    15-1271 (L)
    United States v. Nyenekor


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 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 DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO 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 21st day of August, two thousand nineteen.

    PRESENT:
                      JON O. NEWMAN,
                      PETER W. HALL,
                           Circuit Judges,
                      CLAIRE R. KELLY,
                           Judge.*
    _____________________________________

    United States of America,

                                Appellee,

                      v.                                                        15-1271 (L)
                                                                                16-394 (Con)
    Carpeah R. Nyenekor, Sr.,

                                Defendant-Appellant.

    _____________________________________

    FOR DEFENDANT-APPELLANT:                             Carpeah R. Nyenekor, Sr., pro se, Winton,
                                                         NC.

    FOR APPELLEE:                                        Scott Hartman, Anna M. Skotko, Assistant
                                                         United States Attorneys, for Geoffrey S.

    * Judge Claire R. Kelly, of the United States Court of International Trade, sitting by designation.
                                                     Berman, United States Attorney for the
                                                     Southern District of New York, New York,
                                                     NY.

        Appeal from a judgment of the United States District Court for the Southern District of New

York (Seibel, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Appellant Carpeah Nyenekor, Sr., pro se, was indicted on three counts of distribution and

possession with intent to distribute cocaine. After a jury trial, he was found guilty of one count of

possession with intent to distribute 28 grams or more of cocaine base. The district court sentenced

him to 92 months’ imprisonment and 5 years’ supervised release. He raises multiple issues on

appeal. We assume the parties’ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.

   I.        Motions to Dismiss the Indictment, Double Jeopardy, Speedy Trial

        We review de novo denials of a motion to dismiss the indictment. United States v. Scott,

394 F.3d 111, 116 (2d Cir. 2005). The district court properly denied Nyenekor’s motions to

dismiss the indictment. Nyenekor’s argument that the indictment was based on false evidence is

meritless.    Contrary to his assertions, nothing in the record shows that the search warrant

authorizing the March 1, 2013 search was ever found to be invalid or that Nyenekor was found not

guilty on that basis. Nyenekor’s state criminal charges were dismissed on the state prosecutor’s

motion on September 3, 2013, after Nyenekor was arrested on the federal criminal complaint; the

order dismissing those charges makes no mention of false evidence. Nor was there evidence

supporting Nyenekor’s contention that the Government deliberately failed to preserve evidence.


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See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“[U]nless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially useful evidence does not constitute a

denial of due process of law.”).

       Nyenekor’s double jeopardy argument is also meritless. As the Supreme Court recently

reaffirmed, the “dual-sovereignty” doctrine holds that “a State may prosecute a defendant under

state law even if the Federal Government has prosecuted him for the same conduct under a federal

statute.” Gamble v. United States, 139 S. Ct. 1960, 1964 (2019). It also applies to the reverse

situation: the federal Government may prosecute a defendant if he has already been prosecuted by

the state. Id. If jeopardy had attached to Nyenekor’s state criminal charges, therefore, the

Government was not barred from pursuing its own charges. Id.

       Finally, the prosecution did not violate Nyenekor’s rights to a speedy trial under either the

Sixth Amendment or Speedy Trial Act. The Sixth Amendment does not apply until a particular

“prosecution has begun[,]” United States v. Marion, 404 U.S. 307, 313 (1971), and the Speedy Trial

Act’s indictment clock does not begin to run until the defendant is under “federal arrest” for the

federal charges, United States v. Jones, 129 F.3d 718, 721 (2d Cir. 1997). Nyenekor was not

arrested on the federal charges until August 2013. He was indicted by a federal grand jury in

September 2013. Any time prior to these dates does not count in determining his speedy trial rights

under the Act.

       Nor was the remaining two-year delay after Nyenekor was placed in federal custody a

violation of his speedy trial rights. To determine if a defendant’s Sixth Amendment right to a

speedy trial has been violated, a court must consider the “‘[l]ength of delay, the reason for the delay,

the defendant’s assertion of his right, and prejudice to the defendant.’” United States v. Black, 918


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F.3d 243, 254 (2d Cir. 2019) (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)). Nyenekor’s

competency evaluation was unnecessarily delayed for four-months because of the government’s

failure to serve the Bureau of Prisons and the U.S. Marshals Service with the district court’s order

transferring Nyenekor for treatment. Nonetheless, the bulk of the two-year delay mostly stemmed

from the initial January 2014 order for a competency evaluation, subsequent evaluations,

proceedings in May 2014 and the court’s determination of incompetency, the five months Nyenekor

was at Federal Medical Center Butner to be restored to competency, and the second and third

competency hearings in May and June 2015. Although a delay of over a year is presumptively

prejudicial, see Black, 918 F.3d at 255, the overwhelming portion of the delay here was valid and

necessary to resolve Nyenekor’s competency issues. Further, any delays caused by competency

hearings or examinations, or when the defendant is considered mentally incompetent to stand trial,

are automatically excluded from the speedy trial time computations. 18 U.S.C. § 3161(h)(1)(A),

(4).

       II.      Motion to Suppress

             We review de novo a district court’s legal conclusions in a decision on a motion to suppress

evidence and review its findings of fact for clear error. United States v. Bershchansky, 788 F.3d

102, 108 (2d Cir. 2015). We review de novo mixed questions of law and fact. Id. Here, the

district court properly denied the motion, reasoning that the application did not falsely state the

Newburgh police officers had recorded the controlled purchases; the application stated only that

the police had monitored them and no recordings could be expected.

             On appeal, Nyenekor does not point to any legal or factual error in this decision, but he

asserts (1) that the Newburgh police lied on the warrant application to retaliate against him for filing


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lawsuits against the officers and (2) that the application was not supported with evidence. There

is no evidence in the record supporting Nyenekor’s argument, however.              Detective Michael

Loscerbo testified that he was not really aware of the litigation nor was he affected by it, which

suggests that he was not motivated to retaliate against Nyenekor. Further, the warrant application

was adequately supported by a police officer’s affidavit which laid out the factual reasons—the two

controlled buys—supporting the officer’s belief that cocaine would be found at Nyenekor’s

residence. This was sufficient support for issuance of the warrant. See Illinois v. Gates, 462 U.S.

213, 238–39 (1983) (“[T]he duty of a reviewing court is simply to ensure that the magistrate had a

substantial basis for concluding that probable cause existed.” (internal quotation marks, brackets,

and ellipsis omitted)).

   III.      Motion to Proceed Pro Se

          Nyenekor asserts that the district court violated his Sixth Amendment right to represent

himself by denying his request to defend himself pro se. A criminal defendant has a Sixth

Amendment right to forgo counsel and represent himself pro se. See Faretta v. California, 422

U.S. 806, 819 (1975). Judges are not required, however, to permit a defendant with “severe mental

illness to the point where [he is] not competent to conduct trial proceedings by [himself,]” to

proceed pro se, and, the court can insist on counsel even if the defendant is competent to stand trial.

Indiana v. Edwards, 554 U.S. 164, 177–78 (2008). We have not clearly articulated a standard of

review applicable to Edwards decisions, but our case law suggests that such decision is reviewed

for clear error. See United States v. Scott, 509 F. App’x 35, 36 (2d Cir. 2013) (summary order)

(“The district court did not commit clear error in allowing Scott to proceed to trial pro se.”).




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         On review, we determine the district court did not commit clear error by refusing to permit

Nyenekor to proceed pro se. It reasoned that Nyenekor’s mental illness (antisocial personality

disorder) made him fixate on certain legal issues and made him unable to focus on actually

preparing a defense or realistically to understand events, and that his mental condition would cause

him to disrupt proceedings if he were permitted to represent himself. See United States v. Barnes,

693 F.3d 261, 271 (2d Cir. 2012) (“A defendant has no right to engag[e] in serious and obstructionist

misconduct, and a court may deny a defendant's request to proceed pro se if it finds that the request

is manipulative or abusive in some other way[.]” (internal quotation marks and citation omitted)).

         Nyenekor argues that the trial involved a simple legal issue and that his prior courtroom

behavior had been acceptable. The district court’s decision, however, was not based on the

complexity of the legal issues, but rather Nyenekor’s ability to “keep his head in the game at trial[.]”

Although the district court acknowledged that Nyenekor had behaved himself in court, his behavior

elsewhere demonstrated that he had the capacity to be disruptive in the courtroom if he wanted to

manipulate the proceedings. Nyenekor’s legal filings also showed that his antisocial personality

disorder affected his ability to understand the proceedings and that he repeatedly fixated on

jurisdiction, double jeopardy, and DNA evidence, despite such arguments being meritless. Given

this evidence, the district court’s decision was not clearly erroneous.

   IV.      Evidentiary Issues

         Nyenekor the Government failed to disclose certain evidence bearing on the case. The

record, however, does not support this argument. During sentencing, the district court briefly

addressed Nyenekor’s evidentiary challenges and the Government stated that the evidence was

disclosed to defense counsel early in the case or as 18 U.S.C. § 3500 material. The fact that


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Nyenekor’s attorney did not introduce or use this evidence does not show that the Government

failed to produce it.

          Nyenekor argues that the district court should not have permitted the Government to offer

his redacted 2009 plea colloquy because it was prejudicial under Federal Rule of Evidence 403 and

violated Rule 404(b). Rule 404(b) prohibits parties from introducing evidence that the defendant

previously committed a crime to show his propensity to engage in such crimes. However, the

evidence is permissible “for another purpose, such as proving . . . intent . . . [or] knowledge[.]” Fed.

R. Evid. 404(b)(2). Here, the Government offered the 2009 colloquy for the purpose of showing

Nyenekor’s knowledge of drug selling and his intent to engage in it. See United States v. Paulino,

445 F.3d 211, 222–23 (2d Cir. 2006) (evidence of prior narcotics conviction did not violate Rule

404(b) where it was admitted to prove defendant’s knowledge of and intent to distribute drugs found

in his bedroom). Nor did the prejudice caused by the colloquy outweigh its probative value

because the testimony represented a small fraction of the evidence and did not involve “conduct

any more sensational or disturbing than the crimes” with which Nyenekor was charged. United

States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990). Further, the district court gave a

limiting instruction immediately before the Government offered this evidence and during the jury

charge.

    V.       Sufficiency of the Evidence

          A defendant challenging the sufficiency of the evidence faces a heavy burden, and a

conviction will be upheld if any rational trier of fact could have found the elements of a crime

beyond a reasonable doubt. United States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014). A reviewing

court “view[s] the evidence in the light most favorable to the government, drawing all inferences


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in the government’s favor,” United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010) (internal

quotation marks omitted), and applies the sufficiency test “to the totality of the government’s case

and not to each element, as each fact may gain color from others,” United States v. Guadagna, 183

F.3d 122, 130 (2d Cir. 1999). Nyenekor was charged under 21 U.S.C. § 841(a)(1) and (b)(1)(B).

Section 841(a)(1) prohibits any person from “knowingly or intentionally . . . possess[ing] with intent

to distribute . . . a controlled substance[.]” Section 841(b)(1)(B) imposes specific penalties for

violating § 841(a)(1) with 28 grams or more of a mixture or substance containing cocaine base.

       Nyenekor argues that the Government failed to offer sufficient evidence that he possessed

the cocaine.    We are not persuaded.         The Government offered evidence that Nyenekor

constructively possessed the drugs.    “Constructive possession exists when a person has the power

and intention to exercise dominion and control over an object, and may be shown by direct or

circumstantial evidence.” United States v. Facen, 812 F.3d 280, 286–87 (2d Cir. 2016) (internal

quotation marks omitted). “[M]ere presence at the location of contraband does not establish

possession[,]” but “presence under a particular set of circumstances” would be sufficient to show

constructive possession. Id. at 287 (first alteration in original; internal quotation marks omitted).

Occupation of a residence, combined with knowledge of an item’s presence, is sufficient to show

constructive possession. See Paulino, 445 F.3d at 222–23 (construction possession could be

shown where evidence showed that defendant used drugs and was sole occupant of room where

cocaine was found).

       The evidence showed that Nyenekor was the sole occupant of the room in which the drugs

were found, that the jacket in which additional drugs were found belonged to him, and that he

admitted drugs were dropped off in the room by another dealer for the purposes of distribution.


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Further, Nyenekor’s prior conviction for possessing cocaine showed that he was aware of how

cocaine is packaged for distribution. Together, this evidence is sufficient to show that Nyenekor

constructively possessed the cocaine with an intent to distribute it.

   VI.      Jury Instructions

         Nyenekor objects to the jury instructions, arguing that the inclusion of the aiding and

abetting theory was akin to charging him with another crime without actually indicting him. We

review de novo errors in jury instructions. United States v. Kozeny, 667 F.3d 122, 130 (2d Cir.

2011). This Court will “reverse only if all of the instructions, taken as a whole, caused a defendant

prejudice.” United States v. Bahel, 662 F.3d 610, 634 (2d Cir. 2011) (internal quotation marks

omitted).

         “The well established rule in this and other circuits is that a defendant may be indicted for

the commission of a substantive crime and convicted of aiding and abetting its commission although

not named in the indictment as an aider and abettor.” United States v. Smith, 727 F.2d 214, 217

(2d Cir. 1984) (internal quotation marks omitted).      “An aiding and abetting jury instruction is

appropriate where the prosecution makes it known that it intends to proceed on a theory of aiding

and abetting and the evidence so warrants.” Id.

         Here, the Government timely sought to include the aiding and abetting theory. It first

raised the issue on the second day of the trial before the defense’s case began. The Government

sought inclusion of the aiding and abetting theory for all three counts because Nyenekor’s post-

arrest statement suggested that he possessed the drugs to assist another dealer. Further, the

evidence supported an aiding and abetting charge. As the district court explained, Nyenekor’s

post-arrest statements showed that he assisted another drug dealer by connecting the dealer with


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prospective buyers or by selling on behalf of the dealer. Depending on whether the jury elected to

credit the confidential informant, the evidence showed either direct liability or suggested aiding and

abetting.

   VII.     Sentence

       Nyenekor raises two challenges to his sentence. First, he argues that the district court

should not have applied an enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. We

disagree that the district court exceeded the bounds of its discretion in applying the enhancement.

See United States v. Salim, 549 F.3d 67, 72 (2d Cir. 2008) (reviewing calculation of guidelines for

abuse of discretion). An enhancement under § 3C1.1 applies when “the defendant willfully

obstructed or impeded . . . the administration of justice with respect to the . . . prosecution . . . of

the instant offense of conviction” and the obstructive conduct related to “the defendant’s offense of

conviction[.]” U.S.S.G. § 3C1.1. Although refusal to generally comply with a court order is not

listed under the examples of obstructive conduct, the list is non-exhaustive. Id. cmt. 4. Nyenekor

refused to comply with the district court’s order compelling him to provide a voice exemplar, which

the district court ordered as part of the trial. The conduct related to Nyenekor’s offense of

conviction because the exemplar would be used by a police officer to identify Nyenekor’s voice as

the one he heard selling cocaine to the confidential informant. See Id. (obstructive conduct can

include conduct that attempts to prevent relevant evidence from being introduced, such as by

intimidating witnesses or committing perjury).

       Second, Nyenekor asserts that he was illegally sentenced to five years’ supervised release

because the statutory maximum for class C felonies was three years. This argument is meritless.

Nyenekor was convicted of violating 21 U.S.C. § 841(b)(1)(B), which carries a mandatory


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minimum sentence of 4 years’ supervised release. Therefore, the district court’s imposition of a

5-year term of supervised release was not illegal.

       We have considered all of Nyenekor’s remaining arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




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