United States v. Zaid Wakil , 700 F. App'x 685 ( 2017 )

FILED
NOT FOR PUBLICATION
OCT 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50380
Plaintiff-Appellee, D.C. No.
2:12-cr-00527-GW-12
v.
ZAID ABDUL WAKIL, AKA Alvin MEMORANDUM*
Boatright,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted October 4, 2017
Pasadena, California
Before: KLEINFELD, GRABER, and CHRISTEN, Circuit Judges.
Zaid Wakil appeals his jury conviction for conspiracy to possess with intent
to distribute cocaine in violation of 21 U.S.C. § 846, and three counts of possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Wakil did not knowingly and intelligently waive his right to counsel
because the district court failed to ensure that he understood the possible penalties
he faced. See United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004)
(setting forth the conditions that need to be met in order for a Faretta waiver to be
deemed valid).
2. Contrary to the government's suggestion, remand is inappropriate. In
limited circumstances, we may remand if “the record suggests that there is
additional evidence available about the adequacy of a waiver.” United States v.
Kimmel, 672 F.2d 720, 722 (9th Cir. 1982). But remand is the exception, not the
rule, and it is not appropriate here because nothing in the record suggests that there
are undiscovered facts showing that Wakil was aware of the possible penalties at
the time of his waiver. We therefore reverse the district court’s judgment and
remand for a new trial.
3. It is unnecessary to reach Wakil’s remaining claims in light of the
disposition of this case.
REVERSED and REMANDED.
2