuit jurisprudence concerning the standard of review applicable to claims asserting violations of the right to self-representation is confused.” United States v. Evans, 559 Fed.Appx. 475, 478 (6th Cir. 2014). We have at times reviewed denials of motions for self-representation de novo, United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004), and for abuse of discretion, Robards v. Rees, 789 F.2d 379, 384 (6th Cir. 1986). We have also held that de novo review is required for review of a waiver of a constitutional right. United States v. Ross, 245 F.3d 577, 583 (6th Cir. 2001). Because we believe that under either standard of review the district court’s decision was justified, we will once again defer the determination of the proper standard of review for this question.

The Sixth Amendment guarantees the right of the accused “to have the assistance of counsel for his defense.” U.S. Const, amend. VI. But it also “implies a right of self-representation.” Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “To thrust counsel upon the accused, against his considered wish, ... violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master.... ” Ibid. As the right to self-representation and the right to counsel are “two faces of the same coin,” the assertion of one necessarily requires the waiver of the other. United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970) (quoting United States v. Platt ner, 330 F.2d 271, 276 (2d Cir. 1964)). Because the “dangers and disadvantages of self-representation ■ during trial are so substantial,” a court must make a “searching or formal inquiry” before permitting a waiver of the right to counsel (although no such inquiry is required for the correlative waiver of right to self-representation). Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (en banc) (citation omitted). The object of the inquiry is to establish that the defendant “knowingly, intelligently, and voluntarily” waived the right and “his choice is made with eyes open.” Fowler v. Collins, 253 F.3d 244, 249 (6th Cir. 2001) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). “[N]o degree of legal knowledge is required” to assert the right, so long as the defendant appreciates what he is forgoing. United States v. McDowell, 814 F.2d 245, 250 (6th Cir. 1987).

In the Sixth Circuit, we have mandated a formal inquiry, using our supervisory powers, that federal district judges must undertake to determine whether a waiver is proper. Id. at 249-50. Where a request to self-represent is clear, unequivocal, and timely, the court “must ask the defendant a series of questions drawn from, or substantially similar to, the model inquiry set forth in the Bench Book for United States District Judges.” United States v. McBride, 362 F.3d 360, 366 (6th Cir. 2004); see also Cromer, 389 F.3d at 682.

After Pryor was adjudged competent, the magistrate judge attempted to inform him of his rights. To almost every question, however, Pryor responded with a question of his own, mostly addressed at the court’s jurisdiction. When the magistrate judge asked directly whether Pryor wished to represent himself or have counsel represent him, the closest Pryor came to acknowledging that he wished to represent himself was- his statement “I will be myself.” This statement can hardly be called a clear assertion of the right to self-representation, especially given Pryor’s failure to confirm that meaning of his statement upon repeated inquiries by the judge. We have found, where a defendant “repeatedly interrupted the judge, complained, and answered almost every question by contending that he did not understand,” a district court’s denial of a motion for self-representation would not be reversed under an abuse-of-discretion standard. United States v. Carradine, 621 F.3d 575, 579 (6th Cir. 2010), abrogated on other grounds by Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Pryor’s refusal to provide a straight answer to the thrice-repeated question of whether he wished to be represented by counsel or by himself was a rejection of further inquiry into his waiver of counsel and justified the magistrate judge’s conclusion of the colloquy. A court facing such resistance can hardly be expected to proceed through the questions in anticipation that the defendant may change his mind and begin responding. See, e.g., Carradine, 621 F.3d at 579.

This result is fully consistent with Faretta and similar cases. Faretta itself noted that ,“[t]he right of. self-representation is not a license to abuse the dignity of the courtroom ... [nor] a license not to comply with relevant .rules of procedural and substantive law.” 422 U.S. at 834 n.46, 95 S.Ct. 2525. The Faretta Court used Illinois v. Allen to explain this restriction on the right of self-representation. Allen had held that an “obstreperous defendant” could be removed from the courtroom “until he promises to conduct himself properly.” Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); see also Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525. If a defendant may be removed from a courtroom for his disorderly behavior and waive his right to be present at trial, so too can he waive his right to act pro se and thus have appointed counsel act in his stead while he is removed from the courtroom. See Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525; United States v. Dougherty, 473 F.2d 1113, 1125 (D.C. Cir. 1972). The refusal to provide answers to the colloquy is similar to a refusal to attend proceedings, and the court may treat it as a waiver of the right to self-representation. But this court has held that “no action against an unruly defendant is permissible except after he has been fully and fairly informed that his conduct is wrong and intolerable, and warned of the possible consequences of continued misbehavior.” Gray v. Moore, 520 F.3d 616, 623 (6th Cir. 2008) (quoting Allen, 397 U.S. at 350, 90 S.Ct. 1057 (Brennan, J., concurring)).

Here, the magistrate judge, after his attempts to have Pryor expressly state he wished to represent himself, clearly warned Pryor that failure to respond to the question would result in the appointment of Upshaw as his attorney. Pryor’s answer was nonresponsive, and so the magistrate judge permissibly appointed counsel and ended the colloquy. See Carradine, 621 F.3d at 579; cf. United States v. Knight, 896 F.2d 1369, 1990 WL 18055, at *5 (6th Cir. 1990) (unpublished table decision) (per curiam) (“The transcript demonstrates that quizzing [the defendant] as McDowell directs would have been futile.”); Raulerson v. Wainwright, 732 F.2d 803, 809 (11th Cir. 1984) (holding the right to self-representation waived where the defendant left the courtroom in the middle of the Faretta inquiry).

This finding is not the end of Pryor’s claim, however, as defendants may assert the right to self-representation later in proceedings, where the assertion is timely and not' an attempt to delay or manipulate proceedings. See, e.g., Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008) (holding that the court was required to perform a Faretta inquiry even after the defendant had begun trial with counsel); Robards, 789 F.2d at 383. This case presents the question of whether a defendant who has waived his right through a refusal to engage with court proceedings and procedure can reinvoke his right without a demonstration or promise that the conduct that caused the initial waiver will not reoccur. Because we find that a defendant who has thus waived his right must make some indication that he will engage with the court at least to the extent of answering procedural questions such as the colloquy and that Pryor made no such indication, we need not decide.whether Pryor’s scores of objections to counsel’s actions and claims that he was appearing “in propria persona” suffice to constitute a clear and unequivocal invocation of the right to self-representation. See Cromer, 389 F.3d at 682; United States v. Pittman, 816 F.3d 419, 426 (6th Cir. 2016) (finding that where a defendant rejects counsel, it may be the same as a choice to self-represent),

Having waived his self-representation right previously by reason of his nonanswers, Pryor needed to make a good-faith showing-that the problem would not reoccur. In Allen, the defendant agreed to behave and was permitted to return (and was in fact thrown out for disruption and then readmitted once again later when he made a new promise). See 397 U.S. at 340-41, 90 S.Ct. 1057. Absent that promise, the court had no reason to expect that Pryor would change his mind and answer the questions rather than treat the colloquy as another “offer to contract” and reject the inquiry anew. Having set the status quo himself, Pryor bore the light burden of showing that his .behavior had changed and he would proceed with the Faretta inquiry.

Courts dealing with defendants seeking to represent themselves face a dilemma: the potential for an unconstitutional denial of the right to counsel if the right to' self-representation is too quickly provided or reversal for unconstitutional denial of the right to self-representation if the right to counsel is too vigorously shielded. The method that our court has devised to avoid the predicament is to provide an opportunity for defendants to indicate their desire to waive the right to counsel and then to undertake a thorough review of the detriments and disadvantages that accompany such a waiver. Where the defendant through his own actions does not permit the court to ascertain whether a waiver is knowing or voluntary, or even if he means to waive at all, he cannot use the court’s failure to acknowledge the waiver later to take a mulligan and try his case again if he loses. This is not to say that an obstreperous defendant has forever waived his right to self-representation; on the contrary, where “he promises to conduct himself properly,” the court should reinvestigate the invocation. Allen, 397 U.S. at 344, 90 S.Ct. 4057. Pryor, however, made no such promise and instead simply continued to make objections and interrupt the court. Accordingly, the district court had no indication that he would comply with and complete the colloquy this round, and Pryor’s right to self-representation remained waived.

B. Admission of Voice-Identification Testimony

Pryor also argues that the admission of the voice-identification testimony of Deputy Shattuck and Officer Batora was in error. We review the district court’s admission of evidence for abuse of discretion. See United States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004). “The standard for the admissibility of an opinion as to the identity of a speaker is merely that the identifier has heard the voice of the alleged speaker at any time.” United States v. Cooke, 795 F.2d 527, 530 (6th Cir. 1986) (quoting United States v. Rizzo, 492 F.2d 443, 448 (2d Cir. 1974)).

It is clear that the district court did not abuse its discretion. First, although Shattuck’s initial conversations with “Taz” were without prior knowledge of Pryor’s voice, his listening to the phone calls and watching the video recording made while Pryor was incarcerated provided him with a reliable exemplar. Defense counsel admitted that the recordings were of Pryor, acknowledging “we don’t dispute that the voice on the jailhouse recording is the voice of the defendant.” The order of listening to voices (the voice to be compared and the exemplar) is not dispositive of the admissibility of the testimony, as Federal Rule of Evidence 901(b)(5) permits testimony based on “hearing the voice at any time.” Fed. R. Evid. 901(b)(5) (emphasis added); see also United States v. Simms, 351 Fed.Appx. 64, 69 (6th Cir. 2009). Additionally, because Shattuck was able to compare the telephone calls with the video recording, he could confirm that those calls were made by the man in the video recording. Even Pryor’s argument that Shattuck could not confirm the accuracy of Detective Delaney’s assertion that the jail calls were from Pryor is unavailing; Shattuck identified Pryor in court, essentially making the connection between Pryor, the phone calls, and video. There is no requirement that the exemplar be from a face-to-face conversation. See, e.g., United States v. Mendiola, 707 F.3d 735, 741 (7th Cir. 2013). Nor must the witness be qualified as an expert. See, e.g., United States v. Recendiz, 557 F.3d 511, 527 (7th Cir. 2009); cf. United States v. Harris, 786 F.3d 443 (6th Cir. 2015) (finding lay testimony permissible for handwriting comparison). Batora’s conversations were made after listening to the twenty-minute recording. Again, because defense counsel admitted that the recording was of Pryor, the recordings were a proper exemplar. Thus, Batora could compare the voice in the recording with his personal recollection of the voice on the phone calls that he made later to set up drug buys.

Pryor also argues that the conversations that Shattuck and Batora had with Taz were too brief to establish familiarity with the voice. We found in United States v. Cooper, 868 F.2d 1505 (6th Cir. 1989), that the district court’s admission of testimony by an officer who had listened to tape recordings of a conversation with a voice to be identified and spoken with a defendant for thirty seconds was not an abuse of discretion. Id. at 1519. There is no reason why it should matter whether the exemplar or the voice to be compared is of short duration; thus, relying on the multiple minute-long conversations that Shattuck and Batora had with Taz to admit the testimony is not an abuse of discretion.

Finally, Pryor contends that the failure of the police to record the phone calls negotiating the purchase of heroin should preclude the testimony. Although such recordings would be helpful to a court and jury, they are not required. See Simms, 351 Fed.Appx. at 69 (permitting testimony identifying a voice on a recording where witness had last heard unrecorded exemplar two years previously). In sum, the court did not abuse its discretion in permitting the voice-identification testimony.

C. Sentencing Enhancement for Possession of a Firearm in Furtherance of a Drug Crime

Pryor’s Guidelines sentencing range was enhanced by application of USSG § 2Dl.l(b)(l), which provides that where a defendant is convicted of a conspiracy to traffic under 21 U.S.C. § 841, “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” USSG § 2Dll.l(b)(l). “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. § 2D11.1 comment. n.3(A). Pryor argues that there was insufficient evidence to demonstrate that he possessed a firearm in connection with his drug-trafficking offense. We review a district court’s interpretations of the Sentencing Guidelines de novo and factual findings at sentencing for clear error. United States v. Greeno, 679 F.3d 510, 514 (6th Cir. 2012). “A district court’s finding that a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly erroneous standard of review.” United States v. Benson, 591 F.3d 491, 504 (6th Cir. 2010) (quoting United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)).

The application of § 2Dll.l(b)(l) involves a two-part test. First, the government has the burden of demonstrating “by a preponderance of the evidence that ‘(1) the defendant actually or constructively “possessed” the weapon, and (2) such possession was during the commission of the offense.’” United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007) (quoting United States v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996)). Once that burden is met, the enhancement applies unless the defendant can present evidence to show that it was “ ‘clearly improbable’ that the weapon was connected to the offense.” Greeno, 679 F.3d at 514 (quoting Catalan, 499 F.3d at 606).

It is clear that Pryor possessed a firearm during the conspiracy to traffic in heroin. He was pulled over after leaving a house where heroin had been sold, having collected the proceeds of a drug transaction. There is no need for the government' to demonstrate the connection between the firearm and the crime to shift the burden. See United States v. Dixon, 262 Fed.Appx. 706, 711 (6th Cir. 2008); United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991) (“The government does not have to produce any further evidence establishing a connection between the weapon and the offense for § 2Dl.l(b)(l) enhancement to be appropriate.”), abrogated on other grounds by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002). In Dixon, the firearm was in a car that the defendant drove to the meeting place and left in an adjacent lot before walking to a building to perform a drug purchase. Those circumstances were sufficient to shift the burden to the defendant. Much like in United States v. Moses, 289 F.3d 847 (6th Cir. 2002), Pryor “kept [a] firearm[ ] in his [car] during the period of the conspiracy ... [and] used his [car] to perform acts in furtherance of the conspiracy; namely,” to collect drug proceeds. Id. at 850. The government has met its burden.

Once the burden shifts to the defendant, he must demonstrate that it was “clearly improbable” that the weapon was connected to the offense. In examining the probability of a connection, the court weighs a number of factors, including:

(1) the type of firearm involved; (2) the accessibility of the weapon- to the defendant; (3) the presence of ammunition; (4) the proximity of the weapon to illicit drugs, proceeds, or paraphernalia; (5) the defendant’s evidence concerning the use of the weapon; and (6) whether the defendant was actually engaged in drug-trafficking, rather than mere manufacturing or possession.

Greeno, 679 F.3d at 515 (citations omitted). Here, the weapon was a dock pistol, not an antique musket or hunting rifle that might be impractical in connection with drug trafficking. The weapon was concealed on the defendant and was loaded. Pryor was arrested with the proceeds on him in the car while departing from the location of a drug transaction. While it is possible that Pryor happened to be carrying his legally licensed firearm with him without any connection to the conspiracy, it is just as likely (if not far more so) that he brought the gun to protect himself and his trade. Cf. United States v. Penaloza, 648 Fed.Appx. 508, 519 (6th Cir, 2016); United States v. Shults, 68 Fed.Appx. 648, 654 (6th Cir. 2003). This possibility is insufficient to show that the connection to the offense was clearly improbable.

Because Pryor cannot demonstrate that the district court committed clear error in applying the sentencing enhancement, we affirm the district court’s sentence.

IV

There is something peculiar in the fact that the only reason that Jermaine Pryor is able to raise his right to self-representation claims is because his appointed counsel is raising it for him; otherwise, Pryor would insist only on his jurisdictional defense. Here, however, neither argument is compelling. The Constitution provides defendants the choice to either use the assistance of counsel or go it alone. While we must be vigilant against removing that right to the choice, Pryor himself refused to make the choice or engage the court. Where a court has tried and failed to perform a colloquy due directly to the defendant’s failure to cooperate and that defendant has not made an indication that he will cooperate in the future, the court may .deem the right waived. The district court was justified in denying the request to proceed pro se, the voice testimony was properly admitted, and the sentencing enhancement was properly applied. For these reasons, we AFFIRM the judgment of the district court.

      . While Jermaine Pryor prefers to be called "Al Gomono Bey,” he does not appear to have changed his legal name and the proceedings thus far have referred to him by his given name. As a result, we refer to the defendant throughout as “Pryor,"

      . Pryor’s arguments were consistent with a branch of the "sovereign citizen” movement, an ideology that rejects the legitimacy of United States jurisdiction over its adherents. See, e.g., Michael Crowell, A Quick Guide to Sovereign Citizens, Admin. Just. Bull. (UNC Sch. of Gov’t, Chapel Hill, N.C.), Nov. 2015.

      . Many sovereign citizens believe that by entering into a contract with the federal government, they lose their status as sovereign citizens and provide courts with jurisdiction over them. See Francis X. Sullivan, Comment, The "Usurping Octopus of Jurisdictional/Authority'': The.Legal Theories of the Sovereign Citizen Movement, 1999 Wis. L. Rev. 785, 802 ("Once the Sovereign Citizen contracts with the federal government, he unknowingly surrenders his personal sovereignty and agrees to be bound by the illegitimate federal law.”). Indeed, a number of sovereign citizens believe that using a lawyer also constitutes acceptance of the jurisdiction of the court via contract with the government. See, e.g., Charles E. Loeser, From Paper Terrorists to Cop Killers: The Sovereign Citizen Threat, 93 N.C. L. Rev. 1106, 1126 (2015); Taj Tarik Bey, 6-Weelc Civics Class: Class 4, at 2, http://rvbey publications. com/sitebuildercontent/site builderfiles/webcivicsclass4.pdf (last visited on Oct. 27, 2016) ("If one hires a Lawyer or an Attorney of the Bar Association (A.B.A.) to ‘re-present’ you, then you’ have surrendered your Birthrights to that officer of the court! Jurisdiction is then assumed, and the officers of the court go straight to Adjudicating against you with sanctions, fines, and jail time, or both!”).

      . Some courts have justified the lack of inquiry by asserting that the right to counsel "attaches automatically and must be waived affirmatively to be lost, while the [right to self-representation] ; does ‘not attach unless and until it [i]s asserted..’" Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir. 1991) (en banc) (second alteration in original) (quoting Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986)); see also Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (en banc).

      . "In propria persona" is legally equivalent to "pro se” and was treated as such in Faretta. See Faretta, 422 U.S. at 816, 839, 95 S.Ct. 2525; In propria persona, Black’s Law Dictionary (10th ed. 2014) ("See pro se.”).