10-0713-cr
United States v. VanHoesen
                             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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9th day of December, two thousand eleven.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 DEBRA A. LIVINGSTON,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                             v.                                          No. 10-0713-cr

JOHN VANHOESEN, a.k.a. Johnny Cat,
                     Defendant-Appellant,

ERNEST CONLEY, a.k.a. Loc, a.k.a. E-Loc, a.k.a. EZ-Loc,
HECTOR DEJESUS, a.k.a. Hec, MARK LEWIS, SHATIA
WRIGHT, TRACY BATTLE, a.k.a. Grady, KEYMON
DOBBS, ALAN SKORUPSKI, KAMAR HARRISON,
a.k.a. Dolo, JOHN WELCOME, a.k.a. Dubbs, LAVAR
HOUTMAN, a.k.a. God of All Gods, a.k.a. Villain, a.k.a.
God, KHALIL BARNES, a.k.a. Crazy K, RAHMEL
CARTER, a.k.a. Dooder, AMIN COWAN, a.k.a. Ah,
ANTHONY FENNER, a.k.a. Ant, AHMAD FLEMING,
a.k.a. Silky, RAYQUINSHAWN HARRISON, a.k.a. Pilla,
TAKEEM HEATH, a.k.a. Ty-Nasty, LAMEL INMAN,
a.k.a. Ghost, a.k.a. Mel, KALI JOHNSON, a.k.a. Hersh,
DEAUNTTA MALLOY, a.k.a. Chef D, SANTONIEO
MILLER, JR., a.k.a. Kushawn, a.k.a. Daddy, RAMAAR
MILNER, a.k.a. Bizza, LAJUAN MORALES, a.k.a. Lay
Hoody, a.k.a. Cool, KEMIEK PAYNE, a.k.a. KP, SHABAR
PERKINS, a.k.a. Barsky, TARON ROBINSON, a.k.a.
Turtle, ELQUAN STURDIVANT, a.k.a. L Easy,
SHAMEEK K. THOMAS, a.k.a. Tarzan, a.k.a. Sha,
JOSHUA VANHOESEN, a.k.a. Scarlo, SHAHEEM
WHITE, a.k.a. Double S,
                                 Defendants.*
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APPEARING FOR APPELLANT:                          DAVID SAMEL, Esq., New York, New York.

APPEARING FOR APPELLEE:                      VIJAY SHANKER (Ishan K. Bhaba, Greg D.
                                             Andres, Acting Deputy Assistant Attorney
                                             General, and Lanny A. Breuer, Assistant Attorney
                                             General, on the brief), Appellate Section,
                                             Criminal Division, United States Department of
                                             Justice, Washington, D.C., Carlos A. Moreno and
                                             Daniel Hanlon, Assistant United States Attorneys
                                             for Richard S. Hartunian, United States Attorney,
                                             Northern District of New York, Albany, New
                                             York.

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

of New York (Gary L. Sharpe, Judge; David R. Homer, Magistrate Judge).

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

DECREED that the judgment of conviction entered on February 11, 2010, is AFFIRMED.

       Defendant John VanHoesen (“VanHoesen”) appeals from a judgment of conviction

entered after a jury trial at which he was found guilty of one count of conspiracy to possess

with intent to distribute 50 grams or more of crack cocaine, and three substantive counts of

possession of crack cocaine with intent to distribute, on two occasions in amounts of five or


       *
           The Clerk of Court is directed to amend the official caption to read as shown above.

                                                2
more grams. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), 846, 18 U.S.C. § 2. Presently

incarcerated serving a term of life imprisonment, VanHoesen submits that the district court

erred in (1) finding him competent to stand trial, (2) allowing him to represent himself,

(3) curtailing his cross-examination of two cooperating witnesses, and (4) sentencing him to

life imprisonment. He further challenges (5) the sufficiency of the evidence to support a jury

verdict finding him guilty of conspiracy and, specifically, of a conspiracy to traffic in 50

grams or more of crack cocaine. We assume the parties’ familiarity with the record of prior

proceedings and reference such matters only as necessary to explain our decision to affirm.

1.     Defendant’s Competence To Stand Trial

       We review a district court’s finding of defendant competency made after a hearing for

clear error and identify none here. See United States v. Morrison, 153 F.3d 34, 46 (2d Cir.

1998). There is no question that VanHoesen understood the nature and consequences of the

proceedings at issue; the only matter in dispute was his ability to consult with counsel and

to assist in preparing his defense. See Drope v. Missouri, 420 U.S. 162, 171 (1975). Both

the magistrate judge and district judge found VanHoesen competent in these respects after

hearing testimony and reviewing conflicting reports indicating that two psychiatrists deemed

VanHoesen competent, while a forensic psychologist, who had spent the most time with

defendant, did not. While VanHoesen devotes considerable effort on appeal to arguing that

the psychologist’s opinion deserved more weight, we identify no clear error in the district

court’s contrary assessment. See generally General Elec. Co. v. Joiner, 522 U.S. 136, 143

(1997) (stating that deference to district court’s assessment of expert testimony is “hallmark

                                              3
of abuse-of-discretion review”); United States v. Villegas, 899 F.2d 1324, 1341 (2d Cir.

1990) (stating that district court’s choice as between two permissible views of the evidence

as to competency “cannot be deemed clearly erroneous”); see also United States v. Nichols,

56 F.3d 403, 412 (2d Cir. 1995) (declining to question district court judgment as to

competency where one opinion of incompetency conflicts with other expert assessments).

Insofar as VanHoesen charges the magistrate judge with an error of fact regarding when Dr.

Ryan learned of past criminal proceedings in which VanHoesen was represented by counsel,

the point merits little discussion because the magistrate judge’s observation as to when this

information was obtained was tangential to his larger concern with the minimal weight the

psychologist accorded the information, a conclusion that would have obtained in any event.

Further, both the magistrate judge and the district judge permissibly relied on their own

assessments of VanHoesen’s intelligence, knowledge, and deportment in making their

independent competency determinations. See United States v. Hemsi, 901 F.2d 293, 295 (2d

Cir. 1990); accord United States v. Nichols, 56 F.3d at 411 (“In making a determination of

competency, the district court may rely on a number of factors, including medical opinion

and the court’s observation of the defendant’s comportment.”). On this record, the district

court did not clearly err in finding VanHoesen competent to stand trial.

       Nor was the district court required sua sponte to revisit the question of VanHoesen’s

competency to stand trial when his third appointed counsel indicated an intent to pursue an

insanity defense, an announcement that prompted VanHoesen’s request for the appointment

of new counsel or to represent himself. As the district court correctly observed, an insanity

                                             4
defense relates to a defendant’s culpability at the time he allegedly committed the offense,

not at the time of trial. See United States v. Valdez, 426 F.3d 178, 185 (2d Cir. 2005). While

“a trial court must always be alert to circumstances suggesting a change that would render

the accused unable to meet the standards of competence to stand trial,” Drope v. Missouri,

420 U.S. at 181, the record of the ensuing hearing on VanHoesen’s request to represent

himself, see Faretta v. California, 422 U.S. 806, 835-36 (1975), provides no basis for

concluding that there was reasonable cause to think that VanHoesen was incompetent to

stand trial despite the district court’s earlier findings to the contrary. Accordingly, the district

court did not abuse its discretion in failing sua sponte to hold a second competency hearing.

See United States v. Arenburg, 605 F.3d 164, 169 (2d Cir. 2010).

2.     Defendant’s Self-Representation

       a.      Defendant’s Competence To Proceed Pro Se

       VanHoesen submits that even if he was competent to stand trial, he was not competent

to conduct his legal defense pro se. The Supreme Court recognized this distinction in Indiana

v. Edwards, 554 U.S. 164, 178 (2008), in which it allowed trial courts to deny a defendant

the right to proceed pro se in situations in which he is “competent enough to stand trial”

under Supreme Court precedent, but “still suffer[s] from severe mental illness to the point

where [he is] not competent to conduct trial proceedings by [himself].”1 VanHoesen


       1
         Mindful that Edwards specifically reaffirmed Faretta, see Indiana v. Edwards, 554
U.S. at 178, a number of our sister circuits have construed Edwards to confer discretion, not
to impose a new duty. See United States v. Turner, 644 F.3d 713, 724 (8th Cir. 2011)
(“Edwards clarified that district court judges have discretion to force counsel upon the

                                                 5
contends that the district court was unaware of Edwards and mistakenly believed that it

lacked discretion to prevent VanHoesen from representing himself. No Edwards argument

was raised in the district court. Accordingly, we review only for plain error, see United

States v. Irving, 554 F.3d 64, 78 (2d Cir. 2009), and identify none.

       VanHoesen’s argument derives from the district court’s statement during the Faretta

hearing that “[u]nder the laws of the United States and under the Constitution, you [i.e.,

VanHoesen] have an absolute right to represent yourself if you wish to. That right, under the

law, can’t be tampered with by me.” App’x at 332. In context it is clear that the reason the

district court thought it could not “tamper” with VanHoesen’s right to represent himself was

because it found him competent to do so.

       At the lengthy Faretta hearing, held on January 5 and 8, 2009, the district court

reviewed each component of a criminal trial to ensure VanHoesen’s understanding of the

charges against which he would have to defend, the procedures that governed trial, and the

consequences, both legal and practical, of his failing to comply with such procedures. The



discrete set of defendants competent to stand trial but incompetent to represent themselves.
It does not mandate two separate competency findings for every defendant who seeks to
proceed pro se.” (internal citation omitted)); United States v. Berry, 565 F.3d 385, 391 (7th
Cir. 2009) (“The Constitution may have allowed the trial judge to block his request to go it
alone, but it certainly didn’t require it.” (emphasis omitted)); United States v. DeShazer, 554
F.3d 1281, 1290 (10th Cir. 2009) (“Thus, while the district court was not compelled to find
Mr. DeShazer competent to waive his right to counsel simply because the court had found
him competent to stand trial, it does not follow that the district court was absolutely
prohibited from doing so.”). We need not decide that question because we do not think the
record supports VanHoesen’s argument that the district court was oblivious to the Edwards
distinction.

                                              6
district court told VanHoesen that “the only reason” it was going through this process was

to determine “whether I let you represent yourself and under what terms and conditions.”

Id. at 327. This satisfactorily signals the district court’s awareness that a defendant’s

competence to represent himself may be different from his competence to stand trial.

Further, the district court indicated that it had again reviewed the competency hearing

transcript as it related to VanHoesen’s request to proceed pro se, with this different question

in mind. See id. at 414 (“Now, since then, of course, the issue is a little bit different, and the

issue is now whether or not you’re capable of representing yourself.”).

       The district court’s resolution of the self-representation issue in favor of competency

finds ample support in record evidence, including VanHoesen’s written submissions to the

district court demonstrating his active interest in his own defense, and his testimony and

responses to court inquiries indicating that he had performed his own legal research and had

a detailed understanding of how a trial works. Further, trial counsel’s failure to alert the

court to any concerns regarding VanHoesen’s competence to represent himself itself

“provides substantial evidence of the defendant’s competence.” Cf. United States v. Kirsh,

54 F.3d 1062, 1071 (2d Cir. 1995) (internal quotation marks omitted) (assessing defendant’s

competence to stand trial).

       Although VanHoesen now submits that his pro se defense was a “travesty”

demonstrating “awful judgment,” Appellant’s Br. at 40, a defendant’s failure effectively to

represent himself does not demonstrate that he was incompetent to do so under Edwards, and

cannot justify denying him his right to proceed pro se. See Faretta v. California, 422 U.S.

                                                7
at 834 (“[A]lthough [a defendant] may conduct his own defense ultimately to his own

detriment, his choice must be honored out of that respect for the individual which is the

lifeblood of the law.” (internal quotation marks omitted)).

       b.     Failure To Appoint New Counsel

       VanHoesen argues pro se that the district court violated the Sixth Amendment when

it failed to appoint a fourth counsel and forced him to represent himself by giving him the

impression that if he proceeded with assigned counsel he would be stripped of his right to

assist in his own defense. The point merits little discussion because the record shows that

the district court carefully explained to VanHoesen the difference between strategic choices

generally decided by counsel and decisions that could be made only by the defendant

himself.      To the extent VanHoesen sought new counsel because his third assigned

attorney proposed to pursue an insanity defense, the request is properly reviewed in the

context of defendant’s unwillingness to work with any of the three attorneys appointed for

him. See United States v. Schmidt, 105 F.3d 82, 89 (2d Cir. 1997) (rejecting defendant’s

claim that “she was coerced into self-representation because the district court, on the eve of

trial, refused to replace her third court-appointed attorney”). In sum, a court does not deprive

a defendant of the Sixth Amendment right to counsel when it is the defendant himself who

creates the conflicts that result in a breakdown of attorney-client communication. See

generally Morris v. Slappy, 461 U.S. 1, 14 (1983) (holding that there is no right to a

“meaningful attorney-client relationship”).



                                               8
3.     Sufficiency of the Evidence

       Having failed to secure acquittal pursuant to Federal Rule of Criminal Procedure 29,

VanHoesen argues that the evidence was insufficient to support his conspiracy conviction.

While our standard of review is de novo, see United States v. Pizzonia, 577 F.3d 455, 462

(2d Cir. 2009), “we view the evidence in the light most favorable to the government, drawing

all inferences in the government’s favor and deferring to the jury’s assessments of the

witnesses’ credibility,” United States v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (internal

quotation marks omitted). “We will sustain the jury’s verdict so long as any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

(internal quotation marks, citation, and emphasis omitted).

       a.     Distribution Conspiracy

       VanHoesen argues that no rational juror could have found that he was a member of

the charged drug-distribution conspiracy because the evidence established only a buyer-seller

relationship between himself and Ernest Conley. See id. at 71-72. He is wrong. The record

indicates that in his first conversation with Conley, VanHoesen solicited crack from the

established supplier by indicating that his purpose was to sell the drugs for a profit. Further,

VanHoesen implied an ongoing relationship when he told Conley that he already had

identified a ready market of customers. Conley himself confirmed that he fronted the first

quantity of drugs to VanHoesen with the understanding that he would be distributing them,

and in order to encourage future transactions. Indeed, the two men would engage in three

transactions over two days. The totality of these circumstances would permit a reasonable

                                               9
jury to conclude that the men’s relationship went beyond that of an arms-length buyer and

seller, see United States v. Parker, 554 F.3d 230, 236 (2d Cir. 2009) (noting that where

transferor is genuinely indifferent to the use the transferee intends to make of drugs, “[t]here

is no shared intention between the transferor and the transferee that further transfers occur”

(emphasis in original)), and had reached a common agreement to distribute drugs, see United

States v. Hawkins, 547 F.3d at 75 (finding agreement to distribute drugs where supplier

offered defendant source of cocaine and defendant provided supplier with “another

outlet—albeit small—for his contraband”).

       b.     Distribution Quantity

       VanHoesen argues that even if the evidence at trial was sufficient to prove conspiracy,

a rational jury could not find that he agreed to distribute 50 grams or more of crack. “A

member of a conspiracy is . . . liable for an act he agreed to and intended to commit in

furtherance of the conspiracy regardless of whether he ultimately committed the substantive

act.” United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003). Further, an agreement

need not be explicit, but may be implied from the totality of the evidence. See United States

v. Amato, 15 F.3d 230, 235 (2d Cir. 1994). From the evidence already referenced of the

men’s intent to establish an ongoing distribution scheme and the fact that VanHoesen

distributed over 15 grams of crack in two days, an operation halted only by his arrest on a

different charge, a rational jury could find beyond a reasonable doubt that VanHoesen and

Conley had tacitly agreed to distribute 50 grams or more of crack. See United States v.

Dallas, 229 F.3d 105, 110-11 (2d Cir. 2000) (holding that failure to consummate scheme

                                              10
does not preclude conspiracy conviction). Indeed, at the rate VanHoesen was selling crack

it would have taken the conspirators only a week to distribute such a quantity. Because we

conclude that the evidence of VanHoesen’s own conduct was sufficient to permit a

reasonable jury to find conspiratorial intent to distribute 50 grams or more of crack, we need

not consider whether the evidence was sufficient to hold him accountable for drug quantities

distributed by others in Conley’s broad distribution conspiracy.

4.     Cross-Examination

       a.     Tarver

       VanHoesen argues that the district court abused its discretion in prohibiting him from

cross-examining Tarver regarding her prior conviction for witness intimidation in violation

of New York Penal Law § 215.15. See United States v. Estrada, 430 F.3d 606, 615 (2d Cir.

2005). The Federal Rules of Evidence provide that a party may impeach a witness’s

character for truthfulness with “evidence that [the] witness has been convicted of a crime,

. . . if it readily can be determined that establishing the elements of the crime required proof

or admission of an act of dishonesty or false statement by the witness.” See Fed. R. Evid.

609(a)(2) (emphasis added). While witness intimidation in violation of New York Penal Law

§ 215.15 may aim at presenting dishonest or incomplete (and, therefore, misleading)

evidence in court, none of the elements of that crime require proof of an act of dishonesty or

false statement. Cf. United States v. Jefferson, 623 F.3d 227, 234 (5th Cir. 2010) (noting that

conviction under obstruction of justice statute, 18 U.S.C. § 1512(b)(3), based on intimidating

or threatening another person, does not necessarily “involve acts of dishonesty or false

                                              11
statement”). Although we will in some cases “look beyond the elements of the offense to

determine whether the conviction rested upon facts establishing dishonesty or false

statement,” United States v. Payton, 159 F.3d 49, 57 (2d Cir. 1998), VanHoesen made no

attempt to establish the underlying facts of Tarver’s conviction. We therefore identify no

abuse of discretion in precluding VanHoesen from eliciting evidence of Tarver’s conviction

for witness intimidation.

       b.     Conley

       The district court also acted well within its discretion in precluding VanHoesen from

questioning Conley regarding a September 11, 2006 telephone call in order to show that

Conley was at home during the time he said he was selling crack to VanHoesen. Because

Conley testified that he made the September 11, 2006 sale to VanHoesen at some time after

2:00 p.m., whereas the call at issue was recorded at approximately 3:00 p.m., the district

court reasonably precluded VanHoesen from pursuing a matter of such minimal relevance.

See United States v. Cedeño, 644 F.3d 79, 81-82 (2d Cir. 2011), cert. denied, No. 11-5531,

2011 WL 4536211 (U.S. Oct. 3, 2011); United States v. Quinones, 511 F.3d 289, 311 (2d

Cir. 2007) (“A district court has broad discretion to determine the relevancy of evidence.”

(internal quotation marks omitted)).

5.     Sentence

       a.     Mandatory Life Sentence

       VanHoesen contends that his life sentence, mandated under the provisions of 21

U.S.C. § 841(b)(1)(A)(iii) then in effect, violates the Eighth Amendment because it is grossly

                                             12
disproportionate to his offense of conviction.2 The particularly harsh sentence was statutorily

required because VanHoesen’s conviction for conspiracy to distribute 50 grams or more of

crack cocaine was his third felony drug offense. See id. § 841(b)(1)(A). The Eighth

Amendment does not prohibit Congress from choosing to punish recidivist offenders more

harshly than first-timer offenders, see Rummel v. Estelle, 445 U.S. 263, 276, 278 (1980)

(upholding mandatory life sentence for third-felony offender), or from choosing to punish

drug offenses with terms of life imprisonment, see Harmelin v. Michigan, 501 U.S. 957, 961,

994 (1991). In these circumstances, we cannot conclude that Congress’s choice was so

“grossly disproportionate” to the circumstances presented as to be unconstitutional. See

Harmelin v. Michigan, 501 U.S. at 1001 (Kennedy, J., concurring in part and concurring in

the judgment) (internal quotation marks omitted).




       2
          The Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372,
amended 21 U.S.C. § 841(b)(1)(A)(iii) by increasing the quantity of crack cocaine required
for a conviction under that subsection from 50 to 280 grams. VanHoesen suggested at oral
argument that the Act applies retroactively to his case, although he conceded that he did not
raise this argument in his briefs, and both his offense conduct and sentencing occurred before
the Act’s effective date. This argument, in any event, is unavailing in light of our precedent,
see United States v. Acoff, 634 F.3d 200, 202 (2d Cir. 2011), cert. denied, 131 S. Ct. 3007
(2011), and that of our sister circuits, see United States v. Goncalves, 642 F.3d 245, 251-55
(1st Cir. 2011); United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir. 2010); United States
v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011); United States v. Tickles, Nos. 10-30852, 10-
31085, 2011 WL 4953988, at *1 (5th Cir. Oct. 19, 2011); United States v. Carradine, 621
F.3d 575, 580 (6th Cir. 2010); United States v. Fisher, 635 F.3d 336, 338 (7th Cir. 2011),
cert. granted sub nom. Dorsey v. United States, No. 11-5683, 2011 WL 3422126, at *1 (U.S.
Nov. 28, 2011); United States v. Sidney, 648 F.3d 904, 908 (8th Cir. 2011); United States
v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011); United States v. Lewis, 625 F.3d 1224, 1228
(10th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010).

                                              13
       b.     Procedural Error

       VanHoesen argues that the concurrent thirty-year and life sentences imposed for his

three substantive convictions are infected by procedural error, specifically the district court’s

failure to consider the sentencing factors prescribed by 18 U.S.C. § 3553(a). This argument

is refuted by the record. Although the district court did not specifically reference the

§ 3553(a) factors, “we do not require robotic incantations that the district court has

considered each of the § 3553(a) factors.” United States v. Cavera, 550 F.3d 180, 193 (2d

Cir. 2008) (en banc) (internal quotation marks omitted). Such consideration is adequately

evidenced here by the district court’s implicit adoption of the facts stated in the pre-sentence

report, its explanation as to how it resolved VanHoesen’s various objections to the report,

and its specific concern that VanHoesen had “led the majority of [his] life violating state

laws.” App’x at 538-40. In sum, no procedural error renders the sentence unreasonable.

6.     Conclusion

       We have considered VanHoesen’s remaining arguments on appeal and conclude that

they are without merit. Accordingly, the judgment of conviction is AFFIRMED.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




                                               14
