United States v. Hameen

• Docket Number: 19-14279,22-12968
• Decision Date: 18 September 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMAAL A. HAMEEN, a.k.a. Charles Flowers, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

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UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAMAAL A. HAMEEN, a.k.a. Charles Flowers, Defendant-Appellant.

Nos. 19-14279, 22-12968

United States Court of Appeals, Eleventh Circuit

September 18, 2023

DO NOT PUBLISH

Appeals from the United States District Court for the Middle District of Florida D.C. Docket No. 3:18-cr-00115-MMH-JBT-1

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Before LAGOA, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM

Jamaal Abu Talib Hameen appeals his conviction and sentence for possession of a firearm by a convicted felon.^[1] First, he argues that the district court erred in permitting him to proceed pro se at sentencing without conducting a second Faretta ^[2] hearing. Second, he argues that the district court abused its discretion by finding that he had failed to show excusable neglect for his untimely Rehaif ^[3] motion for a judgment of acquittal or, in the alternative, for a new trial. Third, he contends that the omission of the knowledge-of-status element from the indictment and jury instructions constituted plain error that prejudiced his substantial rights and infected the fairness, integrity, or public reputation of the proceedings. Fourth, he contends that 18 U.S.C. § 922(g) is an unconstitutional exercise of Congress's authority under the Commerce Clause. Fifth, Hameen contends that the district court erred when it determined that his prior Florida conviction for aggravated assault was a "violent felony" under the Armed Career Criminal Act ("ACCA") and a "crime of violence" under

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the Sentencing Guidelines. Sixth, he contends that the district court erred in determining that his prior Florida drug convictions, pursuant to Fla. Stat. § 893.13, were "serious drug offenses" under the ACCA and "controlled substance offenses" under U.S.S.G. § 2K2.1(a)(2). Finally, he contends that his ACCA-enhanced sentence is unconstitutional.

I. DISCUSSION

A. Second Faretta Hearing

A district court's conclusion that a defendant's waiver of his Sixth Amendment right to counsel was knowing and voluntary is a mixed question of law and fact that we review de novo. United States v. Garey, 540 F.3d 1253, 1268 (11th Cir. 2008) (en banc). The government bears the burden of proving the waiver was valid in a case on direct appeal. Id. We review this de novo. United States v. Hakim, 30 F.4th 1310, 1318 (11th Cir. 2022).

A defendant's right to self-representation is implicit in the Sixth Amendment. Faretta, 422 U.S. at 819. To do so, the defendant must knowingly and intelligently waive his right to counsel and must be made aware of the dangers and disadvantages of self-representation. Id. at 835. However, the right to self-representation is not absolute. Indiana v. Edwards, 554 U.S. 164, 171 (2008). A trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. Faretta, 422 U.S. at 834 n.46; see also United States v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995) (stating that "a defendant

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who misbehaves in the courtroom may forfeit his constitutional right to be present at trial").

The "ideal method of assuring that a defendant understands the consequences of a waiver is for the trial court to conduct a pretrial hearing at which the district court should inform the defendant of the nature of the charges against him, possible punishments, basic trial procedure and the hazards of representing himself." Garey, 540 F.3d at 1266 (quotation marks omitted). However, failing to hold a Faretta hearing is not an error as a matter of law if the record demonstrates that the defendant knowingly and voluntarily elected to represent himself. Nelson v. Alabama, 292 F.3d 1291, 1295 (11th Cir. 2002). We have observed that the ultimate test is the defendant's understanding, stating that a waiver may be valid where the record establishes that the defendant understood the risks of self-representation and freely chose to face them. United States v. Owen, 963 F.3d 1040, 1049 (11th Cir. 2020).

Although we have not yet addressed in a published opinion the continuing validity of a valid waiver, several circuit courts have held that a valid waiver remains in effect at subsequent proceedings in the absence of an explicit revocation by the defendant or a sufficient change of circumstances that would suggest that the district court should make a renewed inquiry of the defendant. See, e.g., United States v. Hantzis, 625 F.3d 575, 581 (9th Cir. 2010) (persuasive authority) (stating that no federal circuit that has considered the issue "has held that renewed Faretta warnings

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are required at each subsequent court proceeding"); United States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004) (persuasive authority) (adopting the rule that "a defendant's waiver of counsel at trial carries over to subsequent proceedings absent a substantial change in circumstances"); United States v. Unger, 915 F.2d 759, 762 (1st Cir. 1990) (persuasive authority) (holding that the district court was free to find that the defendant's earlier waiver was still in force at the sentencing hearing in the absence of intervening events); United States v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989) (persuasive authority) ("Once the defendant has knowingly and intelligently waived his right to counsel, only a substantial change in circumstances will require the district court to inquire whether the defendant wishes to revoke his earlier waiver."); Panagos v. United States, 324 F.2d 764, 765 (10th Cir. 1963) (persuasive authority) (concluding that there were no facts or circumstances preventing "the initial waiver of the right to counsel, knowingly and intelligently made, from extending to and being fully effective at the time of sentencing"); Davis v. United States, 226 F.2d 834, 840 (8th Cir. 1955) (persuasive authority) (holding that defendant's waiver of counsel when pleading guilty was an implied waiver as to any subsequent proceedings, including sentencing four days later).

We have recognized that a valid waiver of counsel may occur not only when a cooperative defendant affirmatively invokes his right to self-representation, but also when an uncooperative defendant rejects the only counsel to which he is constitutionally

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entitled, understanding his only alternative is self-representation. Garey, 540 F.3d at 1265. The defendant filed a motion to disqualify his counsel and substitute different counsel based on purported irreconcilable differences and conflicts of interest. Id. at 1259. After a hearing, the trial court denied the defendant's motion and told him he could either accept his court-appointed counsel or proceed pro se. Id. After further colloquy in which the defendant repeatedly refused to waive his right to counsel but also refused to let his court-appointed counsel represent him, the defendant stated he was involuntarily electing to represent himself, and the district court ultimately found that he had knowingly and voluntarily decided to proceed pro se. Id. at 1259-60. We stated that, when an indigent defendant rejects competent, conflict-free counsel, he may waive his right to counsel "by his uncooperative conduct, so long as his decision is made with knowledge of his options and the consequences of his choice." Id. at 1266. We characterized our holding as merely recognizing that, "in some instances, a defendant's conduct will reveal a voluntary decision to choose the path of self-representation over the continued assistance of counsel." Id.

We have further stated that "[a] defendant cannot use the right to counsel as a means to manipulate the court and cause delay" and "may not be put to service as a means of delaying or trifling with the court." United States v. Graham, 643 F.3d 885, 894 (11th Cir. 2011) (quotation marks omitted). Evidence of a defendant's manipulation or intentional delay implies his greater

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understanding of the proceedings and an understanding of the risks and complexities of a criminal trial. Owen, 963 F.3d at 105152.

In McLeod, the defendant engaged in "abusive, threatening, and coercive" conduct toward his second appointed counsel, which caused counsel to move to withdraw. 53 F.3d at 326. The district court did not allow the defendant to testify at the hearing held on counsel's motion after he refused to take an oath, and the defendant requested a third attorney after the hearing. Id. We held that, even though the district court did not warn the defendant that his misbehavior may lead to his self-representation, the district court properly concluded that the defendant had forfeited his right to counsel. Id.

Here, the district court did not err in failing to conduct a second Faretta hearing, because Hameen's alleged mental health issues did not rise to the level of an intervening event that sufficiently changed his prior waiver to the point that it was undermined. First, the record indicates that Hameen did not have a history of serious mental health issues. He testified at the Faretta hearing that, besides a brief stint in counseling for depression in 2006, he had no history of mental illness. He also denied any psychiatric or psychological treatment and testified that he periodically obtained religious counseling, not professional counseling. Notably, the unobjected-to facts in the PSI stated that Hameen was diagnosed with a personality disorder while enlisted in the military and was discharged after becoming medically unstable. But

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the probation officer did not receive a response to a request for Hameen's military records and noted that Hameen told Dr. Demery during the competency evaluation that he was discharged for smoking marijuana, not mental illness. Although medical records showed that Hameen had previously been diagnosed with PTSD, Dr. Demery reported in his competency evaluation and testified at the competency hearing that Hameen did not have a history of serious mental illness that would serve as a basis...