15-3075-cr United States v. Wint



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 24 th** **day of June, two thousand sixteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **REENA RAGGI,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 15-3075-cr** 15 16 **FELICIA YOUNG,** 17 **Defendant ,**  18 19 **ROYAN WINT, AKA G-ROY,** 20 **Defendant-Appellant**

**.** 21
- - - - - - - - - - - - - - - - - - - -X 22 23 **FOR APPELLANT:** ELIZABETH D. MANN, Tepper 24 Dardeck Levins & Mann, LLP, 25 Rutland, Vermont. 26 27

1**FOR APPELLEE:** GREGORY L. WAPLES, Assistant 1 United States Attorney (Paul J. 2 Van De Graaf, Assistant United 3 States Attorney, on the brief ), 4 forEric S. Miller, United 5 States Attorney for the District 6 of Vermont, Burlington, Vermont. 7 8 Appeal from a judgment of the United States District 9 Court for the District of Vermont (Murtha, J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the judgment of the district court be 13
**AFFIRMED**

. 14 15 Royan Wint, aka G-Roy, appeals from the judgment of the 16 United States District Court for the District of Vermont 17 (Murtha, J. ), sentencing him principally to 60 months’ 18 imprisonment after convictions for (1) conspiracy to 19 distribute and to possess with intent to distribute 28 grams 20 or more of cocaine base, cocaine, and oxycodone in violation 21 of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B); and (2) 22 possession with intent to distribute 28 grams or more of 23 cocaine base, cocaine, and oxycodone in violation of 21 24 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). We assume the 25 parties’ familiarity with the underlying facts, the 26 procedural history, and the issues presented for review. 27 28 **1.** Wint argues that the evidence at trial was 29 insufficient to establish beyond a reasonable doubt that he 30 was involved in the distribution of narcotics. “A defendant 31 challenging the sufficiency of the evidence bears a heavy 32 burden . . . .” United States v. Kozeny , 667 F.3d 122, 139 33 (2d Cir. 2011). We “view the evidence in the light most 34 favorable to the government, crediting every inference that 35 could have been drawn in the government’s favor, and 36 deferring to the jury’s assessment of witness credibility 37 and its assessment of the weight of the evidence.” United 38 States v. Coplan , 703 F.3d 46, 62 (2d Cir. 2012) (citations 39 omitted). We must uphold the judgment if “ any rational 40 trier of fact could have found the essential elements of the 41 crime beyond a reasonable doubt.” Id. (quoting Jackson v. 42 Virginia , 443 U.S. 307, 319 (1979)). 43 44 Viewed in the light required, the evidence was more 45 than sufficient to establish Wint’s intent to distribute--it 46 was overwhelming. Law enforcement officers who executed a 47

2search warrant at Wint’s residence found approximately 70 1 grams of cocaine base, 173 grams of powder cocaine, 2 oxycodone pills, over $11,000 in cash, and a digital scale 3 with white powder in Wint’s bedroom. Wint confessed to 4 narcotics possession and distribution. And three witnesses 5 corroborated Wint’s confession, testifying, inter alia , that 6 Wint supplied them and others with oxycodone and cocaine to 7 distribute. One of these witnesses, Wint’s co-defendant, 8 testified that she had traveled with Wint to New York City 9 and Albany where Wint obtained cocaine and oxycodone from 10 two suppliers, and that she had seen Wint packaging crack 11 cocaine for distribution. 1 12 13 Wint argues that the testimony of the non-law 14 enforcement witnesses was unreliable, Br. of Appellant 26; 15 Reply 9-10, but we must assume that the jury credited it. 16 SeeUnited States v. Hamilton , 334 F.3d 170, 179 (2d Cir. 17 2003); United States v. LeRoy , 687 F.2d 610, 616 (2d Cir. 18 1982). 19 20 **2.** On the eve of jury selection, Wint’s appointed 21 lawyer--his third--moved to withdraw and to be replaced with 22 new appointed counsel, and for a continuance. The district 23 court denied the motion, and Wint’s third lawyer continued 24 to represent him through the close of and immediately after 25 trial. Wint acknowledges that the district court acted 26 within its discretion in denying the motion to withdraw, but 27 he argues that the district court was “required to advise 28 the defendant of his Constitutional right to make an 29 election whether to proceed with court-appointed counsel or 30 to proceed pro se .” Br. of Appellant 9-10. 31 32 A criminal defendant has a constitutional right to 33 waive the right to counsel and to represent himself. 34 Faretta v. California , 422 U.S. 806 (1975); see also28 35 U.S.C. § 1654. Wint does not contend that he ever requested 36 to appear pro se , and he cites no authority for the 37

1A 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)).

3proposition that a court must affirmatively ensure that a 1 defendant is aware of this right. 2 3 Even assuming that when a district court denies a 4 motion to withdraw, a defendant has some right to be 5 informed that he may choose to appear pro se rather than 6 continue with appointed counsel, there was no prejudicial 7 error here. 2The record reflects Wint’s awareness of the 8 right of self-representation. The possibility of Wint 9 representing himself was mentioned several times in Wint’s 10 presence at the hearing on the motion to withdraw, and the 11 district court specifically asked Wint whether he wished to 12 represent himself; Wint declined. 3 13

2Harmless 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.

3In 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 onlythat Wint preferred the appointment of new counsel to selfrepresentation, and that once Wint’s motions were denied he may have thenpreferred to proceed pro se rather than with

41 **3.** After the close of the government’s case, Wint’s 2 counsel conferred with Wint, and advised the court that Wint 3 had chosen not to testify in his own defense. Wint contends 4 that counsel gave ineffective assistance by failing to 5 advise him that the district court would allow him overnight 6 to decide whether to testify, and that if he did choose to 7 testify, he could do so the following morning rather than 8 immediately. He further contends that his testimony would 9 have affected the outcome of the case. 10 11 To prevail on a claim of ineffective assistance of 12 counsel, a defendant must (1) “show that counsel’s 13 representation fell below an objective standard of 14 reasonableness”; and (2) “affirmatively prove prejudice.” 15 Strickland v. Washington , 466 U.S. 668, 688, 693 (1984). 16 The district court ruled that Wint failed to make either of 17 these showings. 4 18 19 We agree that Wint failed to show objectively 20 unreasonable performance; we therefore need not consider 21 prejudice. The district court found Wint’s factual 22 allegations incredible and instead credited trial counsel’s 23 affidavit, which stated, inter alia , that counsel had 24 advised Wint against testifying but never told him that he 25 could not do so; that Wint had been informed of his right to 26 testify and stated that he would not testify; that counsel 27 informed Wint that the court had suggested Wint could wait 28 until the following morning to finally decide whether to 29 testify, but Wint said that his decision would be the same 30 the next day; and that Wint never told counsel that he 31 wanted to testify the next day when he would be more rested. 32 We defer to the district court’s factual findings, which are 33

appointed counsel. This is an implausible reading of the transcript. In any event, Wint obviously knew that pro se status was an option. See alsoSupp. 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”).

4Both 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).

5not clearly erroneous. See Contino v. United States , 535 1 F.3d 124, 127 (2d Cir. 2008). 2 3 Wint’s trial counsel fulfilled his duty of effective 4 assistance to advise Wint that he had the right to testify, 5 and to provide advice regarding whether to exercise that 6 right. SeeRega v. United States , 263 F.3d 18, 20-21 (2d 7 Cir. 2001). 8 9 **4.** In his post-trial motion, Wint argued that he 10 received ineffective assistance of counsel on various 11 additional grounds. As to these grounds, Wint contends that 12 the district court abused its discretion in resolving his 13 claims without holding a full testimonial hearing. The 14 district court resolved Wint’s motion on the basis of the 15 expanded written record, which included Wint’s allegations, 16 hearing and trial transcripts, and trial counsel’s detailed 17 affidavit and its attachments (including correspondence 18 between Wint and counsel). We conclude that the district 19 court did not abuse discretion. 20 21 In the context of a 28 U.S.C. § 2255 post-conviction 22 motion, “we have . . . held that when the judge that tried 23 the underlying proceedings also presides over the 24 [proceeding alleging ineffective assistance], a less-than 25 full-fledged evidentiary hearing may permissibly dispose of 26 claims where the credibility assessment would inevitably be 27 adverse to the petitioner.” Puglisi v. United States , 586 28 F.3d 209, 214 (2d Cir. 2009); see Chang v. United States
, 29 250 F.3d 79, 86 (2d Cir. 2001) (holding it within district 30 court’s discretion to resolve ineffective assistance claim 31 on basis of submitted papers, including trial counsel’s 32 detailed affidavit contradicting defendant’s assertions). 33 This district judge had observed Wint’s sworn testimony at 34 the pre-trial suppression hearing, and found Wint to be “an 35 incredible witness.” United States v. Wint , No. 12-cr-85- 36 jgm-01, 2015 WL 2451783, at *5 (D. Vt. May 21, 2015); see 37 alsoUnited States v. Wint , No. 12-cr-85-jgm-01, 2014 WL 38 1453350, at *1, *8, *10 (D. Vt. Apr. 14, 2014). 39 Additionally, Wint made unsworn statements regarding the 40 alleged facts underlying his ineffective assistance claims 41 at a post-trial hearing; and the judge observed Wint’s trial 42 counsel throughout proceedings. The court was within its 43

6discretion to determine that it had sufficient information 1 from which to assess Wint’s credibility and claims. 5 2 3 For the foregoing reasons, and finding no merit in 4 Wint’s other arguments, we hereby **AFFIRM** the judgment of the 5 district court. 6 7 FOR THE COURT: 8 CATHERINE O’HAGAN WOLFE, CLERK 9 10

5Wint 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