United States v. David Kissi

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID M. KISSI,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:05-cr-00254-AW-1)
Submitted: September 26, 2013 Decided: October 17, 2013
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Gary A. Ticknor, Columbia, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Kristi N. O’Malley,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Kissi appeals the district court’s order
revoking his term of supervised release and imposing a ten-month
term of imprisonment, followed by an additional term of
supervised release. Kissi first asserts that the district court
erred in denying his motion for a continuance/substitution of
counsel, forcing him to represent himself. Prior to the
December 2012 revocation hearing, Kissi had hired and fired
private counsel and the federal public defender appointed to
represent him was allowed to withdraw. Finally, the district
court appointed Christopher Nieto to represent Kissi at the
scheduled hearing. One week prior to the revocation hearing,
the court denied Nieto’s motion to withdraw and ordered that
“Counsel who was appointed by the Court to represent the
Defendant will continue to serve as appointed counsel or as
[standby counsel], in the event that Defendant wishes to
represent himself. Should Defendant secure his own private
counsel to represent Defendant at the December 17, 2012 hearing,
the Court will revisit the motion to withdraw.” Kissi did not
obtain private counsel prior to the hearing.
At the beginning of the hearing, Kissi informed the
court that he had “already fired” Nieto and asked the court to
“give me time beyond today so I go and get myself a lawyer.”
The court reminded Kissi that it had already given him
2
additional time to do so, but that he had failed. The court
noted that Kissi’s difficulties with his attorney were caused by
Kissi’s refusal to cooperate. The court ultimately gave Kissi
the choice to work with court-appointed counsel or represent
himself, with counsel available as standby counsel. The
transcript reveals that, although Kissi handled part of the
hearing pro se, Nieto actually represented him for the majority
of the hearing.
We review a district court’s ruling on a motion to
substitute counsel for abuse of discretion. United States v.
Horton, 693 F.3d 463, 466 (4th Cir. 2012). While a criminal
defendant has a right to counsel of his own choosing, that right
is not absolute. Powell v. Alabama, 287 U.S. 45, 52-53 (1932);
Sampley v. Attorney Gen. of N.C., 786 F.2d 610, 612 (4th Cir.
1986). In particular, a defendant’s right to choose his own
counsel is limited so as not to “deprive courts of the exercise
of their inherent power to control the administration of
justice.” United States v. Gallop, 838 F.2d 105, 108 (4th Cir.
1988); see United States v. Gonzalez-Lopez, 548 U.S. 140, 152
(2006) (“[A] trial court[] [has] wide latitude in balancing the
right to counsel of choice against the needs of fairness and
against demands of its calendar[.]”) (internal citations
omitted). Our review of the record leads us to conclude that
3
the district court did not abuse its discretion when it denied
Kissi’s third request for new counsel.
Next, Kissi argues that the district court erred by
permitting hearsay evidence in the form of emails from district
court Judge Messitte. A defendant at a revocation hearing has
the right “to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for
not allowing confrontation).” Morrissey v. Brewer, 408 U.S.
471, 489 (1972). The parameters of this right are established
in Fed. R. Crim. P. 32.1(b)(2)(C), which states that a defendant
is entitled to “question any adverse witness unless the court
determines that the interest of justice does not require the
witness to appear.” United States v. Doswell, 670 F.3d 526, 530
(4th Cir. 2012). Doswell requires that the district court
“balance the releasee’s interest in confronting an adverse
witness against any proffered good cause for denying such
confrontation.” Id. If the evidence is reliable and the
Government’s explanation for not producing the witness is
satisfactory, the hearsay evidence will likely be admissible.
Id. at 531. Applying these standards, we conclude that the
district court did not abuse its discretion in allowing the
emails as evidence without Judge Messitte’s live testimony.
Kissi next claims that he was denied his
constitutional right to a jury trial. Because revocation
4
proceedings are not stages of a criminal prosecution, there is
no constitutional right to a jury trial. See, e.g., United
States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006) (“[T]he
‘full panoply of rights’ due a defendant in a criminal
prosecution does not apply to revocation hearings for parole,
for probation, or for supervised release.” (citations omitted));
United States v. Work, 409 F.3d 484, 491-92 (1st Cir. 2005)
(Sixth Amendment’s right to jury trial does not extend to
supervised release revocation proceedings).
In his fourth claim, Kissi argues that the Government
failed to prove that he possessed the necessary mens rea element
of the violations alleged in the petitions to revoke his
supervised release. At the hearing, Kissi argued at length that
he believed the underlying prefiling injunction at issue did not
prohibit him from filing the civil actions which resulted in the
contempt convictions. As the district court concluded, however,
Kissi was a “willful violator” notwithstanding “his
misperception and his mistaken beliefs.”
Next, Kissi asserts that the district court’s judgment
is inconsistent with the charged violations. Kissi apparently
believes that the district court’s findings with respect to
specific violations are inconsistent with the petitions to
revoke his supervised release filed in July and August 2012.
Specifically, the petitions list the original conditions of
5
Kissi’s supervised release in numbered paragraphs (1) through
(9)—the grounds for revoking supervised release were listed in
unnumbered paragraphs, each beginning with “WHEREAS.” However,
it is clear that the district court’s findings refer to the
third and fourth unnumbered paragraphs in the July petition and
the first unnumbered paragraph in the August petition. It is
equally clear from the transcript that there was no confusion as
to which violation the court was referring.
Finally, Kissi raises several challenges to the
reasonableness of his sentence. A district court has broad
discretion to impose a sentence upon revoking a defendant’s
supervised release. United States v. Thompson, 595 F.3d 544,
547 (4th Cir. 2010). This court will affirm a sentence imposed
after revocation of supervised release if it is within the
applicable statutory maximum and not “plainly unreasonable.”
United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir.
2006). In determining whether a revocation sentence is plainly
unreasonable, this court first assesses the sentence for
unreasonableness, “follow[ing] generally the procedural and
substantive considerations that [it] employ[s] in [its] review
of original sentences.” Id. at 438.
A supervised release revocation sentence is
procedurally reasonable if the district court properly
calculates the Guidelines’ Chapter 7 advisory policy statement
6
range and explains the sentence adequately after considering the
policy statements and the 18 U.S.C. § 3553(a) (2006) factors it
is permitted to consider in a supervised release revocation
case. 18 U.S.C.A. § 3583(e) (West 2006 & Supp. 2012); Thompson,
595 F.3d at 547; Crudup, 461 F.3d at 439. A revocation sentence
is substantively reasonable if the district court states a
proper basis for concluding the defendant should receive the
sentence imposed, up to the statutory maximum. Crudup, 461 F.3d
at 440. Only if a sentence is found procedurally or
substantively unreasonable will this Court “then decide whether
the sentence is plainly unreasonable.” Id. at 439. A sentence
is plainly unreasonable if it is clearly or obviously
unreasonable. Id.We conclude that Kissi’s sentence is both procedurally
and substantively reasonable, with one exception noted below.
The district court properly calculated the Guidelines’ Chapter 7
advisory policy statement range and explained the sentence
thoroughly after considering the policy statements and § 3553(a)
factors. And, the district court stated a proper basis for
concluding that Kissi should receive the sentence imposed.
Nevertheless, Kissi first argues that his sentence is
unreasonable because the court added additional supervised
release after initially finding that Kissi was not a good
candidate for further supervised release. Although the court
7
did state, at the revocation hearing in December, that it was
likely to terminate supervised release, Kissi’s conduct after
the hearing and prior to sentencing on February 4, 2013, caused
the court to change its mind. Specifically, Kissi not only
failed to dismiss the three lawsuits he had filed which were the
subject of the contempt convictions, but also filed a new suit
against the attorney who represented him at the revocation
hearing and continued to file repetitive and vexatious motions
in this and other cases.
Next, Kissi asserts, for the first time on appeal,
that the district court erred in finding that his was a Grade B
violation and not a Grade C violation. Because criminal
contempt has no statutory maximum sentence, it is not classified
as either a felony or a misdemeanor. See Cheff v.
Schnackenberg, 384 U.S. 373, 380 (1966) (defining the crime of
contempt as an “offense sui generis,” neither a felony nor a
misdemeanor). However, because “[t]he length of the sentence
rests in the sound discretion of the trial judge,” United States
v. Seavers, 472 F.2d 607, 611 (6th Cir. 1973), we find no error
in its treatment as a felony for sentencing purposes.
Finally, Kissi argues that the district court plainly
erred when it continued the original condition of supervised
release requiring that he reimburse the court funds paid to his
counsel during trial. The Government concedes this issue,
8
citing United States v. Moore, 666 F.3d 313, 322 (4th Cir.
2012), and notes that it filed a motion in the district court to
modify the conditions of supervised release to release this one
condition. The district court has not ruled on the motion.
Therefore, we vacate this portion of the judgment and remand to
the district court to modify the conditions of release and
remove this condition.
In all other respects, we affirm the district court’s
judgment. In light of this disposition, we deny Kissi’s motion
for release pending appeal as well as his motion for leave to
file a supplemental pro se brief. We deny counsel’s motion to
withdraw at this time. This court requires that counsel inform
Kissi, in writing, of the right to petition the Supreme Court of
the United States for further review. If Kissi requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may again move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Kissi.
We dispense with oral argument because the facts and
legal contentions are adequately represented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
9