United States v. Hage (Mamdouh Mahmud Salim) ( 2023 )

21-2442 (L)
United States v. Hage (Mamdouh Mahmud Salim)
In the
United States Court of Appeals
For the Second Circuit
August Term, 2022
Nos. 21-2442, 21-3148, 23-6185
UNITED STATES OF AMERICA,
Appellee,
v.
WADIH EL HAGE, AKA ABDUS SABBUR, FAZUL ABDULLAH
MOHAMMED, AKA HARUN FAZHL, AKA FAZHL ABDULLAH, AKA
FAZHL KHAN, MOHAMED SADEEK ODEH, AKA ABU MOATH, AKA
NOURELDINE, AKA MARWAN, AKA HYDAR, MOHAMED RASHED
DAOUD AL-'OWHALI, AKA KHALID SALIM SALEH BIN RASHED, AKA
MOATH, AKA ABDUL JABBAR ALI ABEL-LATIF, USAMA BIN LADEN,
AKA USAMAH BIN-MUHAMMAD BIN-LADIN, AKA SHAYKH USAMAH
BIN-LADIN, AKA MUJAHID SHAYKH, AKA HAJJ, AKA AL QAQA, AKA
THE DIRECTOR, MUHAMMAD ATEF, AKA ABU HAFS, AKA ABU HAFS
EL MASRY, AKA ABU ABU HAFS EL MASRY E KHABIR, AKA TAYSIR,
AKA AHEIKH TAYSIR ABDULLAH, MUSTAFA MOHAMED FADHIL, AKA
MUSTAFA ALI ELBISHY, AKA HUSSEIN, AKA HASSAN ALI, KHALFAN
KHAMIS MOHAMED, AKA KHALFAN KHAMIS, AHMED KHALFAN
GHAILANI, AKA FUPI, AKA ABUBAKARY KHALFAN AHMED
GHALILIANI, SHEIKH AHMED SALIM SWEDAN, AKA SHEIKH
BAHAMADI, AKA AHMED ALLY, ALI MOHAMED, AKA OMAR, AKA
ALI ABDELSEOUD MOHAMED, AKA ABU OMAR, AKA HAYDARA, AKA
TAYMOUR ALI NASSER, AKA AHMED BAHAA ADAM, AYMAN AL
ZAWAHIRI, AKA ABDEL MUAZ, AKA THE DOCTOR, KHALED AL
FAWWAZ, AKA ABU OMAR, AKA KHALED ABDUL KHALED ABDUL
RAHMAN, AKA HAMAD AL FAWWAZ, HAMAD, IBRAHIM EIDAROUS,
AKA IBRAHIM H.A. EIDAROUS, AKA DAOUD, AKA ABU ABDULLAH,
AKA IBRAHIM, FAHID MOHAMMED MSALAM, AKA FAHAD M. ALLY,
ADEL ABDEL BARY, AKA ADEL M.A.A.A. BARY, AKA ABBAS, AKA
ABU DIA, AKA ADEL, SAIF AL ADEL, AKA SAIF, ABDULLAH AHMED
ABDULLAH, AKA ABU MOHAMED EL MASRY, AKA SALEH, AKA ABU
MARIUM, MUSHIN MUSA MATWALLI ATWAH, AKA ABDEL RAHMAN
AL MUHAJER, AKA ABDEL RAHMAN, ANAS AL LIBY, AKA NAZIH AL
RAGHIE, AKA ANAS AL SEBIA, L'HOUSSIANE KHERCHTOU, AKA ABU
TALAL, AKA TALAL, AKA YUSUF, AKA JOSEPH, AKA JAMAL,
MOHAMED SULEIMAN AL NALFI, AKA NALFI, AKA ABU MUSAB, AKA
MOHAMED SULEIMAN ADAM, JAMAL AHMED MOHAMMED ALI AL-
BADAWI, AKA ABU ABED AL RAHMAN AL-BADAWI, FAHD AL-QUSO,
AKA ABU HATHAYFAH AL-ADANI, SULAIMAN ABU GHAYTH,
Defendants,
MAMDOUH MAHMUD SALIM, AKA ABU HAJER AL IRAQI, AKA ABU
HAJER,
Defendant-Appellant.
On Motion to Consider Appellant’s Pro Se Filing
SUBMITTED: JULY 20, 2023
DECIDED: JULY 20, 2023
Before: NARDINI, Circuit Judge, in Chambers.
2
Mamdouh Mahmud Salim moves for the Court to consider his
pro se supplemental brief in addition to his counseled brief, and to
supplement the record. Salim’s motions merit this chambers opinion
to explain that a party has no right to such hybrid representation and
that the reasons for disfavoring the practice in the district court apply
with equal force in this Court. Accordingly, the motion is denied.
Stephen J. Ritchin, Assistant United States
Attorney, for Damian Williams, United
States Attorney for the Southern District of
New York, for Appellee.
Andrew Freifeld, New York, NY, for
Defendant-Appellant.
WILLIAM J. NARDINI, Circuit Judge:
Pending before me as applications judge are Mamdouh
Mahmud Salim’s motions for this Court to consider his pro se filing
in addition to his counseled brief, and to supplement the record.
These motions merit this chambers opinion to explain that a party has
no right to such hybrid representation and that the reasons for
disfavoring the practice in the district court apply with equal force in
this Court.
3
***
Salim’s underlying appeal arises from the government’s
dismissal, on May 8, 2019, of several indictments against him. Those
indictments had been pending since 1999, when Salim was charged
for his alleged role in the 1998 bombings of the U.S. embassies in Dar
es Salaam and Nairobi. See United States v. Salim, 549 F.3d 67, 70 (2d
Cir. 2008). The al Qaeda-directed attacks killed 224 people and
wounded thousands more. See In re Terrorist Bombings of U.S.
Embassies in E. Afr., 552 F.3d 93, 104 (2d Cir. 2008).
Salim never went to trial on those charges. While in pre-trial
detention, he stabbed a prison guard in the eye with a sharpened
plastic comb, piercing his brain. 1 See United States v. Salim, 690 F.3d
115, 119–20 (2d Cir. 2012). Salim pled guilty to conspiracy to murder
1 Salim later explained that he planned to steal the guard’s keys so that he
could attack his lawyers, whose representation he believed was inadequate, in an
attorney-inmate meeting room, forcing them to withdraw and the district court to
appoint substitute counsel. Salim, 690 F.3d at 119. In the event, Salim was subdued
by other guards en route. Id. The guard lost his left eye and suffered brain damage
that left him partially paralyzed on his right side and “interfered with other
normal functions, including his ability to speak and write.” Id. at 120.
4
and attempted murder of a federal official. Id. at 120. After an appeal
that resulted in a remand for resentencing, he was sentenced to life in
prison. Id. at 121. Salim is serving that sentence.
After Salim’s conviction, his original indictment sat untouched
until May 8, 2019, when the government filed a nolle prosequi, which
the court approved, dismissing the charges. Salim then moved to set
aside the order of dismissal, arguing that he had a right to be tried on
the charges or to have the indictment dismissed with prejudice, and
that the government was still using the existence of the dismissed
indictment to justify the special administrative measures to which he
was subject. The court denied Salim’s motions. Salim twice sought,
and the district court twice denied, reconsideration; Salim appealed
both denials.
On appeal, Salim filed two pro se briefs (the second
superseding the first). Then, he sought appointment of counsel under
the Criminal Justice Act. On June 24, 2022, this Court appointed
5
counsel to represent Salim. Salim’s attorney, fearing that Salim’s
appeals were untimely, successfully moved to stay the appeals
pending the district court’s decision on Salim’s petition for a writ of
error coram nobis in the district court. When the court denied that writ
on February 21, 2023, Salim appealed for a third time.
Upon receiving the appeal, this Court inquired whether
“counsel for Appellant . . . intend[ed] to supplement or replace”
Salim’s earlier pro se brief. Dkt. No. 128. Salim’s lawyer indicated in
a letter that he intended his counseled brief to replace the pro se brief.
The next day, the Court lifted the stay, deemed Salim’s pro se brief
withdrawn, and consolidated the three appeals. Salim timely filed his
counseled brief on April 25, 2023. The government’s brief is due July
25, 2023.
In a June 7, 2023, pro se filing, Salim sought to file a pro se
supplemental brief and to introduce two exhibits that were not part
of the record in the district court. On June 21, 2023, Salim filed a
6
counseled motion asking the Court to consider part of Salim’s pro se
supplemental brief and the two exhibits. The government filed an
opposition on July 10, 2023, and Salim filed a reply on July 17, 2023.
***
The Sixth Amendment gives criminal defendants the right to
representation by counsel or, should they so choose, to represent
themselves. Faretta v. California, 422 U.S. 806, 834–35 (1975). A
defendant has, however, no right to “hybrid” representation in which
he is represented by counsel but supplements his lawyer’s work with
selected pro se submissions. United States v. Rivernider, 828 F.3d 91,
108 (2d Cir. 2016). 2 Although a court may, in its discretion, allow pro
se appearances from a counseled defendant, Clark v. Perez, 510 F.3d
2 See also McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (“Faretta does not
require a trial judge to permit ‘hybrid’ representation . . . .”); United States v.
Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (“[T]here is no constitutional right to hybrid
representation . . . where [the defendant] share[s] the duties of conducting her
defense with a lawyer.”); United States v. Cyphers, 556 F.2d 630, 634 (2d Cir. 1977)
(“[A] defendant who is represented by counsel has no sixth amendment right to
participate as co-counsel.”); United States v. Wolfish, 525 F.2d 457, 463 n.2 (2d Cir.
1975) (“There is nothing in Faretta or in any statute which suggests that a defendant
may both have an attorney and represent himself.”).
7
382, 395 (2d Cir. 2008), the defendant cannot switch between pro se
and counseled modes at will, because the two rights “cannot be . . .
exercised at the same time,” O’Reilly v. New York Times Co., 692 F.2d
863, 868 (2d Cir. 1982) (internal quotation marks omitted).
Permitting such hybrid representation is not only unnecessary;
it is also unwise. For one thing, a pro se supplemental brief permits a
counseled defendant to make an end run around our procedural
rules. Appellate briefs are subject to strict word limits under Rule 32
of the Federal Rules of Appellate Procedure, and parties face briefing
deadlines imposed by scheduling orders of this Court. When a party
submits a pro se supplemental brief after a counseled brief, it
effectively obtains both an extension and an opportunity to breach the
word limit. Even the liberality we extend to pro se litigants does not
license failure “to comply with relevant rules of procedural and
substantive law.” Faretta, 422 U.S. at 834 n.46. There is even less
reason for us to allow counseled parties to bend the rules.
8
Even so, perhaps it would be worth letting parties dodge
deadlines and word limits if hybrid representation provided clear
benefits to parties or the Court. It does not. In almost every case,
litigants will fare better if they rely on the assistance of counsel rather
than “their own unskilled efforts.” Faretta, 422 U.S. at 834. 3 Parties
should, of course, discuss potential arguments with their lawyers, but
it is the lawyer, not the party, who is best placed to decide which
arguments to make, and how to make them. See McCoy v. Louisiana
138 S. Ct. 1500, 1508 (2018) (“[T]he lawyer’s province” includes
deciding which “arguments to pursue.” (internal quotation marks
omitted)). “A brief that raises every colorable issue runs the risk of
burying good arguments” under weak ones. Jones v. Barnes, 463 U.S.
745, 753 (1983). Allowing “the client, not the professional advocate,
. . . to decide what issues are to be pressed” undermines one of the
3See also Powell v. State of Ala., 287 U.S. 45, 69 (1932) (“Even the intelligent
and educated layman has small and sometimes no skill in the science of law. . . .
He requires the guiding hand of counsel at every step in the proceedings against
him.”).
9
main reasons for having a lawyer in the first place. Id. at 751. A
defendant who switches horses midstream risks hurting himself and
muddying the waters for everyone else.
For that reason, at the district court level, although defendants
are free to choose either legal representation or to go it alone, they are
not always free to change their minds. Once a trial has begun, a
counseled defendant’s right to represent himself is “sharply
curtailed.” United States v. Stevens, 83 F.3d 60, 67 (2d Cir. 1996)
(internal quotation marks omitted). A court considering such a
request by a defendant “must weigh the prejudice to the legitimate
interests of the defendant against the potential disruption of
proceedings already in progress.” Id. (internal quotation marks
omitted).
Requests for hybrid representation are even more disfavored.
A defendant has no constitutional or statutory right to act as “co-
counsel in his defense,” and the decision to grant or deny “hybrid
10
representation lies solely within the discretion of the trial court.” Id.(internal quotation marks omitted). Particularly where, as here, the
defendant makes no claim “that his counsel was not adequately
representing him,” there is little reason to entertain pro se
submissions. See id. (district court did not abuse its discretion in
denying defendant’s request to appear as co-counsel where he did not
claim inadequate representation).
No wonder, then, that almost all our sister Circuits routinely
refuse to consider pro se supplemental briefs filed by counseled
parties or even have local rules barring the practice. See United States
v. Turner, 677 F.3d 570, 578 (3d Cir. 2012) (“Even absent our
longstanding prohibition on hybrid representation, we still could not
consider [the defendant’s] pro se filings because we are bound by our
local rules . . . .” (internal quotation marks omitted)); United States v.
Washington, 743 F.3d 938, 941 n.1 (4th Cir. 2014) (declining to accept
pro se brief because a defendant “has no right to raise substantive
11
issues while he is represented by counsel” (internal quotation marks
omitted)); United States v. Ogbonna, 184 F.3d 447, 449 (5th Cir. 1999)
(“[A]llowing the submission of a pro se brief should be discouraged
when the appellant is represented by counsel.”); United States v.
Williams, 641 F.3d 758, 770 (6th Cir. 2011) (“Because Williams was
represented by counsel on this appeal, we decline to address these pro
se arguments.”); United States v. Cox, 577 F.3d 833, 836 (7th Cir. 2009)
(declining to consider substantive arguments in pro se brief because
a defendant “has no right to raise substantive issues while he is
represented”); United States v. Miranda-Zarco, 836 F.3d 899, 901 (8th
Cir. 2016) (“Normally, this court does not address arguments in pro
se filings when the defendant is represented by counsel.”); United
States v. Pearl, 324 F.3d 1210, 1216 (10th Cir. 2003) (“As [the defendant]
is represented by counsel, we deny his motion to file an additional
pro se supplemental brief.”); 11th Cir. R. 25–1 (“When a party is
represented by counsel, the clerk may not accept filings from the
12
party.”); Sturdza v. United Arab Emirates, 281 F.3d 1287, 1293 (D.C. Cir.
2002) (a counseled party may not file pro se briefs because “[s]o long
as [the plaintiff] is represented by counsel, the attorney speaks on her
behalf before this court.”); see also Rosenblum v. Campbell, 370 F. App’x
782, 783 (9th Cir. 2010) (“Because [the plaintiff] is represented by
counsel, only counsel may submit filings.”). But see United States v.
Gonzalez-Gonzalez, 136 F.3d 6, 12 (1st Cir. 1998) (granting leave for a
counseled party to file a pro se supplemental brief). Although we
have no such local rule, permitting hybrid representation is no wiser
in this Circuit than elsewhere.
Salim’s pro se brief nicely illustrates why we should disfavor
such filings. Salim himself concedes that his proposed supplemental
facts and legal arguments add “very little” to the record. Dkt. 172 at
3. Salim primarily urges the Court to consider sections from his
original pro se brief, but Salim explicitly abandoned that brief, and
waived its arguments, when he chose to have his counseled brief
13
supersede it. Salim, moreover, filed his supplemental brief past the
deadline set by the Court’s scheduling order, and moved the Court to
consider it only five weeks before the government’s brief was due.
Such late-filed briefs disadvantage the other party while doing
nothing for those who file them. There is no good reason for us to
accept such a brief. See Ogbonna, 184 F.3d at 449 (pro se brief by
counseled party, raising meritless argument, “plainly demonstrates”
why courts should “discourage[]” such submissions); United States v.
Walker, 243 F. App’x 621, 622 (2d Cir. 2007) (“This Court, like a trial
court, is not obligated to allow [a party] to follow a course of hybrid
pro se representation under which he files both a counseled and pro
se brief.”).
Salim also asks the Court to supplement the record with a May
23, 2019, letter Salim received from a lawyer who once represented
him and a February 14, 2023, declaration by that lawyer. As a court
of review, not first view, we may generally consider only material that
14
was part of the record below. See Fed. R. App. P. 10(a). The sole
flexibility to that rule comes from Rule 10(e)(2) of the Federal Rules of
Appellate Procedure, which provides that “[i]f anything material to
either party is omitted from or misstated in the record by error or
accident, the omission or misstatement may be corrected and a
supplemental record may be certified” by this Court. We will exercise
that power, however, only in “extraordinary circumstances.” Dixon
v. von Blanckensee, 994 F.3d 95, 103 (2d Cir. 2021).
Nothing in this case justifies supplementing the record. Both
the letter and the declaration predate the district court’s February 21,
2023, decision on Salim’s petition for a writ of error coram nobis, and
Salim’s motion to supplement the record does not explain why he did
not submit them to the district court. Salim asks the Court to draw
factual inferences from the letter and the declaration—inferences the
government contests—but a motion to supplement the record “is not
a device for presenting evidence to this Court that was not before the
15
trial judge.” Natofsky v. City of New York, 921 F.3d 337, 344 (2d Cir.
2019) (internal quotation marks omitted). 4
Salim’s motion for the Court to consider his supplemental pro
se brief and his motion to supplement the record are, therefore,
DENIED. The government moves for an extension of time to file its
brief to a date three weeks after the date of resolution of Salim’s
motion. That motion is GRANTED.
4 Salim also requested in his pro se filing that this Court issue an order that
his previous lawyer be deposed. Salim does not pursue this request in his motion
for the Court to consider his pro se filing and has thus abandoned it.
16