United States Court of Appeals

for the Fifth Circuit

No. 19-20401

United States of America, 

Plaintiff—Appellee,

versus

Kenneth J. Coleman, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CR-156-1

Before Jones, Haynes, and Ho, Circuit Judges.

Per Curiam:*

Kenneth Coleman appeals his convictions for several financial and tax 

crimes, claiming that his waiver of counsel was invalid and that the district 

court should have honored his subsequent reassertion of the right to counsel. 

We find that his waiver of counsel was valid, and that his subsequent 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 29, 2020

Lyle W. Cayce

Clerk
No. 19-20401

2

reassertion of the right to counsel would have delayed his trial, so the 

judgment of the district court is AFFIRMED.

I. Background

A jury convicted Kenneth Coleman of several financial and tax crimes 

arising from a scheme in which prescription drugs were purchased cheaply 

from Medicaid patients and resold for large concealed profits on which taxes 

were not paid. Coleman represented himself at trial. His pro se defense 

theory was based on the proposition that the court lacked jurisdiction over 

him due to his status as Rahsaan Malik Bey, a “Moorish American National” 

and member of the “Moorish Divine and National Movement of the 

World.”1

Coleman’s first lawyer was Richard Kuniansky, appointed in 

September 2017. Kuniansky was allowed to withdraw due to a conflict of 

interest arising from his prior representation of a potential witness.

Coleman’s next appointed counsel was Wendell Odom. Trial was set 

for August 8, 2018. On July 20, Coleman moved to replace Odom on the 

ground that Odom’s representation was unsatisfactory. The Government 

opposed the motion on the ground that it was a ploy to delay the trial. After 

an unrecorded ex parte hearing on Odom’s performance, the court denied 

1 In support of his argument that the court lacked jurisdiction, Coleman asserted 

that “descendants of the Moorish Empire” were not citizens of the “Union States Rights 

Republic (U.S.A.),” and that — pursuant to the “The Free Moorish American Zodiac 

Constitution” and a treaty between the United States and the Kingdom of Morocco — he 

was therefore not subject to taxation or the civil or criminal jurisdiction of United States 

courts. Coleman further claimed that the United States is a corporate entity which “can 

not be an injured party,” and that the district court was required to produce a “certified 

delegation of authority order.”

Coleman’s approach is like that of defendant Mesquiti, who also claimed he was 

part of a “sovereign citizen” movement “not subject to state or federal statutes and 

proceedings.” United States v. Mesquiti, 854 F.3d 267, 269 (5th Cir. 2017).
No. 19-20401

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the motion but granted an opposed motion to continue the trial until 

October 26. Coleman re-urged his motion for substitution of counsel and 

noted that he had filed a state bar grievance against Odom. The case was 

transferred to another judge and the new court initially denied the re-urged 

motion. But then Odom filed a motion to withdraw. At a hearing on 

September 21, Odom said he wanted to withdraw due to Coleman’s 

grievance. Gerardo Montalvo replaced Odom.

At this point, just prior to a status conference on October 2, Coleman 

appears to have adopted the strategy to challenge the court’s jurisdiction. At 

that conference, Coleman announced that Montalvo would not be 

representing him because Coleman was a Moorish American National, and 

Montalvo was not. Coleman also insisted that he was no longer Kenneth 

Coleman but Rahsaan Malik Bey, and he presented documents intended to 

challenge the district court’s jurisdiction.

Consequently, on October 11, the court held a Faretta2 hearing to 

determine if Coleman was validly waiving his right to counsel and intending 

to represent himself at trial. Coleman stated that he studied law at a law firm 

but had never represented himself. The court ascertained that Coleman 

understood the charges against him and the possible penalties upon 

conviction. Coleman said he was “vaguely” familiar with the Federal Rules 

of Evidence and “somewhat” familiar with the Federal Rules of Criminal 

Procedure. The court “strongly urge[d]” Coleman not to represent himself. 

Then the following colloquy took place:

THE COURT: Now, in light of the penalties that you 

could suffer if you’re found guilty and in light of all of the 

difficulties of representing yourself, do you still desire to 

2 See Faretta v. California, 422 U.S. 806 (1975) (addressing the right of selfrepresentation and the right to counsel).
No. 19-20401

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represent yourself and to give up your right to be represented 

by a lawyer?

THE DEFENDANT: Yes.

THE COURT: Is your decision entirely voluntary?

THE DEFENDANT: Under threat, duress, and 

coercion.

THE COURT: Okay. Is your decision entirely 

voluntary to represent yourself?

THE DEFENDANT: Yes.

The court found that Coleman had “knowingly and voluntarily waived the 

right to counsel,” and he was allowed to represent himself at trial.

Montalvo agreed to act as standby counsel. The trial was set to begin 

on November 5, 2018. On October 18, Coleman then filed an “Affidavit of 

Fact” in which he recanted the waiver of his right to counsel and denied 

waiving any rights. The Government opposed the reappointment of counsel.

Ten days before trial, on October 26, the court held another hearing 

at which Coleman asked that Montalvo be re-appointed full counsel for trial. 

The court asked Montalvo, “if you were to be willing to accept appointment 

as fully-appointed counsel, would you be prepared to try this case on the 

current timeline, jury selection on Monday, November 5th? It is just a yes or 

a no.” Montalvo answered “no.” The court then summarized the 

proceedings, starting with the indictment in March 2017. The court noted 

three continuances and three appointments of attorneys experienced in 

white-collar criminal defense, two of whom were removed on Coleman’s 

insistence. The court also recounted the Faretta hearing at which Coleman 

validly waived his right to counsel. Finally, the court said:

I have now made an inquiry of Mr. Montalvo, that he 

would not be ready, having not examined anything due to 

Mr. Coleman denying any kind of contact with Mr. Montalvo, 
No. 19-20401

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to proceed to jury selection based upon the fourth continuance 

in this case. Therefore, I find Coleman’s motion to withdraw 

his waiver of appointed counsel should be denied.

This case is going to trial on schedule, and that’s all I 

have got to say. It will go.

In its written order, the district court found that Coleman’s purpose was 

delay and it concluded that granting appointment of counsel would require 

delay.

At trial, Coleman repeatedly stated that he was “not ready” in response to all of the court’s questions. However, he cross-examined some 

witnesses about their involvement in the scheme, the ownership of business 

entities or bank accounts relevant to the scheme, and their possible agreements with the Government. He also called a defense witness to testify about 

the ownership and operation of some of the companies.

The jury convicted Coleman on all counts. Coleman refused to be interviewed for the presentence report (PSR) and refused even to receive it. At 

sentencing, he vigorously reasserted his jurisdictional arguments. The court 

varied upward from the advisory guideline range of 235 months to impose a 

total sentence of 360 months, in addition to supervised release, fines, restitution, and forfeiture.

Now represented by appellate counsel, Coleman contends that he did 

not validly waive his right to counsel, and that the district court should have 

honored his subsequent reassertion of the right to counsel.

II. Discussion

Coleman makes two claims. First, he claims that his waiver of counsel 

under Faretta was not knowing and voluntary. Second, Coleman contends 

that the district court violated his right to counsel when the court denied his 

motion for reappointment of counsel, which was heard ten days prior to 

Coleman’s trial. Both are without merit.
No. 19-20401

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A. Initial Waiver of Counsel

Coleman contends that his waiver of counsel under Faretta was not 

knowing and voluntary. He argues that when he told the court that his 

decision to represent himself was “[u]nder threat, duress, and coercion,” the 

court was obligated to inquire further, rather than simply to ask again whether 

the decision was “entirely voluntary.” “Sixth Amendment challenges to the 

validity of a waiver of counsel are reviewed de novo.” United States v. 

Mesquiti, 854 F.3d 267, 271 (5th Cir. 2017).

As the Government correctly observes, by asserting force, coercion, 

and duress, Coleman was simply repeating a phrase that was a standard part 

of his jurisdictional challenge to the court’s authority. Coleman’s reiteration 

of this phrase does not establish that his decision to proceed pro se was 

involuntary. Cf. Mesquiti, 854 F.3d at 270-71, 274-75 (declining to find that 

general objections to the court’s authority showed that the waiver of counsel 

was invalid). After reasserting his jurisdictional challenge, the government 

asked again if his decision was voluntary, and he said yes. We therefore find 

that his initial waiver of counsel was knowing and voluntary.

B. Reassertion of Right to Counsel

In any event, “a defendant who waives the right to counsel is entitled 

to withdraw that waiver and reassert the right,” though the right is “not 

unqualified.” United States v. Taylor, 933 F.2d 307, 311 (5th Cir. 1991); see 

United States v. Smith, 895 F.3d 410, 421 (5th Cir. 2018); United States v. 

Pollani, 146 F.3d 269, 273 (5th Cir. 1998). Thus, even though we deem his 

initial waiver of counsel valid, this court must also inquire whether the 

district court should have honored Coleman’s reassertion of the right to 

counsel. See Smith, 895 F.3d at 421-22; Pollani, 146 F.3d at 273-74.

Coleman contends that the district court violated his “Sixth 

Amendment right to counsel when the court denied his motion for 
No. 19-20401

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reappointment of counsel, which was heard ten days prior to Coleman’s 

trial.” As noted, the right to withdraw a waiver of counsel and reassert the 

right to counsel “is not unqualified.” Smith, 895 F.3d at 421. A defendant is 

“not entitled to choreograph special appearances by counsel, or repeatedly 

to alternate his position on counsel in order to delay his trial or otherwise 

obstruct the orderly administration of justice.” Id. (quoting United States v. 

Taylor, 933 F.2d at 311.) However, Coleman “was entitled to representation 

to the extent that standby counsel could take over representation without 

interrupting the orderly processes of the court.” Smith, 895 F.3d at 422 

(internal quotation marks and citation omitted).

As Pollani held and Smith recognized, the right to counsel is qualified 

by a court’s valid but entirely distinct interest in avoiding delay. See Smith, 

895 F.3d at 421 (featuring a defendant reasserting his right to counsel); 

Pollani, 146 F.3d at 272-73 (same). Before denying a motion for counsel, a 

trial court must examine “whether appointing counsel will require delay.”

Smith, 895 F.3d at 421; United States v. Pollani, 146 F.3d at 273.

In Polani, the standby counsel was “retained and ready to act as trial 

counsel.” Pollani, 146 F.3d at 272. Therefore, our court found that “there 

is no reason to think [that the lawyer’s] appearance would impede the orderly 

administration of justice. Quite to the contrary, there is every reason to 

believe that the trial would have proceeded much more efficiently if Pollani 

had been represented by counsel rather than himself.” Id. at 273. And in 

Smith, we found that it “is not apparent from this record that elevating 

standby counsel to counsel would have generated more delay than Smith’s 

unskilled efforts to represent himself...The record demonstrates that 

[standby counsel] was familiar with the case, having been appointed to 

represent Smith prior to his Faretta hearing and having handled some pretrial 

telephone conferences without Smith. On these facts, standby counsel may 

have been prepared to take over Smith’s defense without delay.”
No. 19-20401

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Here, however, Coleman refused to even speak with Montalvo until 

the morning of the day he asked for Montalvo to be elevated to full counsel, 

and Coleman had even threatened to file a bar grievance against Montalvo. 

Montalvo was unable to examine anything due to Coleman denying any kind 

of contact. The district judge asked Coleman’s standby lawyer if he could be 

prepared to serve as full counsel in 10 days. The lawyer said no. Further, the 

district judge issued a written order finding that “granting Coleman’s 

request to re-appoint counsel at this stage would require delay.” Therefore,

this case is distinguishable from Pollani and Smith. This case was a complex 

white collar criminal trial that Montalvo was unprepared for because

Coleman had denied Montalvo almost all contact. Montalvo’s elevation to 

full counsel would have necessitated delay, and the trial court so found in a 

written order. Therefore, Coleman was not unconstitutionally deprived of 

his right to counsel when the district court declined to elevate Montalvo to 

full counsel.

III. Conclusion

Coleman’s initial waiver of counsel was knowing and voluntary, and 

his request for elevation of standby counsel was properly denied because it 

would have necessitated his delay. Accordingly, the judgment of the district 

court is AFFIRMED.