     15-3075-cr
     United States v. Wint

                          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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-3075-cr
16
17       FELICIA YOUNG,
18                Defendant,
19
20       ROYAN WINT, AKA G-ROY,
21                Defendant-Appellant.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        ELIZABETH D. MANN, Tepper
25                                             Dardeck Levins & Mann, LLP,
26                                             Rutland, Vermont.
27


                                                  1
 1   FOR APPELLEE:              GREGORY L. WAPLES, Assistant
 2                              United States Attorney (Paul J.
 3                              Van De Graaf, Assistant United
 4                              States Attorney, on the brief),
 5                              for Eric S. Miller, United
 6                              States Attorney for the District
 7                              of Vermont, Burlington, Vermont.
 8
 9        Appeal from a judgment of the United States District
10   Court for the District of Vermont (Murtha, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Royan Wint, aka G-Roy, appeals from the judgment of the
17   United States District Court for the District of Vermont
18   (Murtha, J.), sentencing him principally to 60 months’
19   imprisonment after convictions for (1) conspiracy to
20   distribute and to possess with intent to distribute 28 grams
21   or more of cocaine base, cocaine, and oxycodone in violation
22   of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B); and (2)
23   possession with intent to distribute 28 grams or more of
24   cocaine base, cocaine, and oxycodone in violation of 21
25   U.S.C. §§ 841(a)(1) and 841(b)(1)(B). We assume the
26   parties’ familiarity with the underlying facts, the
27   procedural history, and the issues presented for review.
28
29        1.   Wint argues that the evidence at trial was
30   insufficient to establish beyond a reasonable doubt that he
31   was involved in the distribution of narcotics. “A defendant
32   challenging the sufficiency of the evidence bears a heavy
33   burden . . . .” United States v. Kozeny, 667 F.3d 122, 139
34   (2d Cir. 2011). We “view the evidence in the light most
35   favorable to the government, crediting every inference that
36   could have been drawn in the government’s favor, and
37   deferring to the jury’s assessment of witness credibility
38   and its assessment of the weight of the evidence.” United
39   States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (citations
40   omitted).    We must uphold the judgment if “any rational
41   trier of fact could have found the essential elements of the
42   crime beyond a reasonable doubt.” Id. (quoting Jackson v.
43   Virginia, 443 U.S. 307, 319 (1979)).
44
45        Viewed in the light required, the evidence was more
46   than sufficient to establish Wint’s intent to distribute--it
47   was overwhelming. Law enforcement officers who executed a

                                  2
 1   search warrant at Wint’s residence found approximately 70
 2   grams of cocaine base, 173 grams of powder cocaine,
 3   oxycodone pills, over $11,000 in cash, and a digital scale
 4   with white powder in Wint’s bedroom. Wint confessed to
 5   narcotics possession and distribution. And three witnesses
 6   corroborated Wint’s confession, testifying, inter alia, that
 7   Wint supplied them and others with oxycodone and cocaine to
 8   distribute. One of these witnesses, Wint’s co-defendant,
 9   testified that she had traveled with Wint to New York City
10   and Albany where Wint obtained cocaine and oxycodone from
11   two suppliers, and that she had seen Wint packaging crack
12   cocaine for distribution.1
13
14        Wint argues that the testimony of the non-law
15   enforcement witnesses was unreliable, Br. of Appellant 26;
16   Reply 9-10, but we must assume that the jury credited it.
17   See United States v. Hamilton, 334 F.3d 170, 179 (2d Cir.
18   2003); United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.
19   1982).
20
21        2.  On the eve of jury selection, Wint’s appointed
22   lawyer--his third--moved to withdraw and to be replaced with
23   new appointed counsel, and for a continuance. The district
24   court denied the motion, and Wint’s third lawyer continued
25   to represent him through the close of and immediately after
26   trial. Wint acknowledges that the district court acted
27   within its discretion in denying the motion to withdraw, but
28   he argues that the district court was “required to advise
29   the defendant of his Constitutional right to make an
30   election whether to proceed with court-appointed counsel or
31   to proceed pro se.” Br. of Appellant 9-10.
32
33        A criminal defendant has a constitutional right to
34   waive the right to counsel and to represent himself.
35   Faretta v. California, 422 U.S. 806 (1975); see also 28
36   U.S.C. § 1654. Wint does not contend that he ever requested
37   to appear pro se, and he cites no authority for the



         1
           A handwritten bus schedule found in Wint’s car
     corroborated the testimony regarding Wint’s Albany supplier.
     Of course, corroboration or a lack thereof “goes only to the
     weight of the evidence, not to its sufficiency.” United
     States v. Hamilton, 334 F.3d 170, 179 (2d Cir. 2003)
     (quoting United States v. Roman, 870 F.2d 65, 71 (2d Cir.
     1989)).
                                  3
 1   proposition that a court must affirmatively ensure that a
 2   defendant is aware of this right.
 3
 4        Even assuming that when a district court denies a
 5   motion to withdraw, a defendant has some right to be
 6   informed that he may choose to appear pro se rather than
 7   continue with appointed counsel, there was no prejudicial
 8   error here.2 The record reflects Wint’s awareness of the
 9   right of self-representation. The possibility of Wint
10   representing himself was mentioned several times in Wint’s
11   presence at the hearing on the motion to withdraw, and the
12   district court specifically asked Wint whether he wished to
13   represent himself; Wint declined.3


         2
           Harmless error analysis does not apply when a
     criminal defendant is denied the right to appear pro se.
     United States v. Plattner, 330 F.2d 271, 273 (2d Cir. 1964).
     To repeat, Wint does not argue that he ever invoked (and
     therefore was denied) his right of self-representation.
         3
           In Wint’s presence, Wint’s trial counsel mentioned
     previous discussions with Wint regarding whether Wint wanted
     to represent himself (and stated that he believed Wint “more
     often than not, he realizes that may not be a wise course”),
     App’x 148, and informed the court that “[i]f [Wint] were to
     tell you he wants to go pro se and you want to hold me as a
     stand-by counsel, I would be willing to do that,” App’x 150.
     Subsequently, the district court asked Wint:

              [A]t the last, maybe even both times when you
              asked to have another lawyer or when the lawyer
              asked to be relieved from the case, I advised you
              that, particularly after Mr. Mabie, that it was
              the last time you were going to get assigned
              counsel. That was about a year ago. So you still
              don’t want Mr. Mabie to represent you? . . . So
              you don’t wish to try this case on your own, I
              assume?

     App’x 150-51. Wint responded, inter alia, “I don’t want to
     go pro se right now.” App’x 151.

          Wint argues that his response might have meant only
     that Wint preferred the appointment of new counsel to self-
     representation, and that once Wint’s motions were denied he
     may have then preferred to proceed pro se rather than with
                                  4
 1
 2        3.  After the close of the government’s case, Wint’s
 3   counsel conferred with Wint, and advised the court that Wint
 4   had chosen not to testify in his own defense. Wint contends
 5   that counsel gave ineffective assistance by failing to
 6   advise him that the district court would allow him overnight
 7   to decide whether to testify, and that if he did choose to
 8   testify, he could do so the following morning rather than
 9   immediately. He further contends that his testimony would
10   have affected the outcome of the case.
11
12        To prevail on a claim of ineffective assistance of
13   counsel, a defendant must (1) “show that counsel’s
14   representation fell below an objective standard of
15   reasonableness”; and (2) “affirmatively prove prejudice.”
16   Strickland v. Washington, 466 U.S. 668, 688, 693 (1984).
17   The district court ruled that Wint failed to make either of
18   these showings.4
19
20        We agree that Wint failed to show objectively
21   unreasonable performance; we therefore need not consider
22   prejudice. The district court found Wint’s factual
23   allegations incredible and instead credited trial counsel’s
24   affidavit, which stated, inter alia, that counsel had
25   advised Wint against testifying but never told him that he
26   could not do so; that Wint had been informed of his right to
27   testify and stated that he would not testify; that counsel
28   informed Wint that the court had suggested Wint could wait
29   until the following morning to finally decide whether to
30   testify, but Wint said that his decision would be the same
31   the next day; and that Wint never told counsel that he
32   wanted to testify the next day when he would be more rested.
33   We defer to the district court’s factual findings, which are



     appointed counsel. This is an implausible reading of the
     transcript. In any event, Wint obviously knew that pro se
     status was an option. See also Supp. App’x 35 (letter from
     trial counsel to Wint advising that if Wint decides he
     wishes to represent himself he should inform counsel
     “clearly . . . in writing”).
         4
           Both parties agree that the district court had the
     discretion to consider this ineffective assistance claim
     prior to sentencing and entry of judgment. See United
     States v. Brown, 623 F.3d 104, 113-14 (2d Cir. 2010).
                                  5
 1   not clearly erroneous. See Contino v. United States, 535
 2   F.3d 124, 127 (2d Cir. 2008).
 3
 4        Wint’s trial counsel fulfilled his duty of effective
 5   assistance to advise Wint that he had the right to testify,
 6   and to provide advice regarding whether to exercise that
 7   right. See Rega v. United States, 263 F.3d 18, 20-21 (2d
 8   Cir. 2001).
 9
10        4.  In his post-trial motion, Wint argued that he
11   received ineffective assistance of counsel on various
12   additional grounds. As to these grounds, Wint contends that
13   the district court abused its discretion in resolving his
14   claims without holding a full testimonial hearing. The
15   district court resolved Wint’s motion on the basis of the
16   expanded written record, which included Wint’s allegations,
17   hearing and trial transcripts, and trial counsel’s detailed
18   affidavit and its attachments (including correspondence
19   between Wint and counsel). We conclude that the district
20   court did not abuse discretion.
21
22        In the context of a 28 U.S.C. § 2255 post-conviction
23   motion, “we have . . . held that when the judge that tried
24   the underlying proceedings also presides over the
25   [proceeding alleging ineffective assistance], a less-than
26   full-fledged evidentiary hearing may permissibly dispose of
27   claims where the credibility assessment would inevitably be
28   adverse to the petitioner.” Puglisi v. United States, 586
29   F.3d 209, 214 (2d Cir. 2009); see Chang v. United States,
30   250 F.3d 79, 86 (2d Cir. 2001) (holding it within district
31   court’s discretion to resolve ineffective assistance claim
32   on basis of submitted papers, including trial counsel’s
33   detailed affidavit contradicting defendant’s assertions).
34   This district judge had observed Wint’s sworn testimony at
35   the pre-trial suppression hearing, and found Wint to be “an
36   incredible witness.” United States v. Wint, No. 12-cr-85-
37   jgm-01, 2015 WL 2451783, at *5 (D. Vt. May 21, 2015); see
38   also United States v. Wint, No. 12-cr-85-jgm-01, 2014 WL
39   1453350, at *1, *8, *10 (D. Vt. Apr. 14, 2014).
40   Additionally, Wint made unsworn statements regarding the
41   alleged facts underlying his ineffective assistance claims
42   at a post-trial hearing; and the judge observed Wint’s trial
43   counsel throughout proceedings. The court was within its




                                  6
 1   discretion to determine that it had sufficient information
 2   from which to assess Wint’s credibility and claims.5
 3
 4        For the foregoing reasons, and finding no merit in
 5   Wint’s other arguments, we hereby AFFIRM the judgment of the
 6   district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10




         5
           Wint never requested a testimonial hearing in the
     district court, did not oppose the government’s motion for
     an affidavit by trial counsel, and declined to even respond
     to that affidavit or to submit a reply to the government’s
     opposition to his motion, which incorporated trial counsel’s
     affirmations. Cf. Chang, 250 F.3d at 81 (defendant
     expressed intent to examine former counsel under oath at
     hearing).
                                  7
