UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LINDON AMEDE, Defendant-Appellant.
No. 18-11172
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
October 8, 2020
D.C. Docket No. 0:17-cr-60053-DPG-1
[PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.
After a jury trial, Lindon Amede appeals his conviction and sentence of 121 months’ imprisonment for attempted possession with intent to distribute five kilograms of cocaine,
I. FACTUAL BACKGROUND
A. Initial Investigation
In December 2016, the Drug Enforcement Administration (“DEA“) and the Broward County, Florida Sherriff‘s Office initiated a reverse sting operation when a confidential source—referred to as “Troy“—advised Detective Gonzalo Gandarillas that “some subjects out of Trinidad were looking to buy cocaine here in South Florida.” To investigate the lead, Gandarillas posed as an undercover drug trafficker and told Troy to give an undercover phone number to the potential buyers.
B. Drug Deal Negotiations with Chang and Amede
On December 17, 2016, Detective Gandarillas received and recorded a call from Rasal Chang, from a Trinidadian area code. When Gandarillas answered, Chang told him that “I‘m calling on behalf of Troy.” Chang said he spoke with Troy considering the “logistics” and “figures.” Then, Chang said: “I spoke to my guy” who was “trying to come over” in the next few days. Chang, as the buyer, stressed, “we will take everything, you understand, everything you have, take it . . . between 10 and 20 at a time.” In other words, they would take all of the available cocaine in increments of 10 to 20 kilograms.
On December 21, 2016, Chang spoke on the phone with Detective Gandarillas and told him “my guy . . . will be there tomorrow” and would be staying until New Years. Chang confirmed that they would be buying “between 10 and 20.” Gandarillas directed Chang to send his “guy” to Fort Lauderdale, Florida. Chang said his “guy” had Gandarillas‘s phone number and would call when he arrived.
The next day, on December 22, 2016, Chang drove Amede to the airport in Trinidad. Later that same day, Chang called Gandarillas to tell him that “my guy” had departed that morning and would arrive later that day. Gandarillas told Chang to have his guy call when he arrives. Chang again confirmed the amount and price of the cocaine. Chang said he was going to buy the cocaine in bulk for $26,000 per kilogram.
When Amede arrived in Fort Lauderdale later that day, he called Detective Gandarillas. Gandarillas answered and said, “Good evening guy.” Amede responded, “It‘s L. I‘m finally here, this is Troy, Troy‘s guy, just got settled in.” When Gandarillas asked for Amede‘s name, Amede said he went by “Lin,” “L,” or “Yankee
Through a series of phone calls among Detective Gandarillas, Chang, and Amede, the parties rescheduled the drug deal for January 2017. Chang called Gandarillas and provided flight information for Amede‘s arrival in Fort Lauderdale on January 5, 2017. Gandarillas was directed to pick Amede up from the airport.
As Amede conceded at trial, he flew to Florida knowing that he was there to verify and negotiate the cocaine deal. Upon his arrival, Amede called Gandarillas to provide his location and a description of what he was wearing so they could identify each other. Gandarillas spotted Amede and picked him up. Unbeknownst to Amede, Gandarillas and his team set up surveillance at the airport, and Gandarillas had audio and video recording devices in his car and on his person. Detective Gandarillas and Amede drove to a restaurant. On the way to the restaurant, and during the course of dinner, Amede discussed various topics, including: (1) purchasing over a dozen kilograms of cocaine, which Amede referred to as “batteries“; (2) the quality, purity, and cost of the cocaine; (3) logistics for transporting the cocaine; and (4) changing phone numbers to avoid detection by law enforcement. Gandarillas dropped Amede off at his hotel. Later that night, Amede called Gandarillas to tell him that it would take four to seven days to get the buyers and cash lined up.
On January 7, 2017, Amede and Detective Gandarillas met again, and Amede discussed the buyers he had in Miami, Atlanta, and North Carolina who wanted to see the product. They continued negotiations but did not complete the transaction. Afterwards, they spoke on the phone to set up another meeting.
On January 11, 2017, Gandarillas picked Amede up in his car and they drove to a hotel parking lot. Gandarillas and another undercover officer, Detective Pablo Perez, planned to stage a “surprise flash,” during which a seller—without notice—shows a prospective buyer a sample of cocaine for quality inspection. Once again, the surveillance team was positioned inside and around the hotel, and Gandarillas had audio and video recording devices in his car and on his person.
When Detective Perez arrived at the scene, he got into the car with Detective Gandarillas and Amede and showed Amede a kilogram of cocaine. Amede tasted a sample on his gums and indicated that the sample was good. Amede again discussed his prospective buyers and completing the deal. Detective Perez got out of the car, and Gandarillas dropped Amede off at his hotel.
Subsequently, Detective Gandarillas and Amede spoke several times on the phone about Amede‘s buyers, whether Amede had the purchase money, the amount and quality of the drugs, and how the transaction had been delayed several times. Gandarillas also spoke on the phone with Chang, who discussed purchase money and asked if Amede could pay for the cocaine with watches worth $75,000 each. When Gandarillas insisted on cash, Amede pawned the watches for $125,000. Amede testified that those were his own watches, that he used his own money to pay for the cocaine, and that Chang did not provide him any money for the deal. Eventually, Amede and Chang agreed to purchase five kilograms of cocaine from Gandarillas for $125,000. Amede was to meet Gandarillas
C. January 25, 2017 Cocaine Transaction
On January 25, 2017, Amede met Detective Gandarillas and confidential source Troy at a gas station, which was under video and audio surveillance by law enforcement. Amede arrived driving a van that Chang‘s associates had provided to him. Amede said that he was using this van, which was outfitted to operate as a handicapped van, because, if he got pulled over, he could tell the police that he was a disabled veteran.
When Detective Gandarillas entered the van, Amede showed him a secret compartment containing black plastic bags of cash for the drugs. Gandarillas, satisfied with the purchase money, had Amede follow him and Troy to a warehouse to retrieve the cocaine. Again, the warehouse was under video and audio surveillance by law enforcement, and Gandarillas wore an audio recording device.
The parties arrived at the warehouse, where undercover Detective Perez was waiting. Amede inspected the five kilograms of cocaine and rubbed some on his gums. While Gandarillas and Perez counted the cash, Amede felt relieved, drank a beer, made casual conversation, laughed, made jokes, and talked about future drug deals. Amede brought just under $125,000 in cash for the five kilograms of cocaine.
The parties realized that Amede was short some cash, and Amede said he would sell the five kilograms and use the proceeds to pay the difference. Amede also said he wanted to buy an additional 20 kilograms of cocaine the following day. Amede gave Gandarillas and Perez his watch as both collateral for the balance and a deposit on the additional 20 kilograms of cocaine he would be picking up the next day. Minutes later, a SWAT team entered the warehouse and arrested Amede.
D. Amede‘s Post-Arrest Statements
Following Amede‘s arrest, lead case Agent Brett Palat read Amede his Miranda1 rights, and Amede agreed to provide a statement.2 Amede admitted that he sought to purchase cocaine when he went to South Florida and that he and Chang were going to make about $20,000 on the drug deal.
During the interview, Amede voluntarily participated in two recorded controlled calls, one to Chang and the other to a co-conspirator who had traveled from Jamaica to purchase the cocaine. Amede also gave written consent for the officers to search his various cell phones. The searches revealed that, from December 16, 2016 until January 23, 2017, Amede and Chang regularly messaged each other to discuss deal logistics, to give updates on their whereabouts, and to go over how the meetings went. Throughout their conversations, they spoke amicably to each other, asked how each other was doing, wished each other luck and safety, and gave words of encouragement for their deals to succeed.
E. Amede‘s Duress Defense
At trial, Amede‘s defense was that he was under duress and/or was coerced to participate in the drug deal. Amede testified that he was indebted to Chang and that Chang and his associates—who were part of a terrorist group in Trinidad— forced Amede to be involved in this drug
Amede testified that the terrorist group had threatened him and his family, and his family was in danger in Trinidad. He also spoke of a dangerous man referred to as “RoboCop“—whom he claimed he mentioned in his post-arrest statements. According to Amede, Trinidadian law enforcement was corrupt and had twice mistreated him: (1) in February 2016, the terrorist group set Amede‘s boat on fire, but when he told the Trinidadian police, they arrested him instead; and (2) in November 2016, Trinidadian Coast Guards had kidnapped and beat Amede, but when he filed a police report, no action was taken. Amede claimed that the Trinidadian police later extorted him.
Amede later contradicted himself on several of these points. He testified that Chang was his “friend” and they were “cordial,” Chang was merely a mediator and his associates were more dangerous. Chang and his associates did not hold Amede‘s wife captive while he consummated the drug deal in South Florida. Moreover, Agent Palat testified that, during Amede‘s three-hour post-arrest conversation, Amede never claimed that anyone had threatened him or his family or forced him to purchase the cocaine in the instant drug deal. Agent Palat conceded that Amede did reveal information about the Trinidadian terrorist group, that one of its members, “Derrick,” had killed “RoboCop” and that “Derrick‘s” wife was later beheaded.
Amede admitted that, at no point between December 2016 and his arrest did he ever attempt to contact U.S. law enforcement about any threats made by Chang and his associates. Amede insisted that U.S. law enforcement would not have been able to help his family in Trinidad. Amede did contact the Trinidadian police; however, Amede did not specify whether he did so in relation (1) to the instant forced drug deal between December 2016 and his arrest, or rather (2) to the prior incidents in Trinidad in February or November 2016.
II. TRIAL
A. Indictment, Plea, and Pre-trial Motions
In 2017, Amede was indicted for “knowingly and willfully attempt[ing] to possess with intent to distribute” five kilograms or more of cocaine based on the January 25 drug deal. Amede was appointed counsel and pled not guilty.
Before trial, Amede filed a counseled motion to suppress his post-arrest statements and physical evidence obtained from the search of his cell phones.3 After a hearing, the district court denied the motion. Amede also filed a counseled motion in limine to exclude any recordings, transcripts, or testimony of conversations between
At a pre-trial hearing, the government proffered that its evidence would show that a conspiracy existed between Amede and Chang between December 17 and 22. Namely, during their conversations between December 17 and 22, Chang talked to Gandarillas about the quantity of cocaine he wished to purchase and made numerous references to “my guy” who would be coming to meet with Gandarillas. “[M]y guy” ended up being Amede, who flew to Fort Lauderdale and called Gandarillas to meet up. Plus, Amede admitted that Chang was his co-conspirator, he had numerous phone calls and messages with Chang, and he cooperated against Chang. The district court found the government‘s proffer sufficient and denied Amede‘s motion in limine.
B. Government‘s Case in Chief
During its case in chief, the government presented: (1) the testimonies of Detectives Gandarillas and Perez and another law enforcement officer; (2) the messages between Amede and Chang; (3) the recorded phone calls; (4) the audio and video recordings of the meetings; and (5) photographs of Amede‘s purchase money, his watch, the van, and the cocaine. At the close of the government‘s case, Amede moved for a judgment of acquittal under
C. Defense
Next, Amede proffered his duress defense. Outside of the jury‘s presence, Amede‘s court-appointed counsel claimed that Chang and his associates had threatened to hurt Amede and his family in Trinidad if Amede did not complete the drug deal to repay a debt he owed to Chang. The district court agreed with the government that Amede‘s proffer failed to meet the third element of a duress defense. Despite having over 30 days between first entering the country and consummating the drug deal, Amede never sought a legal alternative to participating in the deal, like contacting the U.S. or Trinidadian authorities. Consequently, the district court precluded Amede‘s duress testimony. Amede‘s counsel moved for a mistrial, which the district court denied. But when Amede took the stand to testify before the jury, he testified to the proffered duress evidence, largely without objection.
The defense also called Agent Palat. The defense sought to elicit Agent Palat‘s testimony regarding: (1) why law enforcement failed to record Amede‘s post-arrest statements; (2) whether, in his statements, Amede revealed the events in Trinidad and Chang and his associates’ coercion that led to Amede‘s involvement in the drug deal; (3) whether Agent Palat followed up on Amede‘s allegations; and (4) the contents of the controlled calls Amede made to Chang in Agent Palat‘s presence. The district court ruled that Amede was not to elicit any such testimony because it had already ruled that Amede‘s post-arrest statements were admissible, the fact that the statements were not recorded was otherwise irrelevant, and arguing otherwise would create a false impression. When Agent Palat was called at trial, the defense was able to elicit his testimony about
After the defense rested, Amede renewed his Rule 29 motion, this time on the grounds that the government failed to prove Amede “willfully” and “voluntarily” participated in the drug deal. The district court denied the motion.
In rebuttal, the government recalled Agent Palat and Detective Gandarillas. During Agent Palat‘s rebuttal testimony, the defense was able to elicit his testimony that Amede‘s post-arrest statements were not written down or video or audio recorded. Amede again renewed his Rule 29 motion, which was denied. Amede also renewed his request for the duress jury instruction, which the district court granted because the proffered duress testimony had come in anyway without objection and it should be up to the jury.
D. Jury Instructions and Verdict
The government‘s proposed jury instruction for the attempted possession charge required a mens rea of “knowingly,”4 for which it provided a definition. “Willfully” was not included as a mens rea element, but the proposed instructions did provide a definition for it, albeit in brackets.
At the start of the trial, the district court asked whether Amede had any objections or additions to the government‘s proposed jury instructions, and Amede had no relevant objections. The district court explicitly asked the parties why there was a “willfully” instruction in brackets when it was not an element of the crime. Both sides agreed that the “willfully” instruction should be removed. The district court gave preliminary instructions to the jury, including the “knowingly” but not the “willfully” element, in the instruction for the attempted possession charge. Amede did not object.
At the charge conference, the parties again discussed whether the “willfully” instruction should be included. While Amede‘s counsel initially argued that the jury instructions should mirror the indictment, his counsel did not object to the court‘s mens rea instruction, which the district court actually gave and which did not include “willfully.”
Specifically, the district court instructed the jury that Amede could be found guilty if it was proven beyond a reasonable doubt that: (1) Amede “knowingly intended” to commit the crime of possession with intent to distribute cocaine; and (2) his intent was strongly corroborated by his taking a substantial step toward committing the crime. The substantive crime of possession with intent to distribute required that: (1) Amede “knowingly” possessed the cocaine; (2) he intended to distribute it; and (3) the weight of possessed cocaine was more than five kilograms. The district court instructed the jury that “knowingly” meant that “an act was done voluntarily and intentionally and not because of a mistake or by accident.” The district court also instructed the jury on the elements of the duress defense.
The jury found Amede guilty.
E. Motion for New Trial
After trial, Amede filed a counseled motion for a new trial. His motion argued that the district court erred: (1) in admitting the three recorded phone calls between Chang and Detective Gandarillas that occurred before Amede entered the
III. SENTENCING
Amede‘s Presentence Investigation Report (“PSI“) assigned him a base offense level of 30 plus 2 levels for obstruction of justice based on Amede‘s alleged perjury at trial. Amede‘s total offense level of 32 and criminal history category of I yielded an advisory guidelines range of 121 to 151 months’ imprisonment. While court-appointed trial counsel filed no written PSI objections, Amede filed pro se written objections to the PSI.
At sentencing, Amede initially was represented by newly retained counsel but ultimately proceeded pro se. The district court found that Amede‘s advisory guidelines range was 121 to 151 months and that Amede was subject to a statutory mandatory-minimum sentence of 120 months’ imprisonment. Amede‘s retained counsel made no objections at the hearing.
The district court addressed Amede‘s pro se written objections to the PSI and overruled each as meritless. The district court explained that—after considering the parties’ arguments, the PSI, the advisory guidelines range, and the
IV. MOTION TO EXCLUDE CO-CONSPIRATOR STATEMENTS
On appeal, Amede argues that the district court abused its discretion under
Pursuant to
Amede contends that there was no evidence that he was a member of the conspiracy at the time of the three recorded phone calls because he was never named during those calls and was not yet known to law enforcement. This argument fails because “a co-conspirator‘s declaration made in the course and in furtherance
Regardless, contrary to Amede‘s factual contention, the government established by a preponderance of the evidence that Amede and Chang were involved in a conspiracy at the time of the three recorded phone calls—December 17, 21, and 22, 2016. See Hasner, 340 F.3d at 1274. On December 17, Chang told Gandarillas that Chang worked out logistics and figures with confidential source Troy and that “my guy” would “come over” to meet with Gandarillas soon. On December 21, Chang told Gandarillas that “my guy” would fly to Fort Lauderdale to meet Gandarillas and would call him upon arrival. On December 22, after Chang drove Amede to the airport, Chang called Gandarillas to tell him that “my guy” got on the flight and would arrive later that day.
From as early as December 16, Amede and Chang regularly messaged each other about the logistics of this cocaine deal. And, as Amede admitted at trial, he did indeed fly to Fort Lauderdale on December 22 to verify and negotiate the cocaine deal with Detective Gandarillas. Upon his arrival, Amede called Gandarillas, revealed that he was one of “Troy‘s guy[s]” who had just arrived and settled in, and asked to meet up. From that point on, Amede remained in constant contact with both Chang and Gandarillas to negotiate and eventually consummate the five-kilogram cocaine deal on January 25, 2017.
Therefore, the evidence established that it was more likely than not that—as early as December 17, 2016—Amede was Chang‘s “guy” who would be flying, and did in fact fly, to meet Gandarillas to negotiate and consummate the cocaine deal. The district court did not clearly err in finding this occurred and did not abuse its discretion in admitting the three recorded phone calls as co-conspirator statements made during and in furtherance of the drug conspiracy.
V. JURY INSTRUCTION – CONSTRUCTIVE AMENDMENT
Next, Amede contends that the district court violated his Fifth Amendment rights when it instructed the jury that, to convict Amede, it had to find that he “knowingly“—rather than “knowingly and willfully,” as charged in the indictment—attempted to possess with intent to distribute cocaine. Amede maintains that the district court‘s omission of “willfully” was an impermissible constructive amendment of the indictment constituting per se reversible error.6
Under the Fifth Amendment, “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” United States v. Madden, 733 F.3d 1314, 1317-18 (11th Cir. 2013). “[A] defendant can be convicted only of a crime charged in the indictment” and “[t]he district court may not constructively amend the indictment.” Id. at 1318. The district court “constructively amend[s]” the
471 U.S. 130, 144, 105 S. Ct. 1811, 1819 (1985)). “[M]ere surplusage may be deleted from an indictment without error.” Id.
Contrary to Amede‘s contention, the government was not required to prove that his attempted possession with intent to distribute cocaine was “willful” under
This Court has held that “[t]he mens rea required for a conviction under section 841(a)(1) is knowledge, not willfulness.” United States v. Joseph, 709 F.3d 1082, 1102 (11th Cir. 2013); United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (providing that the elements of
Amede relies, in part, on decisions involving older pattern jury instructions. A brief history on the pattern jury instructions for this
When Amede was tried and convicted in 2017, it was clear that “willfully” was not an element of his
Nevertheless, Amede relies on a pre-2010 case—United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001).8 As the government points out, this pre-2010 case is unpersuasive and inapplicable to this 2017 case because, back then, the pre-2010 jury instruction used “willfully.” Further, in McDowell, the defendants did not challenge the elements or requisite mens rea of
Even if “willfully” is not an element, Amede argues that the district court was still required to instruct the jury on willfulness because the indictment‘s inclusion of the word “willfully” did not constitute mere surplusage. Amede relies on Cancelliere as a decision in which this Court determined that the district court improperly altered the indictment when it redacted “willfully” from the jury instructions, even though the offense (money laundering) did not include “willfully” as a mens rea element. See 69 F.3d at 1121-22. In Cancelliere, however, this Court reiterated the general rule that “mere surplusage may be deleted from an indictment without
Nothing like that happened here. Contrastingly, here: (1) the government moved pre-trial to delete the willfulness requirement from the jury instructions, which the district court granted; (2) in the preliminary instructions, the jury was instructed that, to find Amede guilty, it had to find that he “knowingly possessed the controlled substance“; (3) the jury was never instructed that “willfully” was a requisite mens rea element; (4) knowing that the jury would not be instructed on any willfulness requirement, Amede nevertheless rested his defense on duress and his alleged lack of willfulness; and (5) after the evidence closed, the jury received the same instruction as it had before trial—that to convict Amede, it had to find that Amede acted “knowingly,” not “knowingly and willfully.” In contrast to Cancelliere‘s trial, Amede‘s trial circumstances did not render the inclusion of “willfully” in the indictment more than “mere surplusage.”
VI. SUFFICIENCY OF THE EVIDENCE
Amede also contends the evidence was insufficient to establish that his attempted possession with intent to distribute the cocaine was “willful.”9 Amede concedes that there was evidence that he knowingly participated in the phone calls with Detective Gandarillas and knowingly arrived at the warehouse in a vehicle with a secret compartment containing $124,900 to purchase the cocaine. Notwithstanding, Amede asserts that there was undisputed evidence that his participation in the drug deal was not willful or voluntary, as he testified that he was involved solely because Chang and his associates threatened Amede and his family.
Because “willfully” is not an element of attempted possession with intent to distribute cocaine under
The recorded phone calls revealed Amede calling Gandarillas to negotiate a
VII. DURESS DEFENSE
Amede also contends that he was prevented from presenting a complete duress defense at trial, in violation of his
The district court did not abuse its discretion in limiting Amede‘s testimony and his cross-examination of Agent Palat. To have his duress defense submitted to the jury, Amede was required to “first produce or proffer evidence sufficient to prove the essential elements of the defense.” United States v. Montgomery, 772 F.2d 733, 736 (11th Cir. 1985); see United States v. Dicks, 338 F.3d 1256, 1257 (11th Cir. 2003) (providing that “the defendant bears the burden of proving” an “affirmative defense to [a] criminal statute[]“). The duress defense is established only when the defendant: (1) “acted under an immediate threat of death or serious bodily injury“; (2) “had a well-grounded fear that the threat would be carried out“; and (3) “had no reasonable opportunity to escape or inform [the] police.” United States v. Wattleton, 296 F.3d 1184, 1196 n.20 (11th Cir. 2002) (alteration in original) (quotation marks omitted); see also United States v. Lee, 694 F.2d 649, 654 (11th Cir. 1983) (concluding the defendant‘s failure to take advantage of the numerous reasonable opportunities he had to inform the police of the alleged duress he was under precluded any duress defense).
Here, Amede presented no evidence to satisfy the third element of the duress defense—i.e., that he “had no reasonable opportunity to . . . inform [the] police” that Chang and his associates were threatening Amede and his family and coercing him to consummate the instant drug deal. Amede conceded that, even when he came to the United States, he
It was still Amede‘s burden to prove that he did not have a reasonable opportunity to escape or inform law enforcement. See Wattleton, 296 F.3d at 1196 n.20; see also United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 635 (1980) (“[I]f there was a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, the [duress] defense[] will fail.” (quotation marks omitted)). And yet, at the very least, the record shows that Amede had numerous opportunities to contact U.S. authorities during his two trips to South Florida but did not take advantage of them. Because the district court did not abuse its discretion in ruling that Amede‘s duress defense was legally deficient, it did not abuse its discretion in ruling that he could not present that same evidence to the jury.
As an alternative independent ruling, assuming arguendo that the district court abused its discretion as to Amede‘s duress defense, any error was harmless because Amede‘s counsel still elicited the sought testimony to support the duress defense. On appeal, Amede concedes that “he was able to mention some of the events that supported his defense,” but contends that the district court‘s ruling “caused his testimony to come out abbreviated, sporadic, and incomplete.” Amede claims that he was prevented from establishing these four pieces of evidence: (1) that Amede told Agent Palat about the prior incidents in Trinidad leading to his involvement in the drug deal; (2) that Agent Palat failed to record Amede‘s post-arrest statements wherein Amede communicated such details; (3) Amede‘s testimony on the contents of his post-arrest statements and the two controlled calls he made to Chang, which would have revealed, in particular, that “Derrick” had killed “RoboCop” and “Derrick‘s” wife was later beheaded; and (4) Amede‘s testimony about the incidents in Trinidad prior to the drug deal.
The record directly contradicts Amede‘s contentions. For example, the record shows that: (1) Agent Palat testified that Amede told him about the Trinidadian terrorist group and some of the prior incidents in Trinidad; (2) Agent Palat conceded
VIII. AMEDE‘S RIGHT TO COUNSEL AT SENTENCING
In the district court, Amede had two different counsel, but he ultimately rejected both of them. Amede had (1) court-appointed counsel, Ayana Harris, throughout the trial and leading up to sentencing and then had (2) retained counsel, Scott Rubinchik, leading up to and at sentencing. Amede, while counseled, filed numerous pro se motions and repeatedly indicated his dissatisfaction with both counsel.
On appeal, Amede contends that the district court abused its discretion and violated his
A. Amede‘s Conflicts with Court-Appointed Counsel
Counsel Harris was appointed to represent Amede at trial and filed the counseled motion to suppress his post-arrest statements and physical evidence. Soon thereafter, Amede submitted a pro se “supplement” to the counseled motion to suppress. At the hearing on the counseled and pro se motions, Amede personally addressed the district court and explained that he and Harris disagreed on matters of law and fact and that he filed his pro se motion to include arguments that Harris refused to include in the counseled motion.
When the district court denied both motions, Amede requested new court-appointed counsel based on his disagreements with Harris. The district court denied Amede‘s request to appoint new counsel, explained that Harris was a good lawyer who properly declined to advance the meritless arguments in Amede‘s pro se motion, and stated that Amede was free to hire an attorney and continue the trial.
Amede responded, “[t]hen I‘ll just represent myself pro se,” which he felt was his
The district court warned Amede that the evidence against him was strong and that he would be severely disadvantaged if he proceeded pro se. The district court confirmed that Amede understood he would still need to be prepared for trial. The district court asked Amede whether he had any questions “about what the potential pitfalls are or problems you might run into or any questions about what it means to be representing yourself and what the potential disadvantages are.” Amede solely inquired about the procedure for submitting pro se motions, which the district court answered.
Then, on the first day of trial, attorney Harris informed the district court that Amede had changed his mind and decided he wanted her representation at trial. Throughout Harris‘s representation of Amede at trial, she effectively cross-examined the government‘s witnesses, called several defense witnesses, admitted exhibits, argued Amede‘s duress defense, filed motions, and lodged numerous objections. During the trial, Amede made no objection to Harris‘s representation.
After Harris filed the counseled motion for a new trial, Amede filed a pro se “Motion for a Mistrial and/or Acquittal” raising several separate issues.
At a hearing on the counsel issue, Harris informed the district court that, post-verdict, the attorney-client relationship with Amede “ha[d] broken down to the point that [she was] not able to effectively assist him” in preparing for sentencing or filing post-trial motions. Harris and Amede explained that—due to probation‘s misunderstanding as to whether Amede was pro se or counseled—Harris was not notified of and thus did not attend the PSI interview, and Amede refused to participate without counsel. Harris claimed that, while she rescheduled the PSI interview so she could be present, Amede refused to meet with her, go over potential PSI objections, discuss other possible motions, or attend the rescheduled interview. Amede clarified that he would proceed with the rescheduled interview with another attorney, but not with Harris. Because Amede refused to work with Harris and had no confidence in her representation, Harris asked the district court to appoint a substitute counsel.
The district court declined to appoint a substitute counsel because Amede had failed to present a basis for appointing new counsel and his case was too far along. Importantly, Amede and Harris had already gone through trial and were at the sentencing stage. New court-appointed counsel would have to order and review the trial transcript, and new appointed counsel would not be as effective as Harris, who was most familiar with the case. The district court commented that “[i]t‘s going to be the same thing with new counsel, it really is,” but reminded Amede of his right to hire new counsel. Upon the district court‘s suggestion, Amede stated that he would be willing to participate in a PSI interview with Harris present, and Harris agreed to set up the interview.
Thereafter, Amede filed several additional pro se motions, which the district court either struck or denied. One of those motions was a “Motion for Reconsideration for Denial of Appointment of New Counsel re Status Hearing Motion Denied,” wherein Amede reiterated that his relationship with Harris had broken down, he had no confidence in her representation, they disagreed on numerous matters, and Harris refused to advance his requested objections, arguments, and motions. The district court denied the motion as meritless.
B. Denial of Motion for a Substitute Court-Appointed Counsel before Sentencing
While the
Prior to the sentencing hearing, Harris and Amede informed the district court that the extent of their breakdown in communications rendered Harris unable to effectively assist Amede. When the district court conducted a thorough inquiry into the alleged breakdown, its causes were revealed as: (1) Amede had refused to meet, speak, and prepare for sentencing with Harris after she failed to attend his PSI interview; and (2) Harris would not advance Amede‘s pro se arguments. Neither basis constitutes good cause for demanding different court-appointed counsel in this case.
First, Amede was not entitled to unilaterally refuse to communicate with his appointed counsel and then seek new appointed counsel. See Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985) (“A defendant, by unreasonable silence or intentional lack of cooperation, cannot thwart the law as to appointment of counsel.“). Harris explained that her failure to attend the PSI interview was caused by probation‘s failure to notify her of the interview due to a misunderstanding it had. When Harris attempted to rectify the situation by meeting with Amede and rescheduling the PSI interview so she could attend, Amede still refused to cooperate. Amede‘s lack of cooperation is not a “good cause” for new counsel. See id.
Second, both Harris and the district court agreed that Amede‘s pro se arguments in his “Motion for a Mistrial and/or Acquittal” and subsequently filed motions were meritless, a ruling that Amede does not challenge on appeal. Attorney Harris‘s refusal to adopt defendant Amede‘s frivolous or harmful legal positions does not constitute good cause. See Joyner, 899 F.3d at 1205-06. Rather, it was Harris‘s duty—as counsel “sworn . . . to
Third, Amede‘s remaining “general loss of confidence or trust in [Harris], standing alone, is not sufficient.” Thomas, 767 F.2d at 742. At bottom, Amede has not shown that the district court abused its discretion in concluding that he failed to establish good cause to warrant a substitute new court-appointed counsel at sentencing. See Joyner, 899 F.3d at 1205.
In any event, Amede failed to establish prejudice. United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997) (explaining that, if an appellant cannot demonstrate that he was somehow prejudiced at sentencing by the court‘s erroneous ruling as to counsel, the error was harmless), modified on other grounds by United States v. Toler, 144 F.3d 1423 (11th Cir. 1998). On appeal, Amede challenges only the district court‘s denial of his motion for a substitute court-appointed counsel as to Harris‘s preparation for sentencing, not as to the motion for a new trial.12 Ultimately though, Amede was not represented by Harris at sentencing, as he hired retained counsel Rubinchik to represent him at sentencing. Although Amede thereafter fired Rubinchik, the fact remains that Amede was not represented by Harris at sentencing. Since Harris did not represent Amede at sentencing, Amede cannot establish that but for Harris‘s continued representation of him, he would have received a different sentence. See id. In short, Amede cannot show he suffered prejudice from the district court‘s denial of his motion for a substitute court-appointed counsel for Harris.13 See id.
C. Amede‘s Conflicts with Retained Counsel at Sentencing
As noted, before sentencing, but after filing his pro se PSI objections,
Amede retained attorney Rubinchik. The district court granted Rubinchik‘s motion to substitute himself for Harris as Amede‘s counsel. The district court also granted Rubinchik‘s two motions to continue the sentencing hearing.
The district court proceeded with sentencing and explained the guidelines calculations, the advisory guidelines range of 121 to 151 months’ imprisonment, and the mandatory-minimum sentence of 120 months’ imprisonment. The district court repeatedly explained to Amede that he would qualify for the safety-valve provision, to go below the mandatory minimum, if he admitted guilt and gave a full recitation of his offense conduct. The district court invited arguments on the issue and noted that, if Amede qualified for the safety valve, it would take into account Amede‘s military service. The government responded that Amede had not accepted responsibility, had not given a complete account of his offense conduct, and deserved a high-end guidelines sentence.
Instead of making safety-valve arguments, Amede addressed the district court himself to advise that Rubinchik was unprepared to represent him, as Rubinchik saw him for the first time the day before sentencing, did not bring the PSI to review with Amede, did not file PSI objections, and did not order a trial transcript. Amede stated that he had fired Rubinchik and was “without representation.” But when the district court asked if Amede was going to represent himself like he did at trial, Amede said, “No, sir.” The district court emphasized that it was proceeding with sentencing and that Amede could proceed with or without counsel. Amede responded, “Without counsel, sir.”
Despite the district court‘s continued efforts to explain the safety-valve provision, Amede did not admit guilt, recite his offense conduct, or offer any arguments in support of safety-valve relief. Then, the district court addressed Amede‘s pro se PSI objections and overruled each. During their discussion, Amede appeared to be confused about what objections could be raised by him, versus by counsel. The district court reminded Amede “now you are pro se, because you don‘t want to have counsel.” Amede responded, “I have counsel,” then “I need counsel,” then “I have other counsel lined up.” The district court reminded Amede that they were proceeding with sentencing and moving forward.
The district court asked Amede for his sentencing recommendation and re-explained his applicable guidelines range, the possibility of a safety-valve reduction, and the otherwise applicable statutory mandatory minimum. Amede refused to offer any supporting arguments and instead insisted on having new counsel:
THE DEFENDANT: Your Honor, I recommend that I be given the opportunity to have competent counsel to represent me, sir, that could actually go through the PSI with me.
THE COURT: Okay. Besides that. I‘m not going to allow that. We‘re going to go ahead with the sentencing. You‘ve had two counsel. You‘ve been a very difficult client.
It‘s clear to me that you‘re not going to be satisfied with anybody. It‘s clear to me you don‘t listen to anybody, so I don‘t see any need to go further with additional counsel. You‘ve had the presentence investigation report, it‘s pretty straightforward. Frankly, I don‘t see anything at all wrong [in] it. I don‘t see any basis for any objection.
So, I‘ve offered you an opportunity to take advantage of the safety valve. I‘m assuming from your comments you do not want to take advantage of that; is that correct?
THE DEFENDANT: I would just like counsel, Your Honor, that‘s it.
THE COURT: All right. We‘re going to proceed. You don‘t have counsel?
You‘ve got counsel [Rubinchik] sitting at your table.
You‘ve had Ms. Harris as counsel, an excellent lawyer; and we‘re going to proceed with this, so do you have a recommendation with regard to the sentence?
THE DEFENDANT: I just want counsel, that‘s it.
THE COURT: You have an opportunity to say anything you want—
THE DEFENDANT: I want counsel.
For a final time, the district court prompted Amede for his mitigation arguments. Amede initially stood in silence and refused to answer. After a brief recess, Amede repeated Rubinchik‘s shortcomings and that he was without counsel. The district court stated that it was proceeding with sentencing and again asked Amede if he had anything to say “about the sentence itself.” Amede said he understood and that his sentence was “up to [the district court‘s] discretion.”
After the district court announced Amede‘s sentence of 121 months’ imprisonment, Amede objected on the ground that he “needed counsel to be prepared for [his] sentencing hearing, and [he didn‘t] have counsel.” In response, the district court informed Amede of his right to appeal his sentence, with or without the assistance of counsel.
D. Discharge of Retained Counsel & Amede‘s Waiver
A criminal defendant who retains his counsel enjoys the right to hire, and subsequently fire, his counsel of choice. United States v. Jimenez-Antunez, 820 F.3d 1267, 1270 (11th Cir. 2016). “[A] defendant may discharge his retained counsel without regard to whether he will later request appointed counsel.” Id. at 1271. The district court properly permitted Amede to exercise his right to both: (1) hire retained counsel Rubinchik as a substitute for appointed counsel Harris to represent Amede at sentencing; and (2) promptly fire Rubinchik once the sentencing hearing began. See id.
But, before granting Amede‘s request to dismiss Rubinchik, the district court was required to determine whether Amede “either will be represented by counsel or has made a knowing and voluntary waiver of his right to counsel.” See id. at 1272. A district court may still deny a motion to dismiss counsel, even if the defendant will remain represented by new counsel or has made a waiver of the right to counsel if the district court determines the dismissal will “interfere with the fair, orderly, and effective administration of the courts.” Id. at 1272.
Amede contends that the district court erred in: (1) allowing him to discharge Rubinchik without appointing him new counsel or determining he was voluntarily waiving his right to counsel; (2) simply accepting Amede‘s initial assertion that he wished to proceed “[w]ithout counsel, sir”
Defendants have equivalent rights to counsel and to self-representation. United States v. Garey, 540 F.3d 1253, 1265 (11th Cir. 2008). A defendant may validly waive his right to counsel so long as his choice was knowing, intelligent, and voluntary. Id. at 1266. Whether a defendant knowingly waives his right to counsel depends “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct” of the defendant. Id. (quotation marks omitted). Ideally, a district court should engage the defendant in a colloquy during which the court informs the defendant “of the nature of the charges against him, possible punishments, basic trial procedure and the hazards of representing himself.” United States v. Kimball, 291 F.3d 726, 730 (11th Cir. 2002). But such a hearing is not required so long as the record as a whole shows that the waiver was knowing and voluntary. Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir. 1986).
A valid waiver of counsel occurs “not only when a cooperative defendant affirmatively invokes his right to self-representation, but also when an uncooperative defendant rejects the only counsel to which he is constitutionally entitled, understanding his only alternative is self-representation with its many attendant dangers.” Garey, 540 F.3d at 1265. A defendant waives his right to counsel voluntarily by “affirmatively invoking his right to self-representation or by his conduct in rejecting all other available options.” Id. at 1268. “In any given case, the proper course of action will turn on factors the district court is best positioned to assess.” Id. at 1266.
Here, given the totality of the record, Amede made a knowing and voluntary waiver of his right to counsel at sentencing. See id. at 1266. The district court committed no error in proceeding to sentence Amede under the particular facts and circumstances of this case. First, the district court twice continued the sentencing hearing to allow retained Rubinchik time to prepare.14 At the sentencing hearing, the district court encouraged Amede to talk with Rubinchik, but Amede refused to speak with Rubinchik. Amede twice insisted on proceeding without Rubinchik, and the district court directed that sentencing would proceed that day. The district court attempted to discern whether Amede would be proceeding with or without counsel. At first, Amede confirmed that he would proceed “[w]ithout counsel.”
Second, while the district court did not conduct another formal colloquy, Amede‘s background, experience, and conduct, the district court‘s pretrial colloquy, and the district court‘s explanation at sentencing, all taken together, demonstrate that Amede knowingly and voluntarily waived his right to counsel at sentencing. See id. at 1265-66. Throughout this case, the district court explained at great length the charges against Amede, possible punishments, trial and sentencing procedures, and the risks of self-representation. For example, in the
sentencing hearing itself,
Additionally, Amede repeatedly confirmed, albeit pre-trial, that he understood the many dangers and disadvantages of self-representation—that he would be facing an experienced prosecutor with a formal legal education, would be held to the same standards as a represented party, and would be required to follow all of the relevant rules of procedure and evidence. Although Amede foiled the district court‘s colloquy-like efforts at sentencing by refusing to provide clear answers to its questions regarding his Sixth Amendment rights, the district court‘s efforts were still sufficient because the court unambiguously informed Amede of the penalties he faced at sentencing and the general challenges he faced as a pro se litigant. See id. at 1267.
What‘s more, Amede‘s uncooperative conduct throughout the case and especially at sentencing evinced a knowing and voluntary waiver. Both prior to trial and at sentencing, Amede insisted on obtaining a second substitute counsel. When Amede still insisted on obtaining a second substitute counsel, the district court gave Amede three choices: (1) proceed with retained counsel Rubinchik; (2) proceed with previously appointed counsel Harris; or (3) proceed pro se. Amede refused each option.
At one point, Amede very briefly asserted that he had “other counsel lined up,” but he never asserted a second substitute retained counsel was present and ready to proceed with sentencing. After having already continued sentencing twice before, the district court repeatedly emphasized that they needed to proceed with sentencing and was entitled to prevent Amede from manipulating the counsel issue in an effort to interfere with and delay the effective administration of sentencing. See Jimenez-Antunez, 820 F.3d at 1270-71 (explaining that a defendant may substitute retained counsel for other retained counsel so long as the substitution “does not interfere with the fair, orderly and effective administration of the courts,” by, for example, delaying court proceedings (quotation marks omitted)).
And, to the extent Amede wanted a second substitute court-appointed counsel instead of his retained counsel Rubinchik, the district court offered previously appointed counsel Harris, whom the court already determined was competent and conflict-free. See id. at 1271. Amede had no right to demand a different court-appointed attorney, as he had not shown good cause to substitute Harris in the first place. See id. Because Amede objected to his only available and constitutionally required retained-counsel and appointed-counsel options—and because he did so with the understanding that his only other option was to proceed pro se, the risks of which the district court had repeatedly warned him and he said he understood—Amede, by his uncooperative conduct, knowingly and voluntarily waived his right to counsel at sentencing. See Garey, 540 F.3d at 1265-66.
In sum, when Amede fired retained counsel Rubinchik, as he was entitled to do, the district court had already determined that court-appointed counsel Harris was competent and conflict free, and Amede was not entitled to new court-appointed
IX. CONCLUSION
For all of these reasons, we affirm Amede‘s conviction and sentence.
AFFIRMED.