United States v. Mamdouh Mahmud Salim
2012 U.S. App. LEXIS 18034
| 2d Cir. | 2012Background
- Salim was imprisoned at the MCC awaiting trial in United States v. Usama Bin Laden; on November 1, 2000 he planned to take a guard's keys to attack his lawyers if necessary.
- In the MCC, Salim and cellmate Mohamed assaulted Corrections Officer Louis Pepe, injuring him severely and taking his keys.
- Salim pled guilty on April 3, 2002 to conspiracy to murder and attempted murder of a federal official, resolving those charges without a Sentencing Guidelines understanding.
- The initial sentencing on May 3, 2004 departed upward from the Guidelines, resulting in a 384-month term based on cruelty, a broader scheme against counsel, and coercion aspects.
- On remand after Booker and Crosby, the district court later resentenced Salim; the government sought a life sentence under the terrorism enhancement, and Salim’s counsel proposed waiving appearance.
- Prior to resentencing, the district court permitted Salim to waive appearance via videoconference, accepting a defense letter and then conducting a live colloquy; Salim appeared by video.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to be present at resentencing | Salim (Salim) contends videoconference violated presence right; waiver not proven. | Salim argues the waiver was involuntary and based on fear of abuse; government failed to prove knowing waiver. | Waiver not proven; plain error analysis applied; no prejudice established. |
| Validity of counsel's waiver by letter | Letter from counsel attempted waiver on Salim's behalf but lacked indicia of knowledge/voluntariness. | Counsel may waive presence on defendant’s behalf, but waiver must still be knowing and voluntary. | Counsel’s letter did not establish a knowing/voluntary waiver. |
| Waiver via videoconference colloquy | Salim’s waiver was premised on fear of abuse; not voluntary; district court failed to assess reasonableness of fears. | Court conducted a live inquiry; Salim affirmed waiver, albeit citing fear as reason. | Waiver not proven voluntary; district court failed to validate fears; nonetheless not reversible error under plain-error review. |
| Prejudice/Plain error standard | Erroneous admission of waiver constitutes plain error affecting substantial rights and integrity of proceedings. | No sufficient prejudice shown; resentencing outcome would be the same. | Salim failed to show that presence would have changed the outcome; plain-error relief denied. |
| Reasonableness of resentence | Life sentence on remand was procedurally unreasonable given advisory Guidelines. | District court correctly treated Guidelines as advisory and weighed 3553(a) factors; terrorism enhancement valid. | Life sentence not procedurally unreasonable; district court properly considered applicable factors and the terrorism enhancement. |
Key Cases Cited
- United States v. Arrous, 320 F.3d 355 (2d Cir. 2003) (right to be present at re-imposed sentence; presence requirement)
- United States v. DeMott, 513 F.3d 55 (2d Cir. 2008) (plain-error framework for presence error)
- United States v. Pagan, 785 F.2d 378 (2d Cir. 1986) (prejudice standard for erroneous deprivation of right to be present)
- Faretta v. California, 422 U.S. 806 (1975) (right to self-representation; requirement of knowing waiver)
- Boykin v. Alabama, 395 U.S. 238 (1969) (waiver of rights must be voluntary and intelligent)
- Dorvee v. United States, 616 F.3d 174 (2d Cir. 2010) (terrorism enhancement discussion; empirical basis for guidelines)
- United States v. Marcus, 130 S. Ct. 2159 (2010) (plain-error review standard; correction of non-preserved errors)
- United States v. Williams, 241 F. App’x 681 (2d Cir. 2007) (presence at sentencing; videoconference considerations)
- United States v. Tureseo, 566 F.3d 77 (2d Cir. 2009) (record inquiry for waiver of presence)
- United States v. Lynch, 92 F.3d 62 (2d Cir. 1996) (government bears burden to prove waiver by preponderance)