United States v. Hakim

• Decision Date: 14 April 2022
• Docket Number: 19-11970
• Citation: 30 F.4th 1310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Saleem HAKIM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

30 F.4th 1310

UNITED STATES of America, Plaintiff-Appellee,

v.Saleem HAKIM, Defendant-Appellant.

No. 19-11970

United States Court of Appeals, Eleventh Circuit.

Filed: April 14, 2022

Yael Tuvia Epstein, Elissa Hart-Mahan, U.S. Department of Justice, Appellate Section Tax Division, Washington, DC, Katie Bagley, Gregory Victor Davis, Joseph Brian Syverson, Samuel Robert Lyons, U.S. Department of Justice, Tax Division, Washington, DC, Jane Elizabeth McBath, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Plaintiff-Appellee.

Jamila Marjani Hall, Jones Day, Atlanta, GA, Andrew Ellis, Korein Tillery, LLC, St. Louis, MO, for Defendant-Appellant.

Before William Pryor, Chief Judge, Grant, and Anderson, Circuit Judges.

William Pryor, Chief Judge:

This appeal concerns whether a defendant's waiver of his right to counsel, U.S. CONST. amend. VI, is knowing when a court gives materially incorrect or misleading information about his potential maximum sentence. A jury found Saleem Hakim guilty as charged on three misdemeanor counts of willful failure to file a federal income tax return. See 26 U.S.C. § 7203. Although Hakim was represented by counsel at trial, he lacked representation during the pretrial process. At his arraignment, Hakim expressed his desire to waive his right to counsel and to represent himself.

The magistrate judge found that Hakim's waiver was knowing after misinforming him that the maximum sentence he could receive if convicted was 12 months of imprisonment. After trial, the district court sentenced Hakim to 21 months of imprisonment. Hakim now argues that his purported waiver of counsel was not knowing. Because the magistrate judge gave materially incorrect information about "the possible punishment he faced, we hold that there was no knowing and intelligent waiver of [Hakim's] right to counsel." Molignaro v. Smith , 408 F.2d 795, 796 (5th Cir. 1969) (Wisdom, J.). And because "the defendant need not show prejudice to obtain a reversal," United States v. Stanley , 739 F.3d 633, 644 (11th Cir. 2014), we vacate and remand.

I. BACKGROUND

The United States filed an information charging Saleem Hakim with "willfully fail[ing] to make and file with the Internal Revenue Service ... an income tax return for each of the calendar years" 2011, 2012, and 2013, despite knowing that "he and his spouse had and received gross income in excess of the minimum filing threshold." At his arraignment, the magistrate judge advised Hakim that he "ha[d] the right to a lawyer" and that the court "would appoint one for [him] free of charge" if he could not afford one. Brian Mendelsohn, the lawyer who would have been appointed to represent Hakim, informed the court that Hakim "wishe[d] to represent himself." After the magistrate judge announced his intention to "appoint and allow Mr. Mendelsohn to represent [Hakim] for purposes solely for [the arraignment]," Hakim "object[ed]," and the magistrate judge proceeded with "Hakim representing himself for purposes of" the arraignment.

The magistrate judge acknowledged that Hakim had an "absolute constitutional right ... to represent [him]self," but that the law first required that the court "determine[ ] that [he was] able to make that decision ... willfully and also with full knowledge of [his] rights in the law." The magistrate judge then asked Hakim a series of questions—"about [his] employment, [his] history, [and his] past"—to make that determination. Hakim responded that he would "remain silent" based on a series of incoherent and frivolous arguments. Hakim asserted that he would "address th[e] matter as the authorized representative for the so-called defendant in the all caps style Saleem Hakim," but that "this Court hasn't presented anything to [him] that would give [him] any indication that they've got subject matter o[r] personal jurisdiction." He also asserted that he "s[aw] this as being double jeopardy."

The magistrate judge then advised Hakim about the proceedings that lay ahead. He read aloud the information against Hakim and then informed Hakim that "[i]t is a criminal case, a Class A misdemeanor, meaning that it's punishable by a potential term of imprisonment by up to one year ." (Emphasis added.) Later during the arraignment, the magistrate judge repeated this advice: "[T]his is again a Class A misdemeanor, so we're not talking about a felony involving imprisonment beyond one year ." (Emphasis added.) At no point did the government dispute the veracity of the magistrate judge's advice about the term of imprisonment; it instead supplemented that advice with more information about potential penalties associated with these offenses, such as the maximum fine and supervised release.

The magistrate judge warned Hakim not to represent himself "because of the severity and seriousness of this case and the consequences to [Hakim] if convicted." And after explaining at length the risks and dangers associated with representing himself, the magistrate judge acknowledged that there was "a series of other questions" that "[the Supreme Court] suggests that [he was] to ask [Hakim] in order to make a decision about whether or not [Hakim] [was] in right mind," but "inferr[ed] that's futile here," as Hakim would deliver "the same speech" involving frivolous and incoherent arguments as before.

After asking Hakim whether it was "still [his] desire at th[at] time to represent [him]self and not accept appointment of Mr. Mendelsohn to represent [him]," Hakim continued his incoherence:

I am Saleem Naazir, family of Hakim, a living male on the land and soil jurisdiction, as one of the people of the several states, having owner's equity and beneficial interest in the all caps style, Capitis Diminutio Maxima Saleem Naazir Hakim, which is an ens legis aka Saleem N. Hakim, all caps, and aka Saleem Hakim, who is allegedly being charged here as a defendant.

The magistrate judge later said that Hakim would proceed "by way of counsel" unless Hakim "clearly and unequivocally assert[ed] that [he] [was] intending to represent [him]self."

Later, when the magistrate judge said that he would "proceed with Mr. Mendelsohn as appointed for [Hakim]," Hakim responded, "No. I'll make it clear, because I want to object to you appointing counsel. It is my ... intention[ ] to handle this matter." The magistrate judge "interpret[ed] [that statement] as [Hakim] clearly and unequivocally stating ... that" Hakim would represent himself. And Hakim responded affirmatively.

The magistrate judge then "f[ound] that the defendant ... knowingly and intelligently and voluntarily waiv[ed] his right to counsel against [the court's] advice." And the magistrate judge appointed Mendelsohn to serve as standby counsel if Hakim later changed his mind. But Hakim asserted that he was not "waiving any rights" because "I'm choosing to operate as a pro per to address this matter regarding this person." The magistrate judge "f[ound] those statements to be an attempt to confuse the record here."

The magistrate judge reiterated his finding that Hakim was knowingly and voluntarily waiving his right to counsel. The magistrate judge found that "[Hakim] is understanding the proceeding and having an intelligent conversation with [the court] about ... what [Hakim is] facing ... and making arguments that while meritless ... reflect an understanding of the court proceeding." "So [the magistrate judge] f[ound] that [Hakim] [was] capable of exercising his constitutional right to represent himself" and entered a plea of not guilty over the same unorthodox objections.

Hakim's dilatory tactics and obscurantism continued more than three months later at his pretrial conference before the district court. Mendelsohn informed the district court that Hakim had sent him a letter the week before "in which he indicated that [Mendelsohn] was fired." Mendelsohn clarified that Hakim was "not interested in any assistance," "ha[d] not taken any [assistance] from [Mendelsohn]," and "that [they] ha[d] basically zero communication." The government represented that "in a prior conversation with [Hakim], a plea offer was brought up ... but [that] there was no follow-up from [Hakim] after that conversation." The district court then explained to Hakim that pleading guilty "is a mitigating factor that leads to a reduction in the score under the sentencing guidelines" and that if he desired to avail himself of that benefit, he would have to plead guilty within the next week.

Hakim moved for a continuance because he wanted "the opportunity to seek counsel of [his] own choosing," but the district court found that Hakim was equivocating on the meaning of the word "counsel" and was "not trying to communicate with [the district court]." The district court found that, "in fact, what [Hakim] said was that [he] want[ed] to seek counsel. And when [the district court] asked whether that meant a lawyer, [Hakim] refused to answer that question." Hakim admitted to not speaking with any other lawyer to assist him, and later—after the district judge's herculean efforts to elicit a clear answer—Hakim admitted that he "understand[s] a lawyer to be a member of a bar, which is private, so that's something that [he was] not interested in." Hakim said that he "stipulate[d] to all of the facts" and announced his intention not to "dispute ... any of the facts" in the case against him. The district court denied the motion to continue based on its findings that Hakim "ha[d] indicated to [the court], quite clearly, [he] d[id] not intend to hire a lawyer," and that he "indicated that [he] [did not] intend to contest anything at trial."

The district court convened another hearing later that month because Hakim represented that he wished "to enter a change of plea." Hakim at first affirmed that he "want[ed] to enter a plea of guilty," and that he came to that decision "on [his] own," without help from Mendelsohn. And the district court confirmed that there was no plea agreement...