United States v. Hausa

18‐566‐cr
United States v. Hausa
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2018
No. 18‐566‐cr
U NITED S TATES OF AMERICA
Appellee,
v.
A DNAN IBRAHIM H ARUN A HAUSA, also known as SPIN G HUL ,
also known as ESBIN G OL , also known as ISBUNGOUL ,
also known as A BU TAMIM , also known as JOSEPH JOHNSON,
also known as MORTALA MOHAMED A DAM ,
Defendant‐Appellant.
A RGUED: FEBRUARY 22, 2019
D ECIDED: A PRIL 24, 2019
Before: K EARSE , JACOBS , H ALL , Circuit Judges.
Adnan Ibrahim Harun Adam Hausa appeals from his conviction after a
jury trial in the United States District Court for the Eastern District of New York
(Cogan, J.) on five counts related to his participation in attacks on United States
and coalition forces in Afghanistan while a member of al‐Qaeda. Hausa argues
that he was denied his Sixth Amendment right to self‐representation and that the
government failed to prove that his conspiracy to murder U.S. nationals occurred
within the jurisdiction of the United States. We AFFIRM.

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A RZA F ELDMAN, Feldman & Feldman,
Uniondale, NY, for the Defendant‐
Appellant.
MATTHEW J. JACOBS , Assistant United States
Attorney (D AVID C. JAMES , Assistant United
States Attorney, on the brief), for R ICHARD
P. D ONOGHUE, United States Attorney,
Eastern District of New York, Brooklyn,
NY, for the Appellee.
PER C URIAM :
Adnan Ibrahim Harun Adam Hausa, a member of al‐Qaeda, attacked
United States and Afghan coalition forces in Afghanistan, including one assault
that resulted in the death of two American soldiers. Italian authorities arrested
Hausa in 2011 and extradited him to the United States for trial in the United
States District Court for the Eastern District of New York (Korman, J.; Cogan, J.).
Hausa stated that he wanted to proceed without counsel, and the district
court held a series of conferences to evaluate Hausa’s competence both to stand
trial and to waive counsel. “Because a defendant who decides to act pro se
relinquishes traditional benefits associated with formal legal representation, the
district court must ensure that the accused made [that] decision ‘knowingly and
intelligently.’” Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998) (quoting
Faretta v. California, 422 U.S. 806, 835 (1975)). At each conference, Hausa
obstructed and disrupted proceedings: he demanded transfer to an international
court, declared himself an enemy of the court, refused to answer the court’s
questions, cursed at the judge and threatened to kill him. Hausa’s demand to
represent himself was denied.
Hausa was convicted after a jury trial on five counts related to his attacks
on U.S. soldiers: (1) conspiracy to murder U.S. nationals, in violation of 18 U.S.C.
§ 2332(b)(2); (2) conspiracy to bomb a government facility, in violation of 18
U.S.C. § 2332f; (3) conspiracy to provide material support to al‐Qaeda, in
violation of 18 U.S.C. § 2339B; (4) provision and attempted provision of material
support to al‐Qaeda, in violation of 18 U.S.C. § 2339B; and (5) illegal use of an
explosive to commit a federal felony offense, in violation of 18 U.S.C. § 844(h).
He was sentenced principally to life imprisonment.

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On appeal, Hausa claims that he was denied his Sixth Amendment right to
self‐representation because the district court did not allow him to forgo counsel,
and that the government failed to prove that Count One, conspiracy to murder
U.S. nationals, occurred within the special maritime and territorial jurisdiction of
the United States.
BACKGROUND
In interviews recorded after waiving his Miranda rights, Hausa described
his involvement in attacks on U.S. and Coalition forces in Afghanistan and his
attempt to bomb the U.S. Embassy in Nigeria. As to an April 25, 2003 ambush,
Hausa reminisced about launching rockets, firing his machine gun, and throwing
grenades at U.S. soldiers:
I took that grenade and threw it at them. When I threw it, I threw it
directly at them, and by the time it got there, it blew up in between them.
At that point I am certain that both of them were injured.
GX:31T 58‐59. Two U.S. soldiers were killed and three U.S. soldiers were
seriously wounded in the ambush.
Hausa left Afghanistan for Nigeria, where he planned to expand al‐
Qaeda’s presence in Africa and bomb the U.S. Embassy. Soon, Hausa fled to
Libya, whence he planned to enter Europe and carry out additional terror
attacks, but was arrested in Tripoli. He was released from Libyan custody in
2011 and boarded ship to Italy. On board, he attacked law enforcement officers
and was arrested by Italian authorities. In Italy, the government conducted three
days of audio‐recorded interviews in the presence of an Italian judge and defense
counsel.
Hausa was then indicted by a grand jury in the Eastern District of New
York and extradited to the United States. In pretrial proceedings, Hausa
expressed a desire to represent himself. To assess Hausa’s competence to stand
trial and purported waiver of his right to counsel, the court held a series of
conferences, including three attempted Faretta colloquies, detailed below. On
each occasion, Hausa refused to answer the Judge’s questions, disrupted court
proceedings, and demanded transfer to some international court.

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June 28, 2013: Hausa objected to one of the two lawyers then representing
him because she drank alcohol. GA 32. Hausa demanded to be tried before an
international court, “I don’t want help. . . . I want the international court if you
are not going to listen to me or speak to me.” GA 38‐39. After the court advised
that an international court was not an option, Hausa launched into an
incomprehensible rant that ended with some clear observations: “This no court.
This no court. Why am I here. This no court. . . . You no God. You no Allah.
You only judge. . . . Thank you, on this scenario. F*** you, Judge. Judge. You
bad (indiscernible).” GA 44‐46. Hausa was escorted out of the courtroom.
August 2, 2013: Hausa told the court to “take the lawyer away” because “I
said I would represent myself. I don’t want somebody else to represent me.”
GA 52. The court warned Hausa that self‐representation is “a piece of
foolishness. . . . [H]e who is his own lawyer has a fool for a client.” GA 58.
Hausa responded, “even if I am a fool, even if I am crazy, it’s still my right.” GA
59.
The court told Hausa that an allocution was necessary to “make sure you
understand what you’re doing.” GA 59. But Hausa refused to engage with the
court’s questions; instead, he demanded to be sent to the international court.
September 4, 2013: Hausa again expressed a desire to represent himself
and the court again attempted to hold an allocution:
Mr. Hausa if you want to be your own lawyer, I have to go through an
allocution. I have to ask you questions and answers to be sure that you
fully understand what you’re doing and in my view, the mistake that
you’re making by ‐‐ to be sure that you know what you’re doing. . . . [Y]ou
face life imprisonment here.
GA 65. Judge Korman explained that self‐representation is “like deciding to go
through major surgery in which you could lose your life and you decide to be
your own surgeon.” GA 66. The court added, “you have the right to [self‐
representation]. But I have to go through an allocution with you to be sure that
you know what you’re doing.” GA 66.
No allocution could be had. Instead, defense counsel raised the possibility
of a psychiatric evaluation of Hausa. Hausa interrupted, launching into an
extended monologue regarding his detention in Libya, the CIA, his arrest in

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Italy, his commitment to jihad, Osama bin Laden, the Taliban, and his demand to
be brought to an international court. Again, Judge Korman warned Hausa about
the dangers of self‐representation, but Hausa persisted in his refusal to answer
the court’s questions.
Judge Korman concluded: “I’m not going to let him proceed without
counsel because he won’t even cooperate in my asking him questions that would
allow me to make even a preliminary judgment.” GA 86. Hausa responded,
“I’m not going to answer you.” GA 86. Judge Korman said, “Well I told you,
you can’t represent yourself unless you let me go through and ask you questions
and answers to make sure you understand what you’re doing. And that’s only
the beginning. If you don’t want to, then [counsel is] going to represent you.”
GA 87. Hausa explained, “I seal my mouth,” and was escorted from the
courtroom. GA 87.
October 31, 2013: Defense counsel told the court that “We’re in a situation
where he neither wants us as lawyers nor will he respond to the Court’s
questions.” GA 98. And counsel again requested an evaluation of Hausa’s
competence to stand trial.
March 12, 2015: Judge Cogan1 held a competency and Faretta hearing, at
which Hausa talked too rapidly for the interpreter, demanded transfer to an
international court, and hummed. The court recited the goings on:
Mr. Hausa is continuing to speak, notwithstanding my direction to him to
stop. He is speaking at a pace that makes it impossible for the interpreter
to interpret, and I cannot understand what either of them are saying.
Mr. Hausa, if you don’t start following the directions I’m giving you
in court, I’m going to have to exclude you again. I don’t want to do
that. . . . Mr. Hausa has started to hum, which is what he does when he
decides he’s not satisfied with the way proceedings are going.
GA 130‐31. At last, Hausa was removed to an adjoining courtroom where he
could watch the proceedings on closed‐circuit television.
The court found Hausa competent to stand trial, and that his performance
was deliberate and conscious. Three psychiatric evaluations had demonstrated
1 On September 23, 2014, the case was reassigned from Judge Korman to Judge Cogan.

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that Hausa was “clearly able to assist in his defense if he wants to do so.” GA
135. The defense offered “no evidence that [Hausa] [was] not competent.” GA
135.
However, as to Hausa’s ability to represent himself, Judge Cogan was
unable to find his waiver of counsel “knowing and intelligent” because of his
refusal to answer the questions posed in the colloquies:
The difficulty, of course, is that I can’t find that Mr. Hausa is knowingly
and voluntarily waiving his right to counsel if I can’t have the dialogue
with him sufficient to allow me to determine if there’s a basis for such a
finding or not.
Unless the parties have any alternatives, I see no alternative but to
mandate that he continue to be represented by counsel until such time as
he wants to talk to me and answer my questions and allow me to make a
determination as to whether he should be allowed to proceed without
counsel.
GA 137‐38. The court reduced the Faretta warnings to writing and asked Hausa
to review them in his cell before reattempting a dialogue at a later conference.
April 2, 2015: Hausa, having refused to accept the physical copy of the
Faretta questions, declined to engage with the court when asked if he would
answer questions in order to proceed without counsel. Judge Cogan concluded:
I have no basis to find that he is validly waiving his right to counsel if he
refuses to let me ask him questions about it. . . .
So, at this point, Mr. Hausa is going to continue to be represented by
counsel because that’s the default and he won’t discuss with me the
possibility of waiving counsel.
GA 153.
July 22, 2015: Hausa’s counsel told the court that Hausa had directed them
“to do nothing on his case,” but “he also doesn’t want to answer the questions
. . . he needs to answer in order to represent himself.” GA 164.
* * *

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From mid‐2015 on, Hausa refused to attend any court proceeding. For one
2016 conference, the district court entered an order permitting the use of
necessary force to bring Hausa to the courtroom, but before the conference
began, the court informed counsel:
I received a call a little while ago, about an hour ago, from the
marshals saying that force had been in fact required; that they had put him
in the van, that they were concerned that he was so violent that he was
going to kick out the windows on the van and they, therefore, had
restrained his hands and feet with shackles. Notwithstanding those
restraints, the defendant had managed to tear his clothing to shred[s] and,
therefore, arrived in court wearing nothing but underwear.
GA 175.
The court denied Hausa’s requests to represent himself at trial, and Hausa
was convicted by the jury and sentenced principally to life imprisonment. This
appeal followed.
DISCUSSION
We review “conclusions regarding the constitutionality of a defendant’s
waiver [of counsel]” de novo, and “supporting factual findings” for clear error.
United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993). Deprivation of the right
to self‐representation is not subject to harmless error review. See United States v.
Gonzalez‐Lopez, 548 U.S. 140, 148‐49 (2006); McKaskle v. Wiggins, 465 U.S. 168,
177 n.8 (1984).
“We review de novo questions of statutory interpretation.” United States
v. Al Kassar, 660 F.3d 108, 124 (2d Cir. 2011).
I.
The Sixth Amendment guarantees a defendant the right to forgo counsel
and conduct his defense personally. Faretta, 422 U.S. at 819. A court must
ensure itself that the waiver of counsel is made “knowingly and intelligently,”
Torres, 140 F.3d at 401 (quoting Faretta, 422 U.S. at 835), which “depends upon
the particular facts and circumstances of the case and characteristics of the
defendant.” United States v. Fore, 169 F.3d 104, 108 (2d Cir. 1999).

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“Although there is no talismanic procedure to determine a valid waiver,
the district court should engage the defendant in an on‐the‐record discussion to
ensure that she fully understands the ramifications of her decision.” Torres, 140
F.3d at 401 (internal citation omitted). We have explained:
From defendant’s answers and from its own observations, the trial court
must be persuaded that the waiver is a rational one, and that defendant
has the mental capacity to comprehend the consequences of relinquishing
a constitutional right. An accused must therefore have had the
disadvantages of proceeding without counsel pointed out to [him] and
must be shown to possess sufficient ability to understand the nature of the
proceedings against [him].
United States v. Schmidt, 105 F.3d 82, 88 (2d Cir. 1997) (internal citations
omitted).
Hausa argues that his request to waive his right to counsel was “knowing
and intelligent”; but the trial court did not err in concluding that it was
impossible to make that determination because the court was unable to assure
itself that Hausa was “aware of the dangers and disadvantages of self‐
representation.” Faretta, 422 U.S. at 835.
It is unclear whether, in the chaotic atmosphere he created, Hausa
absorbed or paid attention to anything the court said. He ignored the court’s
verbal questions and refused to accept written questions. Instead, Hausa
demanded to be sent to an international court, cursed at the judge, spoke at an
untranslatable pace, and hummed until he was removed from the courtroom.
In short, Hausa prevented the court from assessing his purported waiver
by refusing to answer any questions meant to assess his understanding of the
risks of self‐representation.
Hausa argues that once a court informs the defendant of the risks of self‐
representation, it must then grant the request to appear pro se. Hausa cites
United States v. Garey, 540 F.3d 1253, 1267–68 (11th Cir. 2008) (in banc) for the
proposition that if the defendant understands the risks of self‐representation, a
question and answer exchange is not required. Garey held that a “court may, in
the exercise of its discretion, discharge counsel” if it “is assured the defendant (1)
understands the choices before him, (2) knows the potential dangers of

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proceeding pro se, and (3) has rejected the lawyer to whom he is constitutionally
entitled” even if a “Faretta‐like monologue” and not a full colloquy has been
completed. 540 F.3d at 1267‐68. So even if Garey were the law of this Circuit, its
holding is consistent with the denial of Hausa’s application because Garey
required the very findings that the court in this case was unable to make.
The right to self‐representation may run at cross‐purposes to the right to
effective assistance of counsel. Accordingly, “we exercise caution when called
upon to establish per se rules that might overprotect either of these rights.”
Clark v. Perez, 510 F.3d 382, 395 (2d Cir. 2008). But it is not error to deny a
defendant’s purported waiver of the right to counsel, if, like Hausa, the
defendant prevents the court from fulfilling its obligation to ensure that a Sixth
Amendment waiver is knowing and intelligent.
II.
Even if a waiver of counsel is found to be knowing and intelligent, “[a]
trial court may deny the right to act pro se where the defendant deliberately
engages in serious and obstructionist misconduct, or is not able and willing to
abide by rules of procedure and courtroom protocol.” Clark, 510 F.3d at 395
(internal citations and quotation marks omitted). “[A] judge may use willingness
and ability to abide by courtroom protocol as prerequisites for accepting a
defendant’s waiver of his right to counsel.” Davis v. Grant, 532 F.3d 132, 143 (2d
Cir. 2008) (emphasis in original). The right to self‐representation “is not a license
to abuse the dignity of the courtroom.” Clark, 510 F.3d at 395. (quoting Faretta,
422 U.S. at 834 n.46).
Hausa’s obstruction is independent support for the denial of his purported
waiver of counsel. Hausa’s misconduct was egregious and intolerable by any
measure: he hummed and screamed, and rambled incoherently; he cursed at the
judge, declared him an enemy and threatened to kill him. That behavior
required repeated removal from pretrial hearings. And when Hausa was
present, he continually violated basic courtroom rules of procedure, decorum,
and protocol.
III.
The district court denied Hausa’s motion for acquittal as to Count One,
conspiracy to kill U.S. nationals, in violation of 18 U.S.C. § 2332(b)(2). Hausa

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argues that subsection (2) is rendered domestic by its incorporation of 18 U.S.C.
§ 1111, which penalizes murder within the jurisdiction of the Unites States, and
that the evidence at trial proved a conspiracy to murder American soldiers only
in Afghanistan. This argument is meritless.
Section 2332(b) criminalizes attempts and conspiracies to kill U.S. nationals
abroad:
(b) Attempt or conspiracy with respect to homicide.‐‐Whoever outside the
United States attempts to kill, or engages in a conspiracy to kill, a national
of the United States shall‐‐
(1) in the case of an attempt to commit a killing that is a murder as
defined in this chapter, be fined under this title or imprisoned not
more than 20 years, or both; and
(2) in the case of a conspiracy by two or more persons to commit a
killing that is a murder as defined in section 1111(a) of this title, if
one or more of such persons do any overt act to effect the object of
the conspiracy, be fined under this title or imprisoned for any term
of years or for life, or both so fined and so imprisoned.
18 U.S.C. § 2332(b) (emphasis added).
Subsection (2) incorporates section 1111(a), the federal definition of
murder. See 18 U.S.C. § 1111(a) (“Murder is the unlawful killing of a human
being . . . .”). It is section 1111(b) that punishes those “guilty of murder”
committed “[w]ithin the special maritime and territorial jurisdiction of the
United States.” Id. § 1111(b). But as to Hausa’s conviction pursuant to
subsection (2), section 1111(b) is irrelevant.
Subsection (2)’s plain language criminalizes conspiracies to kill U.S.
nationals committed “outside the United States.” 18 U.S.C. § 2332(b); Al Kassar,
660 F.3d at 118 (section 2332(b) contains an explicit provision applying
extraterritorially).
CONCLUSION
The judgment of the district court is AFFIRMED.

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