10-4814-cr
United States v. Yusuf Abdur-Rahman




                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                         AMENDED 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 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
13th day of March, two thousand thirteen.

PRESENT:
                 RALPH K. WINTER,
                 PETER W. HALL,
                      Circuit Judges,
                 ALVIN K. HELLERSTEIN,
                      Senior District Judge.*


_____________________________________________

THE UNITED STATES OF AMERICA,
                                            Appellee,

                           v.                                                           No. 10-4814-cr

YUSUF ABDUR-RAHMAN,

                                            Defendant-Appellant.

______________________________________________

FOR DEFENDANT-APPELLANT:                            DANIEL MATTHEW PEREZ, Law Offices of Daniel M.
                                                    Perez, Newton, New Jersey.

* The Honorable Alvin K. Hellerstein, United States Senior District Judge for the Southern District of New York,
sitting by designation.
FOR APPELLEE:                                  RACHEL P. KOVNER, Justin S. Weddle, of counsel,
                                               Assistant United States Attorneys for Preet Bharara,
                                               United States Attorney for the Southern District of
                                               New York, New York, N.Y.

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

New York (Pauley, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of conviction entered on November 17, 2010

is AFFIRMED.

       A jury found Yusuf Abdur Rahman guilty of executing and attempting to execute a scheme

to defraud Medicaid in violation of 18 U.S.C. § 1347 and 2; committing access device fraud by

using New York State Benefit identification cards issued to others to fraudulently obtain Medicaid

benefits in violation of 18 U.S.C. § 1029(a)(5) and 2; acquiring and obtaining controlled

substances by misrepresentation, fraud, forgery, deception and subterfuge in violation of 21

U.S.C. § 843(a)(3); aggravated identity theft in relation to health care fraud; and access device

fraud in violation of 18 U.S.C. §§ 1028A and 2. Rahman was sentenced to a term of 101 months’

imprisonment. In his counseled brief, Rahman raises three issues for review. He first challenges

the district court’s appointment of counsel despite his request for self-representation in violation of

the Sixth Amendment of the Constitution. Second, he argues that the district court similarly erred

in denying his motion to proceed pro se at sentencing. Third, he further contends that his second

appointed counsel was ineffective in failing to press, on Rahman’s behalf, Rahman’s request for

self-representation. Rahman also filed a pro se brief in which he raises eight additional issues for

review. In a separate opinion filed simultaneously with this order, we address Rahman’s pro se
challenge to the district court’s jury instruction concerning whether health care fraud is a predicate

offense under 18 U.S.C. § 1028A.

         We assume the parties’ familiarity with the factual background and issues on appeal,

elaborating only where necessary to explain our decision affirming the judgment of the district

court.

I.       Right to Self-representation

         A.     Before and During Trial

         The right to self-representation is unqualified if invoked before the start of trial. U.S. ex

rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). This right derives not from statute but

from the United States Constitution. Id. at 15; see also Faretta v. California, 422 U.S. 806 (1975)

(holding that under the Sixth Amendment, the accused is guaranteed the right of electing to

represent himself). A criminal defendant may proceed pro se if he “knowingly, voluntarily, and

unequivocally” waives his right to appointed counsel. Williams v. Bartlett, 44 F.3d 95, 99 (2d

Cir. 1994).

         At the time of Rahman’s arrest, Assistant Federal Defender Martin Cohen was assigned to

represent Rahman. During Rahman’s arraignment on May 5, 2009, Rahman asked the court to

replace Cohen with other counsel. The court appointed CJA counsel, Kafahni Nkrumah. One

week later, on May 12, 2009, Rahman wrote a letter to the court asking that Atty. Nkrumah be

replaced because “[he] need[ed] someone older with experience.” During the May 19, 2009 bail

hearing, the district court urged Rahman to give Atty. Nkrumah “a chance” and declined to act on

Rahman’s request at that time. On May 28, 2009, Rahman sent a letter to the court stating that

Nkrumah’s performance was inadequate and moved to proceed pro se.

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       The district court held a conference and, at the suggestion of Atty. Nkrumah, ordered a

competency evaluation of Rahman. On July 20, 2009, Atty. Nkrumah filed a motion to withdraw

as counsel and asked the court to appoint new counsel in his place.

       On July 30, 2009, the district court held a hearing to discuss the status of Rahman’s case.

During the hearing, the district court granted Atty. Nkrumah’s motion, held that Rahman was

competent, appointed Charles Hochbaum to represent Rahman, and cautioned Rahman that Atty.

Hochbaum would be his last court-appointed lawyer. Rahman did not object to the appointment

of Hochbaum nor did he reassert his desire to proceed pro se. On appeal, Rahman argues that the

district court erred when it failed to consider his request to proceed pro se and instead appointed

substitute counsel.

       Under the circumstances presented we are not persuaded that Rahman’s request was

unequivocal. Although clearly styled as a motion for self-representation, Rahman’s letter in

support of the motion reiterated the same concerns he expressed in his motion to replace Atty.

Nkrumah, i.e., Rahman’s dissatisfaction with the outcome of the bail hearing and his belief that

Atty. Nkrumah lacked the experience necessary to represent Rahman. Those concerns were

further shared with the psychologist evaluating Rahman, to whom Rahman expressed the view that

his first preference was for new counsel rather than proceeding pro se. We recognize that

generally “a defendant is not deemed to have equivocated in his desire for self-representation

merely because he expresses that view in the alternative, simultaneously requests the appointment

of new counsel, or used it as a threat to obtain private counsel,” Williams, 44 F.3d at 100. Here,

however, Rahman’s prior and unresolved motion for new counsel, coupled with his repeated

complaints about Atty. Nkrumah and his expressed wish for substitute counsel, evinced a desire

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not to represent himself but instead to have the district court appoint new counsel. Compare

Wilson v. Walker, 204 F.3d 33 (2d Cir. 2000) (defendant’s repeated requests to proceed pro se,

notwithstanding the appointment of new counsel, indicated a clear desire to invoke the right to

self-representation); see also LaValle v. Artus, 403 Fed. Appx. 607, 609 (2d Cir. 2010) (summary

order) (request to proceed pro se at trial was not unequivocal where defendant expressed

dissatisfaction with current counsel’s trial strategy, stated that he wished to remain represented by

counsel, and that self-representation was his “last option.”).

       Even if Rahman’s request to represent himself was sincere and unequivocal at the time

made, his subsequent statements to the evaluator and his acceptance, without objection, of Atty.

Hochbaum as trial counsel indicated that he was vacillating on the issue or had abandoned his

request altogether. Wilson, 204 F.3d at 37; see also Williams, 44 F.3d at 99–100 (citing Brown v.

Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (waiver when, after initial request to proceed pro

se, defendant asked counsel to continue representation and then, once again, requested to proceed

pro se on the third day of trial)); United States v. Bennett, 539 F.2d 45 (10th Cir. 1976).

Accordingly, on this record we conclude that Rahman’s request was not clear and unequivocal and

therefore the district court did not err in granting Rahman’s May 12, 2009 motion to replace Atty.

Nkrumah. See United States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990) (“‘[C]ourts indulge every

reasonable presumption against waiver’ of fundamental constitutional rights[.]”) (quoting Johnson

v. Zerbst, 304 U.S. 458, 464 (1938)); see also United States v. Frazier-El, 204 F.3d 553, 559 (4th

Cir. 2000) (“[W]e must ascribe a constitutional primacy to the right to counsel because this right

serves both the individual and collective good, as opposed to only the individual interests served

by protecting the right of self-representation.” (internal quotation marks omitted)).

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       B.      Sentencing

       Rahman also asserts that the district court erred in denying his motion for

self-representation with respect to sentencing. It is well accepted that a defendant who exercises

his right to appear pro se is not permitted to complain later about the quality of his own defense or

raise an ineffective assistance of counsel claim. McKaskle v. Wiggins, 465 U.S. 169, 177 n.8

(1984) (citing Faretta, 422 U.S. at 834, n.46). The record reveals that Rahman was unwilling to

waive a claim of ineffective assistance of counsel from the point of self-representation forward.

Accordingly, we find no error with the district court’s denial of Rahman’s motion.

II.    Ineffective Assistance of Counsel

       Rahman next argues that Atty. Nkrumah provided ineffective assistance of counsel in

moving to withdraw and requesting the appointment of substitute counsel rather than pressing

Rahman’s motion for self-representation. Rahman also challenges Atty. Nkrumah’s suggestion,

in the first instance, that Rahman undergo a competency evaluation. Under the familiar

Strickland standard, Atty. Nkrumah’s request for substitute counsel was not objectively

unreasonable and did not adversely affect the proceedings. Strickland v. Washington, 466 U.S.

668, 688 (1984). Furthermore, we take no issue with the request for a competency hearing, 18

U.S.C. § 4241, and conclude that the district court, in continuing to have Rahman represented by

counsel until the resolution of the competency determination, acted within its discretion. Purnett,

910 F.2d at 54–55.

III.   Rahman’s Pro Se Appeal

       Rahman, in his pro se brief, raises eight additional issues for review. Rahman argues that

Congress has not authorized cumulative punishment for violating federal health care statutes; all

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four counts of the indictment are multiplicitous and violate the Fifth Amendment; he was deprived

of his right to a speedy trial; the court lacked subject matter jurisdiction over his case because the

defrauded Medicaid program was not a federal health care program; the district court was biased;

the jury instructions were erroneous; the evidence produced at trial was insufficient to convict on

counts 2 and 4 of the indictment; and the district court abused its discretion in imposing certain

sentencing enhancements.

       We review de novo a preserved claim that the charges were multiplicitous. United States

v. Mejia, 545 F.3d 179, 204 (2d Cir. 2008). Multiplicity is found where an indictment “charges in

separate counts two or more crimes, when in law and fact, only one crime has been committed,”

United States v. Handakas, 286 F.3d 92, 97 (2d Cir. 2002) (overruled on other grounds). We

consider “whether each [count] requires proof of a fact which the other does not.” United States

v. Finley, 245 F.3d 199, 205 (2d Cir. 2001) (internal quotation marks omitted); see also

Blockburger v. United States, 284 U.S. 299, 304 (1932). The charges of conviction are not

multiplicitous and do not result in a violation of the Constitution’s double jeopardy clause. The

counts charged in the indictment—health care fraud, access device fraud, and obtaining controlled

substances by fraud—each required proof of at least one fact that the others did not. 18 U.S.C. §

1347; 18 U.S.C. § 1029(a)(5); 21 U.S.C. § 843(a)(3). Nor does the charge of aggravated identity

theft violate the double jeopardy clause because cumulative punishment is authorized for that

crime. See 18 U.S. § 1028A(a)(1) and (c); see also Flores-Figueroa v. United States, 556 U.S.

646, 648 (2009).

       Rahman has not identified a Speedy Trial Act violation. We review for abuse of

discretion the district court’s determination that the ends of justice warrant the exclusion of time in

                                                  7
the calculation of mandated time frames. United States v. Beech-Nut Nutrition Corp., 871 F.2d

1181, 1197–98 (2d Cir. 1989). Each instance that the district court excluded time, the exclusion

was either consented to or within the court’s discretion upon a finding that the ends of justice were

served by taking such action. That determination is entrusted to the court, not the parties, Parisi

v. United States, 529 F.3d 134, 140 (2d Cir. 2008), and we hold that the district court did not abuse

its discretion in excluding time, notwithstanding Rahman’s objection, to allow for production and

discovery, to resolve the matter of Rahman’s competency, and to enable new defense counsel to

prepare pre-trial motions.

       Rahman also challenges the sufficiency of the evidence produced at trial to demonstrate his

guilt on the charges of health care fraud and access device fraud. Upon our independent review of

the trial record, we conclude that there was ample evidence to sustain the jury’s verdict on each

count. See United States v. Gagliardi, 506 F.3d 140, 149–50 (2d Cir. 2007).

       We have considered Rahman’s remaining claims regarding his arrest, the district court’s

jurisdiction and alleged bias, and his challenges to the sentence imposed, and we determine that

each is without merit. For the reasons stated above and in the accompanying per curiam opinion,

the judgment of conviction is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O=Hagan Wolfe, Clerk




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