10-4814-cr United States v. Yusuf Abdur-Rahman

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

## AMENDED SUMMARY ORDER
Rulings by summary order do not have precedential effect. Ci tation 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 docu ment filed with this court, a party must cite either the Federal Appendix or an electron ic database (with the notation A 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13 th day of March, two thousand thirteen.
PRESENT: RALPH K. WINTER, PETER W. HALL, Circuit Judges, ALVIN K. HELLERSTEIN, Senior District Judge.*

_____________________________________________ T HE U NITED S TATES OF A MERICA , Appellee , v. No. 10-4814-cr
Y USUF A BDUR -R AHMAN , Defendant-Appellant.

______________________________________________ FOR DEFENDANT-APPELLANT: D ANIEL M ATTHEW P EREZ , Law Offices of Daniel M. Perez, Newton, New Jersey.
* The Honorable Alvin K. Hellerstein, United States Senior District Judge for the Southern District of New York, sitting by designation.FOR APPELLEE: R ACHEL P. K OVNER , Justin S. Weddle, of counsel , Assistant United States Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y. Appeal from a judgment of the United States District Court for the Southern District of New York (Pauley, J. ). UPON DUE CONSIDERATION , IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of convict ion entered on November 17, 2010 is AFFIRMED

. A jury found Yusuf Abdur Rahman guilty of executing and attempting to execute a scheme to defraud Medicaid in violation of 18 U.S. C. § 1347 and 2; committing access device fraud by using New York State Benefit identif ication cards issued to others to fraudulen tly obtain Medicaid benefits in violation of 18 U.S.C. § 1029(a )(5) and 2; acquiring and obtaining controlled substances by misrepresentation, fraud, forger y, deception and subterfuge in violation of 21 U.S.C. § 843(a)(3); aggravated id entity theft in relation to health care fraud; and access device fraud in violation of 18 U.S.C. §§ 1028A and 2. Rahman was sentenced to a term of 101 months’ imprisonment. In his counseled brief, Rahman raises thr ee issues for review. He first challenges the district court’s appointment of counsel despite his request for se lf-representation in violation of the Sixth Amendment of the Constitution. Second, he argues that the district court similarly erred in denying his motion to proceed pro se at sentencing. Third, he furt her contends that his second appointed counsel was ineffective in failing to pr ess, on Rahman’s behalf, Rahman’s request for self-representation. Rahman also filed a pro se brief in which he raises eight additional issues for review. In a separate opinion filed simultane ously with this order, we address Rahman’s pro se3 challenge to the district court’s jury instruction concerning whether health care fraud is a predicate offense under 18 U.S.C. § 1028A. We assume the parties’ familiarity with the factual background and issues on appeal, elaborating only where necessary to explain our decision affirming the judgment of the district

court. I. Right to Self-representation A. Before and During Trial The right to self-representation is unqualifie d if invoked before the start of trial. U.S. ex rel. Maldonado v. Denno , 348 F.2d 12, 15 (2d Cir. 1965). This ri ght derives not from statute but from the United States Constitution. Id. at 15; see also Faretta v. California , 422 U.S. 806 (1975) (holding that under the Sixth Amendment, the accu sed is guaranteed the right of electing to represent himself). A criminal defendant may proceed pro se if he “knowingly, voluntarily, and unequivocally” waives his right to appointed counsel. Williams v. Bartlett , 44 F.3d 95, 99 (2d Cir. 1994). At the time of Rahman’s arrest, Assistant Federal Defender Martin Cohen was assigned to represent Rahman. During Rahman’s arraignm ent on May 5, 2009, Rahman asked the court to replace Cohen with other counsel. The c ourt appointed CJA counsel, Kafahni Nkrumah . One week later, on May 12, 2009, Rahman wrote a letter to the court asking that Atty. Nkrumah be replaced because “[he] need[ed] someone olde r with experience.” During the May 19, 2009 bail hearing, the district c ourt urged Rahman to give Atty. Nkru mah “a chance” and declined to act on Rahman’s request at that time. On May 28, 2009, Ra hman sent a letter to the court stating that Nkrumah’s performance was inadequate and moved to proceed pro se .4 The district court held a conference and, at the suggesti on of Atty. Nkrumah, ordered a competency evaluation of Rahman. On July 20, 2009, Atty. Nkrumah filed a motion to withdraw as counsel and asked the court to ap point new counsel in his place. On July 30, 2009, the district court held a hearin g to discuss the status of Rahman’s case. During the hearing, the district court granted Atty. Nkrumah’s motion, held that Rahman was competent, appointed Charles Hochbaum to repr esent Rahman, and cautioned Rahman that Atty. Hochbaum would be his last cour t-appointed lawyer. Rahman di d not object to the appointment of Hochbaum nor did he reassert his desire to proceed pro se . On appeal, Rahman argues that the district court erred when it failed to consider his request to proceed pro se and instead appointed substitute counsel. Under the circumstances presented we are not persuaded that Rahman’s request was unequivocal. Although clearly styled as a motion for self-representation, Rahman’s letter in support of the motion reiterated the same concerns he expressed in his motion to replace Atty. Nkrumah, i.e., Rahman’s dissatisfaction with the outcome of the bail hearing and his belief that Atty. Nkrumah lacked the experience necessary to represent Rahman. Those concerns were further shared with the psychologist evaluating Ra hman, to whom Rahman expressed the view that his first preference was for new counsel rather than proceeding pro se. We recognize that generally “a defendant is not deemed to have eq uivocated in his desire for self-representation merely because he expresses that view in the al ternative, simultaneously requests the appointment of new counsel, or used it as a threat to obtain private counsel,” Williams , 44 F.3d at 100. Here, however, Rahman’s prior and unresolved motion for new counsel, coupled with his repeated complaints about Atty. Nkrumah and his expresse d wish for substitute counsel, evinced a desire5 not to represent himself but instead to have the district court appoint new counsel. Compare Wilson v. Walker , 204 F.3d 33 (2d Cir. 2000) (defendant’s repeated requests to proceed pro se , notwithstanding the appointment of new counsel, indicated a clear desire to invoke the right to self-representation); see also LaValle v. Artus , 403 Fed. Appx. 607, 609 (2d Cir. 2010) (summary order) (request to proceed pro se at trial was not unequivocal where defendant expressed dissatisfaction with curren t counsel’s trial strategy, stated that he wished to remain represented by counsel, and that self-representa tion was his “last option.”). Even if Rahman’s request to represent hi mself was sincere and une quivocal at the time made, his subsequent statements to the evaluato r and his acceptance, without objection, of Atty. Hochbaum as trial counsel indicated that he wa s vacillating on the issue or had abandoned his request altogether. Wilson , 204 F.3d at 37; see also Williams , 44 F.3d at 99–100 (citing Brown v. Wainwright , 665 F.2d 607, 611 (5th Cir. 1982) (waiver wh en, after initial re quest to proceed pro

se , defendant asked counsel to continue represen tation and then, once again, requested to proceed

pro se on the third day of trial)); United States v. Bennett , 539 F.2d 45 (10th Cir. 1976). Accordingly, on this record we conclude that Rahman’s request was not clear and unequivocal and therefore the district court did not err in granting Ra hman’s May 12, 2009 motion to replace Atty. Nkrumah. See United States v. Purnett , 910 F.2d 51, 55 (2d Cir. 1990) (“ ‘[C]ourts indulge every reasonable presumption against waiver’ of f undamental constitutional rights[.]”) (quoting Johnson v. Zerbst , 304 U.S. 458, 464 (1938)); see also United States v. Frazier-El , 204 F.3d 553, 559 (4th Cir. 2000) (“[W]e must ascribe a constitutional prim acy to the right to counsel because this right serves both the individual and collective good, as opposed to only the individual interests served by protecting the right of self-representati on.” (internal quotation marks omitted)).6 B. Sentencing Rahman also asserts that the distri ct court erred in denying his motion for self-representation with respect to sentencing. It is well accepted that a defendant who exercises his right to appear pro se is not permitted to complain later about the quality of his own defense or raise an ineffective assistance of counsel claim. McKaskle v. Wiggins , 465 U.S. 169, 177 n.8 (1984) (citing Faretta , 422 U.S. at 834, n.46). The record reveals that Rahman was unwilling to waive a claim of ineffective assi stance of counsel from the point of self-representation forward. Accordingly, we find no error with the district court’s denial of Rahman’s motion. II. Ineffective Assistance of Counsel Rahman next argues that Atty. Nkrumah pr ovided ineffective assistance of counsel in moving to withdraw and requesting the appointment of substitute counsel rather than pressing Rahman’s motion for self-repres entation. Rahman also challe nges Atty. Nkrumah’s suggestion, in the first instance, that Rahman undergo a competency evaluation. Under the familiar Strickland standard, Atty. Nkrumah’s request for substitute counsel was not objectively unreasonable and did not adversely affect the proceedings. Strickland v. Washington , 466 U.S. 668, 688 (1984). Furthermore, we take no issue w ith the request for a competency hearing, 18 U.S.C. § 4241, and conclude that the district court, in continuing to have Rahman represented by counsel until the resolution of the competency determination, act ed within its discretion. Purnett, 910 F.2d at 54–55. III. Rahman’s Pro Se Appeal Rahman, in his pro se brief, raises eight additional issu es for review. Rahman argues that Congress has not authorized cumulative punishment for violating federal h ealth care statutes; all7 four counts of the indictment ar e multiplicitous and violate the Fi fth Amendment; he was deprived of his right to a speedy trial; the court lacked su bject matter jurisdiction over his case because the defrauded Medicaid program was no t a federal health care program; the district court was biased; the jury instructions were erroneous; the evidence produced at trial was in sufficient to convict on counts 2 and 4 of the indictment; and the district court abused its discretion in imposing certain sentencing enhancements. We review de novo a preserved claim that the charges were multiplicitous. United States v. Mejia , 545 F.3d 179, 204 (2d Cir. 2008). Multiplicity is found where an indictment “charges in separate counts two or more crimes, when in law and fact, only one crime has been committed,” United States v. Handakas , 286 F.3d 92, 97 (2d Cir. 2002) (overruled on other grounds). We consider “whether each [count] requires proof of a fact which the other does not.” United States v. Finley , 245 F.3d 199, 205 (2d Cir. 2001) (int ernal quotation marks omitted); see also Blockburger v. United States , 284 U.S. 299, 304 (1932). The charges of conviction are not multiplicitous and do not result in a violation of the Constitution’s double jeopardy clause. The counts charged in the indictment—health care fr aud, access device fraud, and obtaining controlled substances by fraud—each required pr oof of at least one fact that the others did not. 18 U.S.C. § 1347; 18 U.S.C. § 1029(a)(5); 21 U.S.C. § 843(a)(3). Nor does the charge of aggravated identity theft violate the double jeopardy clause because cumulative punishment is authorized for that crime. See 18 U.S. § 1028A(a)(1) and (c); see also Flores-Figueroa v. United States , 556 U.S. 646, 648 (2009). Rahman has not identified a Speedy Trial Act violation. We review for abuse of discretion the district court’s determination that the ends of justice warrant the exclusion of time in8 the calculation of mandated time frames. United States v. Beech-Nut Nutrition Corp. , 871 F.2d 1181, 1197–98 (2d Cir. 1989). Each instance that the district court excluded time, the exclusion was either consented to or within the court’s di scretion upon a finding that th e ends of justice were served by taking such action. That determination is entrusted to the court, not the parties, Parisi v. United States , 529 F.3d 134, 140 (2d Cir. 2008), and we hold that the district court did not abuse its discretion in excluding time, notwithstanding Rahman’s objection, to allow for production and discovery, to resolve the matter of Rahman’s comp etency, and to enable new defense counsel to prepare pre-trial motions. Rahman also challenges the sufficiency of the evidence produced at trial to demonstrate his guilt on the charges of health care fraud and acces s device fraud. Upon our independent review of the trial record, we conclude that there was ampl e evidence to sustain the jury’s verdict on each

count. See United States v. Gagliardi , 506 F.3d 140, 149–50 (2d Cir. 2007). We have considered Rahman’s remaining cl aims regarding his arrest , the district court’s jurisdiction and alleged bias, a nd his challenges to the sentence imposed, and we determine that each is without merit. For the reasons st ated above and in the accompanying per curiam opinion, the judgment of conviction is AFFIRMED.
FOR THE COURT: Catherine O = Hagan Wolfe, Clerk