United States v. Abdul Wahid ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10109
Plaintiff-Appellee, D.C. Nos.
2:17-cr-00360-JJT-1
v. 2:17-cr-00360-JJT
ABDUL KHABIR WAHID, AKA AK,
AKA Abdul Khabir Hyman, AKA Marion MEMORANDUM*
Marshall Hyman,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Submitted July 27, 2021**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and LAMBERTH,*** District
Judge.
Abdul Khabir Wahid appeals the district court’s order granting his motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
represent himself in his case. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
We review de novo whether a waiver of the right to counsel was made
knowingly, intelligently, and voluntarily. United States v. Lopez-Osuna, 242 F.3d
1191, 1198 (9th Cir. 2000). “In order for a waiver of the right to counsel to be
knowing and intelligent, the defendant must be made aware of the ‘three elements’
of self-representation: ‘(1) the nature of the charges against him; (2) the possible
penalties; and (3) the dangers and disadvantages of self-representation.’” Id. at
1199 (quoting United States v. Hernandez, 203 F.3d 614, 623–24 (9th Cir. 2000)).
The district court sufficiently advised Wahid of the elements of self-
representation. The court stated the charges against Wahid and explained the
possible penalties. Contrary to Wahid’s assertion, the district court was not
required to list the elements of the charges. See id. (“This court has refrained from
requiring the district court to use a particular script when conducting an inquiry
into whether a defendant knowingly and intelligently waived the right to
counsel.”); see also United States v. Calhoun, 143 F. App’x 28, 29 (9th Cir. 2005)
(finding that the argument “that a defendant can only be made aware of the nature
of the charges by being informed of their elements . . . fails”).
The court likewise sufficiently conveyed the consequences of proceeding
pro se by explaining that it would not give Wahid legal advice, that it would hold
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him to the same evidentiary and procedural rules as a trained lawyer, that it would
expect him to comply with all court orders, that he might be stretched too thin
given his pending civil case, and that he would likely be unable to defend himself
as effectively as a trained lawyer. These warnings were sufficient to ensure that
Wahid made his decision to proceed pro se with “eyes open.” Faretta v.
California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel.
McCann, 317 U.S. 269, 279 (1942)); see also United States v. Clapier, 40 F. App’x
455, 456–57 (9th Cir. 2002) (finding waiver valid where the district court
cautioned the defendant “against representing herself, explained that she would be
held responsible for compliance with procedural and evidentiary rules, and
repeatedly characterized the benefits of representation by qualified counsel”).
Wahid argues that the district court erred in allowing him to waive counsel
without clearing up his misconception that his appointed attorneys were part of the
Department of Justice. Even if Wahid had this misconception, that alone does not
invalidate his waiver. There is no indication that Wahid thought his attorneys were
controlled by the prosecution. Instead, Wahid’s statements to the court suggest
that he was dissatisfied with his attorneys’ performance.
AFFIRMED.
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