United States v. Kenneth Coleman ( 2020 )


Menu:
  •            United States Court of Appeals
    for the Fifth Circuit                           United States Court of Appeals
    Fifth Circuit
    FILED
    October 29, 2020
    No. 19-20401                      Lyle W. Cayce
    Clerk
    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    opinion should not be published and is not precedent except under the limited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.
    No. 19-20401
    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).
    2
    No. 19-20401
    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 Faretta 2 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 self-
    representation and the right to counsel).
    3
    No. 19-20401
    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,
    4
    No. 19-20401
    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 re-
    sponse 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 agree-
    ments 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 in-
    terviewed 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, restitu-
    tion, 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.
    5
    No. 19-20401
    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
    6
    No. 19-20401
    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.”
    7
    No. 19-20401
    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.
    8
    

Document Info

Docket Number: 19-20401

Filed Date: 11/3/2020

Precedential Status: Non-Precedential

Modified Date: 11/4/2020