NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 30, 2012
Decided December 10, 2012
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐3095
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the Northern
District of Illinois, Eastern Division.
v. No. 09 CR 996
AHSAN MOINUDDIN,
Defendant‐Appellant. Charles R. Norgle,
Judge.
O R D E R
In May 2011, Ahsan Moinuddin pled guilty to wire fraud and aggravated identity
theft. The district court sentenced him on September 8, 2011, to 37 months’ imprisonment
on the wire fraud count, and a consecutive 24 month sentence for the aggravated identity
theft. He now appeals that sentence, arguing that he was denied his right to counsel at the
sentencing hearing on September 8, 2011, in that the court refused his request to substitute
new counsel.
The Sixth Amendment to the United States Constitution grants to a defendant the
right to the assistance of counsel, and that includes the right to counsel of one’s choice.
No. 11‐3095 2
United States v. Sellers,
645 F.3d 830, 834 (7th Cir. 2011). That does not mean that a court
commits reversible error if it refuses any and all requests for new counsel. A court “retains
wide latitude to balance the right to choice of counsel against the needs of fairness to the
litigants and against the demands of its calendar.”
Id. “‘Only an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay’ violates the
Sixth Amendment right.”
Id., quoting United States v. Carrera,
259 F.3d 818, 825 (7th Cir.
2001); United States v. Gaya,
647 F.3d 634, 636 (7th Cir. 2011).
Moinuddin’s request for new counsel came at the sentencing hearing on September
8, 2011. At that point, the sentencing date had already been continued two times by
agreement of counsel. The plea had been entered on May 6, 2011, and the sentencing
hearing had originally been scheduled for August 15, 2011. On September 2, 2011,
Moinuddin’s court‐appointed counsel, Keri Ambrosio, filed a sentencing memorandum on
his behalf objecting to a sentencing guidelines’ calculation.
When the case was called for the sentencing hearing, Ambrosio informed the court
that Moinuddin was not yet present, and that Moinuddin had indicated that when he
arrived he would need a few minutes of her time. The court then passed the case. When
the case was called for the second time, the district court judge began by asking Ambrosio
whether the court had given her enough time to confer with her client. She indicated that
she had sufficient time to confer, and then informed the court that “[a]fter I believe two
years of representing Mr. Moinuddin, Mr. Moinuddin told me he is speaking to another
attorney later today who apparently is not able to be here because he is golfing right now.”
Sentencing Hearing of 9/8/11 Transcript at 3. The district court inquired whether Ambrosio
was court‐appointed or retained, and she indicated that she was court‐appointed counsel
for Moinuddin.
Id. The district court then gave Moinuddin an opportunity under oath to
tell the court whatever he wanted to say. Moinuddin responded “I just need proper
counsel, sir.”
Id. The court inquired as to whether Moinuddin wanted to say anything else
stating “[i]f you are not going to say anything else, Miss Ambrosio will stay in the case. Say
whatever you feel you want to say.”
Id. Moinuddin requested that the judge repeat that,
and the judge responded “No.”
Id. at 3‐4. Moinuddin then declared: “I believe Mr. Pernelli
would be able to represent me much better, your Honor, and get me true justice.” Id. at 4.
At that time, the court denied Moinuddin’s motion to continue the sentencing to employ
private counsel, and proceeded with the sentencing hearing.
On appeal, Moinuddin argues that the court abused its discretion in refusing to
continue the case to allow him to retain new counsel. Although the court’s colloquy with
Moinuddin was more truncated than is desirable, the court provided Moinuddin with a
sufficient opportunity to explain the basis for his request for a continuance, and the court’s
No. 11‐3095 3
denial does not reflect an “unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay” which would require reversal.
First, there is no indication that Moinuddin had any justifiable request for a delay.
The court initially gave Moinuddin an open‐ended opportunity to explain what he wanted,
asking him “What is it that you want to say?” Moinuddin replied merely by stating that he
just needed proper counsel. The court then indicated that Ambrosio would stay on the case
if Moinuddin was not going to say anything else. Although the court refused to repeat that
statement, there is no reason to think that Moinuddin did not in fact hear it or at least
understand what was requested of him, because Moinuddin proceeded to answer, this time
by stating that he believed Mr. Pernelli would be able to represent him better and obtain
true justice. Nothing in that colloquy suggested that there had been any communication
breakdown between Moinuddin and Ambrosio, nor was there any indication that
Moinuddin wanted Ambrosio to pursue avenues of relief that she was unwilling to pursue.
In fact, Moinuddin expressed no desire to withdraw his plea or otherwise alter any of the
choices made in the two years that Ambrosio had represented him. On the date of the
sentencing hearing, for the first time, Moinuddin requested a continuance to obtain
representation by Mr. Pernelli based only on a generalized notion that representation by
him would get him true justice. Therefore, Moinuddin had offered no concrete basis for
desiring alternate counsel at this late stage; there was in short no “justifiable request” for the
delay.
In addition, the timing of the request presented problems that might not be
insurmountable in a case of a breakdown in communications, but weighed against the
request where no reason for it was given. The request was made at the sentencing hearing,
in which both parties had submitted briefing and were prepared to proceed with their
arguments and any witnesses. In fact, the government had informed the court prior the
commencement of the sentencing hearing that a victim‐witness would testify at the hearing
that day.
Significantly, there was no reason to believe that a delay would be fruitful. The
alternate counsel, Pernelli, did not appear at the sentencing hearing, and Moinuddin’s
attorney stated that Moinuddin explained that Pernelli could not appear because he was
golfing. That suggests that Moinuddin had not met with and retained Pernelli at that point
in time. The district court was not required to grant a continuance to allow Moinuddin to
explore other representation when there was four months between the plea and the
sentencing hearing and he had not explored it in that time. If Moinuddin had in fact met
with Pernelli and secured Pernelli as his attorney ‐ ‐ his attorney at oral argument could not
tell us whether he had or had not ‐ ‐ then the situation is even more bleak, because the
No. 11‐3095 4
reason Pernelli could not appear that day was because he was golfing. The court certainly is
not required to continue a case to accommodate a new counsel’s golf game. In short,
Moinuddin presented no reason for desiring a substitution of counsel at this late date.
Although he had been represented by appointed counsel for two years, he claimed to want
to retain counsel, but that counsel was not in court and had no acceptable reason for his
absence. Moreover, Moinuddin articulated no problem with the representation by his
current counsel. Although we would prefer that the district court had obtained more
details, the court had sufficient facts before it to deny the request for the continuance. We
find no abuse of discretion. The decision of the district court is AFFIRMED.
