15-3075-cr

United States v. Wint

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 24th 4 day of June, two thousand sixteen.

5

6 PRESENT: DENNIS JACOBS,

7 GUIDO CALABRESI,

8 REENA RAGGI,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 15-3075-cr

16

17 FELICIA YOUNG, 

18 Defendant,

19

20 ROYAN WINT, AKA G-ROY,

21 Defendant-Appellant.

22 - - - - - - - - - - - - - - - - - - - -X

23

24 FOR APPELLANT: ELIZABETH D. MANN, Tepper

25 Dardeck Levins & Mann, LLP,

26 Rutland, Vermont.

27

1
1 FOR APPELLEE: GREGORY L. WAPLES, Assistant

2 United States Attorney (Paul J.

3 Van De Graaf, Assistant United

4 States Attorney, on the brief),

5 for Eric S. Miller, United

6 States Attorney for the District

7 of Vermont, Burlington, Vermont.

8

9 Appeal from a judgment of the United States District

10 Court for the District of Vermont (Murtha, J.).

11

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13 AND DECREED that the judgment of the district court be

14 AFFIRMED. 

15

16 Royan Wint, aka G-Roy, appeals from the judgment of the

17 United States District Court for the District of Vermont

18 (Murtha, J.), sentencing him principally to 60 months’

19 imprisonment after convictions for (1) conspiracy to

20 distribute and to possess with intent to distribute 28 grams

21 or more of cocaine base, cocaine, and oxycodone in violation

22 of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B); and (2)

23 possession with intent to distribute 28 grams or more of

24 cocaine base, cocaine, and oxycodone in violation of 21

25 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). We assume the

26 parties’ familiarity with the underlying facts, the

27 procedural history, and the issues presented for review. 

28

29 1. Wint argues that the evidence at trial was

30 insufficient to establish beyond a reasonable doubt that he

31 was involved in the distribution of narcotics. “A defendant

32 challenging the sufficiency of the evidence bears a heavy

33 burden . . . .” United States v. Kozeny, 667 F.3d 122, 139

34 (2d Cir. 2011). We “view the evidence in the light most

35 favorable to the government, crediting every inference that

36 could have been drawn in the government’s favor, and

37 deferring to the jury’s assessment of witness credibility

38 and its assessment of the weight of the evidence.” United

39 States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (citations

40 omitted). We must uphold the judgment if “any rational

41 trier of fact could have found the essential elements of the

42 crime beyond a reasonable doubt.” Id. (quoting Jackson v.

43 Virginia, 443 U.S. 307, 319 (1979)).

44

45 Viewed in the light required, the evidence was more

46 than sufficient to establish Wint’s intent to distribute--it

47 was overwhelming. Law enforcement officers who executed a

2
1 search warrant at Wint’s residence found approximately 70

2 grams of cocaine base, 173 grams of powder cocaine,

3 oxycodone pills, over $11,000 in cash, and a digital scale

4 with white powder in Wint’s bedroom. Wint confessed to

5 narcotics possession and distribution. And three witnesses

6 corroborated Wint’s confession, testifying, inter alia, that

7 Wint supplied them and others with oxycodone and cocaine to

8 distribute. One of these witnesses, Wint’s co-defendant,

9 testified that she had traveled with Wint to New York City

10 and Albany where Wint obtained cocaine and oxycodone from

11 two suppliers, and that she had seen Wint packaging crack

cocaine for distribution.1 12

13

14 Wint argues that the testimony of the non-law

15 enforcement witnesses was unreliable, Br. of Appellant 26;

16 Reply 9-10, but we must assume that the jury credited it. 

17 See United States v. Hamilton, 334 F.3d 170, 179 (2d Cir.

18 2003); United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.

19 1982).

20

21 2. On the eve of jury selection, Wint’s appointed

22 lawyer--his third--moved to withdraw and to be replaced with

23 new appointed counsel, and for a continuance. The district

24 court denied the motion, and Wint’s third lawyer continued

25 to represent him through the close of and immediately after

26 trial. Wint acknowledges that the district court acted

27 within its discretion in denying the motion to withdraw, but

28 he argues that the district court was “required to advise

29 the defendant of his Constitutional right to make an

30 election whether to proceed with court-appointed counsel or

31 to proceed pro se.” Br. of Appellant 9-10.

32

33 A criminal defendant has a constitutional right to

34 waive the right to counsel and to represent himself. 

35 Faretta v. California, 422 U.S. 806 (1975); see also 28

36 U.S.C. § 1654. Wint does not contend that he ever requested

37 to appear pro se, and he cites no authority for the

1 A handwritten bus schedule found in Wint’s car

corroborated the testimony regarding Wint’s Albany supplier. 

Of course, corroboration or a lack thereof “goes only to the

weight of the evidence, not to its sufficiency.” United

States v. Hamilton, 334 F.3d 170, 179 (2d Cir. 2003)

(quoting United States v. Roman, 870 F.2d 65, 71 (2d Cir.

1989)).

3
1 proposition that a court must affirmatively ensure that a

2 defendant is aware of this right.

3

4 Even assuming that when a district court denies a

5 motion to withdraw, a defendant has some right to be

6 informed that he may choose to appear pro se rather than

7 continue with appointed counsel, there was no prejudicial

error here.2 8 The record reflects Wint’s awareness of the

9 right of self-representation. The possibility of Wint

10 representing himself was mentioned several times in Wint’s

11 presence at the hearing on the motion to withdraw, and the

12 district court specifically asked Wint whether he wished to

represent himself; Wint declined.3 13

2 Harmless error analysis does not apply when a

criminal defendant is denied the right to appear pro se. 

United States v. Plattner, 330 F.2d 271, 273 (2d Cir. 1964). 

To repeat, Wint does not argue that he ever invoked (and

therefore was denied) his right of self-representation.

3 In Wint’s presence, Wint’s trial counsel mentioned

previous discussions with Wint regarding whether Wint wanted

to represent himself (and stated that he believed Wint “more

often than not, he realizes that may not be a wise course”),

App’x 148, and informed the court that “[i]f [Wint] were to

tell you he wants to go pro se and you want to hold me as a

stand-by counsel, I would be willing to do that,” App’x 150. 

Subsequently, the district court asked Wint: 

[A]t the last, maybe even both times when you

asked to have another lawyer or when the lawyer

asked to be relieved from the case, I advised you

that, particularly after Mr. Mabie, that it was

the last time you were going to get assigned

counsel. That was about a year ago. So you still

don’t want Mr. Mabie to represent you? . . . So

you don’t wish to try this case on your own, I

assume?

App’x 150-51. Wint responded, inter alia, “I don’t want to

go pro se right now.” App’x 151.

Wint argues that his response might have meant only

that Wint preferred the appointment of new counsel to selfrepresentation, and that once Wint’s motions were denied he

may have then preferred to proceed pro se rather than with

4
1

2 3. After the close of the government’s case, Wint’s

3 counsel conferred with Wint, and advised the court that Wint

4 had chosen not to testify in his own defense. Wint contends

5 that counsel gave ineffective assistance by failing to

6 advise him that the district court would allow him overnight

7 to decide whether to testify, and that if he did choose to

8 testify, he could do so the following morning rather than

9 immediately. He further contends that his testimony would

10 have affected the outcome of the case.

11

12 To prevail on a claim of ineffective assistance of

13 counsel, a defendant must (1) “show that counsel’s

14 representation fell below an objective standard of

15 reasonableness”; and (2) “affirmatively prove prejudice.” 

16 Strickland v. Washington, 466 U.S. 668, 688, 693 (1984). 

17 The district court ruled that Wint failed to make either of

these showings.4 18 

19

20 We agree that Wint failed to show objectively

21 unreasonable performance; we therefore need not consider

22 prejudice. The district court found Wint’s factual

23 allegations incredible and instead credited trial counsel’s

24 affidavit, which stated, inter alia, that counsel had

25 advised Wint against testifying but never told him that he

26 could not do so; that Wint had been informed of his right to

27 testify and stated that he would not testify; that counsel

28 informed Wint that the court had suggested Wint could wait

29 until the following morning to finally decide whether to

30 testify, but Wint said that his decision would be the same

31 the next day; and that Wint never told counsel that he

32 wanted to testify the next day when he would be more rested. 

33 We defer to the district court’s factual findings, which are

appointed counsel. This is an implausible reading of the

transcript. In any event, Wint obviously knew that pro se

status was an option. See also Supp. App’x 35 (letter from

trial counsel to Wint advising that if Wint decides he

wishes to represent himself he should inform counsel

“clearly . . . in writing”).

4 Both parties agree that the district court had the

discretion to consider this ineffective assistance claim

prior to sentencing and entry of judgment. See United

States v. Brown, 623 F.3d 104, 113-14 (2d Cir. 2010). 

5
1 not clearly erroneous. See Contino v. United States, 535

2 F.3d 124, 127 (2d Cir. 2008). 

3

4 Wint’s trial counsel fulfilled his duty of effective

5 assistance to advise Wint that he had the right to testify,

6 and to provide advice regarding whether to exercise that

7 right. See Rega v. United States, 263 F.3d 18, 20-21 (2d

8 Cir. 2001).

9

10 4. In his post-trial motion, Wint argued that he

11 received ineffective assistance of counsel on various

12 additional grounds. As to these grounds, Wint contends that

13 the district court abused its discretion in resolving his

14 claims without holding a full testimonial hearing. The

15 district court resolved Wint’s motion on the basis of the

16 expanded written record, which included Wint’s allegations,

17 hearing and trial transcripts, and trial counsel’s detailed

18 affidavit and its attachments (including correspondence

19 between Wint and counsel). We conclude that the district

20 court did not abuse discretion. 

21

22 In the context of a 28 U.S.C. § 2255 post-conviction

23 motion, “we have . . . held that when the judge that tried

24 the underlying proceedings also presides over the

25 [proceeding alleging ineffective assistance], a less-than

26 full-fledged evidentiary hearing may permissibly dispose of

27 claims where the credibility assessment would inevitably be

28 adverse to the petitioner.” Puglisi v. United States, 586

29 F.3d 209, 214 (2d Cir. 2009); see Chang v. United States,

30 250 F.3d 79, 86 (2d Cir. 2001) (holding it within district

31 court’s discretion to resolve ineffective assistance claim

32 on basis of submitted papers, including trial counsel’s

33 detailed affidavit contradicting defendant’s assertions). 

34 This district judge had observed Wint’s sworn testimony at

35 the pre-trial suppression hearing, and found Wint to be “an

36 incredible witness.” United States v. Wint, No. 12-cr-85-

37 jgm-01, 2015 WL 2451783, at *5 (D. Vt. May 21, 2015); see

38 also United States v. Wint, No. 12-cr-85-jgm-01, 2014 WL

39 1453350, at *1, *8, *10 (D. Vt. Apr. 14, 2014). 

40 Additionally, Wint made unsworn statements regarding the

41 alleged facts underlying his ineffective assistance claims

42 at a post-trial hearing; and the judge observed Wint’s trial

43 counsel throughout proceedings. The court was within its

6
1 discretion to determine that it had sufficient information

from which to assess Wint’s credibility and claims.5 2

3

4 For the foregoing reasons, and finding no merit in

5 Wint’s other arguments, we hereby AFFIRM the judgment of the

6 district court.

7

8 FOR THE COURT:

9 CATHERINE O’HAGAN WOLFE, CLERK

10

5 Wint never requested a testimonial hearing in the

district court, did not oppose the government’s motion for

an affidavit by trial counsel, and declined to even respond

to that affidavit or to submit a reply to the government’s

opposition to his motion, which incorporated trial counsel’s

affirmations. Cf. Chang, 250 F.3d at 81 (defendant

expressed intent to examine former counsel under oath at

hearing).

7