     09-2043-cr
     United States v. Weingarten



                                    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. W hen 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 for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 2nd day of February, two thousand eleven.
 4
 5   PRESENT:           JOSÉ A. CABRANES,
 6                      RICHARD C. WESLEY,
 7                      DEBRA ANN LIVINGSTON,
 8                                      Circuit Judges.
 9
10
11   UNITED STATES OF AMERICA,
12
13                                 Appellee,
14
15                      v.                                                       09-2043-cr
16
17   ISRAEL WEINGARTEN,
18
19                                 Defendant-Appellant.
20
21
22                                                        ANDREA GOLDBARG, Assistant United States
23                                                        Attorney (Jo Ann M. Navickas, Assistant United
24                                                        States Attorney, on the brief), for Benton J. Campbell,
25                                                        United States Attorney, Eastern District of New York,
26                                                        Brooklyn, NY, for Appellee.
27
28                                                        STANLEY NEUSTADTER, New York, NY
29                                                        (Demosthenes Lorandos and Ashish S. Joshi,
30                                                        Lorandos & Associates, Ann Arbor, MI, on the brief),
31                                                        for Defendant-Appellant.
 1


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

 3   DECREED that the judgment of conviction appealed from is AFFIRMED IN PART, REVERSED

 4   IN PART, and REMANDED.

 5          Defendant-Appellant Israel Weingarten (“Weingarten”) appeals from a May 8, 2009,

 6   judgment of the United States District Court for the Eastern District of New York (Gleeson, J.),

 7   sentencing him to a total of 30 years’ imprisonment and three years’ supervised release following

 8   his conviction by a jury on two counts of transportation of a minor with intent to engage in criminal

 9   sexual activity, in violation of 18 U.S.C. § 2423(a), and three counts of travel with intent to engage

10   in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). In an accompanying opinion filed

11   today, we assess the meaning of § 2423(b)’s requirement that a defendant “travel[] in foreign

12   commerce,” and reverse Weingarten’s conviction pursuant to Count Three on the basis of our

13   interpretation of that text. In this summary order, we reject his other challenges on appeal. We

14   assume the parties’ familiarity with the underlying facts and procedural history of the case.

15          Weingarten raises two additional issues on appeal: (1) whether he knowingly and voluntarily

16   waived his right to counsel and elected to proceed pro se; and (2) assuming he did so, whether the

17   district court abused its discretion in refusing to allow him hybrid representation, with Weingarten

18   examining some witnesses pro se and a retained “cross-examinator” questioning others. We

19   consider each issue in turn.

20          The Sixth Amendment guarantees criminal defendants the right to counsel, see, e.g., United

21   States v. Tracy, 12 F.3d 1186, 1191 (2d Cir. 1993), but a defendant also “has a constitutional right

22   to waive the right to assistance of counsel and present [his] own defense pro se, if the decision is


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 1   made ‘knowingly and intelligently,’” Clark v. Perez, 510 F.3d 382, 394-95 (2d Cir. 2008) (quoting

 2   Faretta v. California, 422 U.S. 806, 835 (1975)). A defendant who elects to proceed pro se “need

 3   not himself have the skill and experience of a lawyer in order competently and intelligently to choose

 4   self-representation.” Faretta, 422 U.S. at 835. Nonetheless, “he should be made aware of the

 5   dangers and disadvantages of self-representation, so that the record will establish that ‘he knows

 6   what he is doing and his choice is made with eyes open.’” Id. (quoting Adams v. United States ex

 7   rel. McCann, 317 U.S. 269, 279 (1942)). “To ensure the waiver is knowing and intelligent, a trial

 8   court should engage the defendant in an on-the-record colloquy” sufficient to persuade the court

 9   “[f]rom defendant’s answers and from its own observations . . . [that] the waiver is a rational one,

10   and that defendant has the mental capacity to comprehend the consequences of relinquishing a

11   constitutional right.” United States v. Schmidt, 105 F.3d 82, 88 (2d Cir. 1997).

12           Weingarten asserts that his decision to proceed pro se was neither knowing nor voluntary,

13   in that, inter alia, it followed the district court’s refusal to dismiss his attorneys prior to trial and to

14   grant him a continuance so that he could obtain new counsel. In United States v. Oberoi, 547 F.3d

15   436 (2d Cir. 2008), abrogated on other grounds by Bloate v. United States, 130 S. Ct. 1345 (2010),

16   we addressed a defendant’s contention that his guilty plea was invalid because, a week before trial,

17   the district court had refused to appoint new defense counsel, leaving him the choice of proceeding

18   with existing counsel or pro se. We observed:

19           In Schmidt, we rejected the defendant’s claim that “she was coerced into
20           self-representation because the district court, on the eve of trial, refused to replace her
21           third court-appointed attorney.” As a general matter, a district court “may not compel
22           defendant to proceed with incompetent counsel.” But “[b]ecause the right to counsel
23           of one’s choice is not absolute, a trial court may require a defendant to proceed to
24           trial with counsel not of defendant’s choosing.” And “[o]n the eve of trial, just as
25           during trial, a defendant can only substitute new counsel when unusual circumstances
26           are found to exist, such as a complete breakdown of communication or an

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 1          irreconcilable conflict.”
 2
 3   Oberoi, 547 F.3d at 458 (internal citations omitted); see also Wilson v. Walker, 204 F.3d 33, 38 n.3

 4   (2d Cir. 2000) (“[A] defendant is not deemed to have equivocated in his desire for self-representation

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

 6   of new counsel, or used it as a threat to obtain private counsel.” (quoting Williams v. Bartlett, 44

 7   F.3d 95, 100 (2d Cir. 1994))).

 8          A careful review of the record in this case indicates that the district court did not abuse its

 9   discretion in finding that relief of Weingarten’s counsel was unwarranted. See United States v.

10   Carreto, 583 F.3d 152, 158 (2d Cir. 2009) (“To determine whether the trial court abused its

11   discretion, we consider: (1) the timeliness of defendant’s request for new counsel; (2) the adequacy

12   of the trial court’s inquiry into the matter; (3) whether the conflict resulted in a total lack of

13   communication between the defendant and his attorney; and (4) whether the defendant’s own

14   conduct contributed to the communication breakdown.”). Weingarten’s request to relieve counsel

15   came just five business days before his trial was scheduled to begin, at which point his attorneys had

16   been representing him for months. Nevertheless, the district court conducted a detailed inquiry into

17   Weingarten’s concerns, and after reviewing his complaints and hearing from counsel, adequately

18   satisfied itself that there was neither a complete breakdown of communication nor an irreconcilable

19   conflict. Cf. id. at 154, 158-59. Finally, Weingarten’s statements, those of counsel, and the district

20   court’s post-trial order denying Weingarten’s motion for a new trial all suggest that Weingarten and

21   his supporters—the persons he referred to throughout trial as “his people”—shared much of the

22   blame for any disharmony between Weingarten and his attorneys. All four of the factors described

23   in Carreto, in other words, indicate that the district court did not abuse its discretion in denying


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 1   Weingarten’s last minute request to relieve counsel. Nor was it an abuse of discretion for the district

 2   court to deny Weingarten’s motion for a continuance to obtain additional counsel. See United States

 3   v. Pascarella, 84 F.3d 61, 68 (2d Cir. 1996); United States v. Rosenthal, 470 F.2d 837, 844 (2d Cir.

 4   1972) (“Judges must be vigilant that requests for appointment of a new attorney on the eve of trial

 5   should not become a vehicle for achieving delay.” (quoting United States v. Llanes, 374 F.2d 712,

 6   717 (2d Cir. 1967))).

 7          We similarly reject Weingarten’s assertions that he “never intended” to waive his right to

 8   counsel and that the district court’s inquiry into whether his waiver was knowing and intelligent was

 9   inadequate. Although, as discussed above, Weingarten felt that the denial of his requests to relieve

10   counsel and for a continuance left him “no choice,” the choice he made could not have been clearer.

11   In response to the question, “[D]o you want to represent yourself here?”, Weingarten stated, “I have

12   to do it, because I know my case better than anyone.” Trial Tr. at 13. He responded similarly to the

13   district court’s questions regarding his choice on several additional occasions. See Trial Tr. at 14,

14   15, 18. Moreover, the district court spoke at length with Weingarten about his decision and warned

15   him of the ramifications of proceeding pro se before ultimately satisfying itself that Weingarten had

16   made a knowing and intelligent waiver.

17          Finally, we review the district court’s decision to deny Weingarten hybrid representation for

18   abuse of discretion. United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989). Upon a review

19   of the record, we conclude that the district court’s denial of hybrid representation was well “within

20   the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (internal

21   quotation marks omitted).

22          We have considered Weingarten’s remaining arguments and find them to be without merit.


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1   For the foregoing reasons, and for the reasons stated in the accompanying opinion issued today,

2   Weingarten’s conviction under Count Three is REVERSED, his convictions under the remaining

3   counts in this case are AFFIRMED, and the case is REMANDED for further proceedings consistent

4   with this opinion.

5


6                                                      FOR THE COURT:

7                                                      Catherine O’Hagan Wolfe, Clerk

8




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