U.S. v. Abdul-Aziz

• Decision Date: 29 May 2007
• Docket Number: No. 06-3032.,06-3032.
• Citation: 486 F.3d 471
• Parties: UNITED STATES of America, Appellee, v. Luqman ABDUL-AZIZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

486 F.3d 471

UNITED STATES of America, Appellee, v. Luqman ABDUL-AZIZ, Appellant.

No. 06-3032.

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2007.

Filed: May 29, 2007.

Kent Alan Gummert, argued, West Des Moines, IA, for appellant.

Edwin F. Kelly, Jr., Asst. U.S. Atty., argued, Des Moines, IA (Cliff Wendel, Asst. U.S. Atty., on brief), for appellee.

Before WOLLMAN and MELLOY, Circuit Judges, and NANGLE,¹ District Judge.

WOLLMAN, Circuit Judge.

Luqman Abdul-Aziz was convicted of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to a term of 33 months' imprisonment, followed by three years of supervised release. Abdul-Aziz appeals from his conviction and sentence. We vacate the sentence and remand for resentencing.

I.

In June 2004, police officers executed a search warrant at Abdul-Aziz's residence in Des Moines, Iowa. During the search of the residence, officers found a rifle located in the closet of one of the bedrooms. The rifle was enclosed in a case which, in turn, was enclosed in a box. In that same bedroom, officers also found numerous documents bearing Abdul-Aziz's name, including bank statements, bills, checks, a car title, tax statements, business cards, and a resume. Abdul-Aziz was subsequently indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (2000).

Prior to trial, Abdul-Aziz requested to proceed pro se and, after a colloquy with the district court, he was permitted to do so. Abdul-Aziz was provided with stand-by counsel in case he should change his mind during the proceedings. Abdul-Aziz thereafter proceeded pro se through much of the trial, but relied on stand-by counsel for a portion of it.

At trial, the government presented evidence of what was found at the residence, as well as the testimony of Officer Ronald Foster, who was present during the execution of the search warrant, and Special Agent Phillip Pritchett, who examined the rifle found during the search. The district court did not, however, admit the testimony of Neil Meoni, the individual who allegedly sold Abdul-Aziz the rifle. During trial, the government entered into evidence a stipulation acknowledging that Abdul-Aziz had been previously convicted of a crime punishable by more than one year.

During deliberations, the jury submitted a question asking for clarification regarding a jury instruction pertaining to the different kinds of possession. The district court declined to provide further clarification, and the jury subsequently returned a guilty verdict. At sentencing, the district court, pursuant to U.S.S.G. § 3C1.1, imposed an obstruction of justice enhancement because Abdul-Aziz testified at trial that he had no knowledge that the firearm was in the closet.

II.

Abdul-Aziz raises six issues on appeal, which we address in turn.

A.

Abdul-Aziz contends that his Sixth Amendment right to counsel was violated because his waiver of this right was not knowingly and intelligently given. The Sixth Amendment guarantees a defendant the right to counsel, as well as the right to waive counsel. United States v. Mentzos, 462 F.3d 830, 838 (8th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2079, ___ L.Ed.2d ___ (2007). Before permitting a defendant to represent himself, however, "the trial court must determine that he is competent to stand trial and that he is knowingly and voluntarily waiving his right." Wise v. Bowersox, 136 F.3d 1197, 1202 (8th Cir.1998). We review de novo the grant of a defendant's motion to represent himself and will uphold such grant "`if the record shows either that the court adequately warned him or that, under all the circumstances, he knew and understood the dangers and disadvantages of self representation.'" Mentzos, 462 F.3d at 838 (quoting United States v. Patterson, 140 F.3d 767, 774-75 (8th Cir.1998)).

We conclude that Abdul-Aziz was adequately warned about the dangers and disadvantages of self-representation and that his decision to proceed pro se was knowingly and intelligently given. Prior to allowing Abdul-Aziz to represent himself, the district court sought assurances from Abdul-Aziz that he understood the nature of the charges being brought against him, repeatedly warned Abdul-Aziz about the disadvantages and complexities involved in representing himself, and strongly encouraged him to seek the assistance of counsel. Despite these warnings, Abdul-Aziz still insisted on proceeding pro se, assuring the court that he understood the charges being brought against him and the ramifications of his decision. Further, the district court noted that Abdul-Aziz appeared to be an intelligent, well-spoken individual. He has at least several years of education beyond high school, had previously represented himself in criminal proceedings, and, as evidenced by his cross-examination of witnesses, objections, and motions at trial, had a sense of how to put on a defense — all evidence that he was "able to grasp the nature of the charges against him and that he had the intellectual capacity required to understand the consequences of his decision." Patterson, 140 F.3d at 775 (internal quotations and citations omitted). Additionally, Abdul-Aziz's consultation with his appointed stand-by counsel during the trial, and later decision to have him take over the case, further demonstrates that he was fully aware of his right to counsel. See Mentzos, 462 F.3d at 838.

Abdul-Aziz's contention that his waiver was not voluntary because he was allegedly forced to choose between himself and what he perceived to be incompetent counsel is unpersuasive. In his discussions with the district court, Abdul-Aziz said that he "would prefer to be represented by somebody," but that he desired to represent himself because he had been "sold out and misrepresented" and because "so much has sometimes been overshadowed and overlooked." Abdul-Aziz later agreed, however, that his appointed counsel was a capable attorney and permitted counsel to take over his representation during the trial. Further, Abdul-Aziz does not present any evidence showing, nor does he assert, that his appointed counsel was otherwise inadequate or unqualified. Accordingly, Abdul-Aziz's decision to represent himself was not compelled by a perception of incompetent counsel and his decision to do so cannot be considered involuntary.

B.

Abdul-Aziz asserts that the district court erred when, over his objection, it permitted Officer Ronald Foster to testify about a statement Abdul-Aziz made during the search of his residence. According to Foster's testimony, Abdul-Aziz had stated during the search that the officers "could not lock him up forever and that when he gets out somebody will be sorry." "We review the district court's decision to admit evidence over a party's objection for abuse of discretion." United States v. Parker, 364 F.3d 934, 941 (8th Cir.2004).

Abdul-Aziz argues that this testimony should have been excluded under Rules 402 and 403 of the Federal Rules of Evidence because it was irrelevant and unfairly prejudicial. As the government points out, however, the testimony was relevant to show Abdul-Aziz's consciousness of guilt. Furthermore, we cannot say that the probative value of this testimony was substantially outweighed by the danger of unfair prejudice. We therefore conclude that the district court did not abuse its discretion in admitting this portion of Foster's testimony.

C.

Abdul-Aziz contends that the district court erred when it excluded the testimony of Neil Meoni, the individual who allegedly sold the rifle to Abdul-Aziz. Abdul-Aziz objected to the government's attempt to call Meoni as a witness during its case in rebuttal because the government had not previously informed him that Meoni would be called as a witness. The district court agreed and excluded Meoni's testimony, but permitted the government to make an offer of proof, during which Meoni testified that he had sold the rifle to an Arabic man with an Arabic accent and identified Abdul-Aziz as the person to whom he sold the rifle.

Abdul-Aziz now contends that Meoni's testimony should have been admitted at trial because it would have been exculpatory.² The testimony was excluded at Abdul-Aziz's request, however, and he is therefore precluded from asserting on appeal that the district court's ruling was erroneous. McPheeters v. Black & Veatch Corp., 427 F.3d 1095, 1103 (8th Cir.2005) ("Counsel cannot now complain of a course of action he requested...."); Mach v. Abbott Co., 136 F.2d 7, 10 (8th Cir.1943) ("[A] party cannot successfully complain of error for which he himself is responsible or of rulings which he has invited the trial court to make.").

D.

During its deliberations, the jury submitted a question to the district court, which stated: "The jury would like more definition pertaining to different types of possession. i.e. Definition of constructive possession, specifically `power & intention at a given time . . .' Does this imply knowledge? Ref. Instruction 10." The district court declined to provide any further definitions and instructed the jury to refer to the instructions already provided. Abdul-Aziz contends that the district court erred in doing so.

"A trial court's response to a jury's request for supplemental instruction is a matter within the sound discretion of the trial court," which we review for abuse of discretion. United States v. Beckman, 222 F.3d 512, 521 (8th Cir.2000). "This court has recognized that, in responding to a jury's request for supplemental instruction, it may be proper at times to simply refer the jury back to the original instructions." Id. After reviewing the instructions provided to the jury, we are satisfied that they adequately defined the different types of possession, as well as what is required to prove knowledge. We therefore conclude that the district court did not abuse its discretion when it...