United States v. Coleman

United States Court of Appeals
for the Fifth Circuit

No. 19-20401

United States of America,

Plaintiff—Appellee,

versus

Kenneth J. Coleman,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CR-156-1

Before Jones, Haynes, and Ho, Circuit Judges.
Per Curiam:*
Kenneth Coleman appeals his convictions for several financial and tax
crimes, claiming that his waiver of counsel was invalid and that the district
court should have honored his subsequent reassertion of the right to counsel.
We find that his waiver of counsel was valid, and that his subsequent

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 29, 2020

Lyle W. Cayce
Clerk

No. 19-20401
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reassertion of the right to counsel would have delayed his trial, so the
judgment of the district court is AFFIRMED.
I. Background
A jury convicted Kenneth Coleman of several financial and tax crimes
arising from a scheme in which prescription drugs were purchased cheaply
from Medicaid patients and resold for large concealed profits on which taxes
were not paid. Coleman represented himself at trial. His pro se defense
theory was based on the proposition that the court lacked jurisdiction over
him due to his status as Rahsaan Malik Bey, a “Moorish American National”
and member of the “Moorish Divine and National Movement of the
World.”
1

Coleman’s first lawyer was Richard Kuniansky, appointed in
September 2017. Kuniansky was allowed to withdraw due to a conflict of
interest arising from his prior representation of a potential witness.
Coleman’s next appointed counsel was Wendell Odom. Trial was set
for August 8, 2018. On July 20, Coleman moved to replace Odom on the
ground that Odom’s representation was unsatisfactory. The Government
opposed the motion on the ground that it was a ploy to delay the trial. After
an unrecorded ex parte hearing on Odom’s performance, the court denied

1
In support of his argument that the court lacked jurisdiction, Coleman asserted
that “descendants of the Moorish Empire” were not citizens of the “Union States Rights
Republic (U.S.A.),” and that — pursuant to the “The Free Moorish American Zodiac
Constitution” and a treaty between the United States and the Kingdom of Morocco — he
was therefore not subject to taxation or the civil or criminal jurisdiction of United States
courts. Coleman further claimed that the United States is a corporate entity which “can
not be an injured party,” and that the district court was required to produce a “certified
delegation of authority order.”
Coleman’s approach is like that of defendant Mesquiti, who also claimed he was
part of a “sovereign citizen” movement “not subject to state or federal statutes and
proceedings.” United States v. Mesquiti, 854 F.3d 267, 269 (5th Cir. 2017).

No. 19-20401
3
the motion but granted an opposed motion to continue the trial until
October 26. Coleman re-urged his motion for substitution of counsel and
noted that he had filed a state bar grievance against Odom. The case was
transferred to another judge and the new court initially denied the re-urged
motion. But then Odom filed a motion to withdraw. At a hearing on
September 21, Odom said he wanted to withdraw due to Coleman’s
grievance. Gerardo Montalvo replaced Odom.
At this point, just prior to a status conference on October 2, Coleman
appears to have adopted the strategy to challenge the court’s jurisdiction. At
that conference, Coleman announced that Montalvo would not be
representing him because Coleman was a Moorish American National, and
Montalvo was not. Coleman also insisted that he was no longer Kenneth
Coleman but Rahsaan Malik Bey, and he presented documents intended to
challenge the district court’s jurisdiction.
Consequently, on October 11, the court held a Faretta
2
hearing to
determine if Coleman was validly waiving his right to counsel and intending
to represent himself at trial. Coleman stated that he studied law at a law firm
but had never represented himself. The court ascertained that Coleman
understood the charges against him and the possible penalties upon
conviction. Coleman said he was “vaguely” familiar with the Federal Rules
of Evidence and “somewhat” familiar with the Federal Rules of Criminal
Procedure. The court “strongly urge[d]” Coleman not to represent himself.
Then the following colloquy took place:
THE COURT: Now, in light of the penalties that you
could suffer if you’re found guilty and in light of all of the
difficulties of representing yourself, do you still desire to

2
See Faretta v. California, 422 U.S. 806 (1975) (addressing the right of self-
representation and the right to counsel).

No. 19-20401
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represent yourself and to give up your right to be represented
by a lawyer?
THE DEFENDANT: Yes.
THE COURT: Is your decision entirely voluntary?
THE DEFENDANT: Under threat, duress, and
coercion.
THE COURT: Okay. Is your decision entirely
voluntary to represent yourself?
THE DEFENDANT: Yes.
The court found that Coleman had “knowingly and voluntarily waived the
right to counsel,” and he was allowed to represent himself at trial.
Montalvo agreed to act as standby counsel. The trial was set to begin
on November 5, 2018. On October 18, Coleman then filed an “Affidavit of
Fact” in which he recanted the waiver of his right to counsel and denied
waiving any rights. The Government opposed the reappointment of counsel.
Ten days before trial, on October 26, the court held another hearing
at which Coleman asked that Montalvo be re-appointed full counsel for trial.
The court asked Montalvo, “if you were to be willing to accept appointment
as fully-appointed counsel, would you be prepared to try this case on the
current timeline, jury selection on Monday, November 5th? It is just a yes or
a no.” Montalvo answered “no.” The court then summarized the
proceedings, starting with the indictment in March 2017. The court noted
three continuances and three appointments of attorneys experienced in
white-collar criminal defense, two of whom were removed on Coleman’s
insistence. The court also recounted the Faretta hearing at which Coleman
validly waived his right to counsel. Finally, the court said:
I have now made an inquiry of Mr. Montalvo, that he
would not be ready, having not examined anything due to
Mr. Coleman denying any kind of contact with Mr. Montalvo,

No. 19-20401
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to proceed to jury selection based upon the fourth continuance
in this case. Therefore, I find Coleman’s motion to withdraw
his waiver of appointed counsel should be denied.
This case is going to trial on schedule, and that’s all I
have got to say. It will go.
In its written order, the district court found that Coleman’s purpose was
delay and it concluded that granting appointment of counsel would require
delay.
At trial, Coleman repeatedly stated that he was “not ready” in re-
sponse to all of the court’s questions. However, he cross-examined some
witnesses about their involvement in the scheme, the ownership of business
entities or bank accounts relevant to the scheme, and their possible agree-
ments with the Government. He also called a defense witness to testify about
the ownership and operation of some of the companies.
The jury convicted Coleman on all counts. Coleman refused to be in-
terviewed for the presentence report (PSR) and refused even to receive it. At
sentencing, he vigorously reasserted his jurisdictional arguments. The court
varied upward from the advisory guideline range of 235 months to impose a
total sentence of 360 months, in addition to supervised release, fines, restitu-
tion, and forfeiture.
Now represented by appellate counsel, Coleman contends that he did
not validly waive his right to counsel, and that the district court should have
honored his subsequent reassertion of the right to counsel.
II. Discussion
Coleman makes two claims. First, he claims that his waiver of counsel
under Faretta was not knowing and voluntary. Second, Coleman contends
that the district court violated his right to counsel when the court denied his
motion for reappointment of counsel, which was heard ten days prior to
Coleman’s trial. Both are without merit.

No. 19-20401
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A. Initial Waiver of Counsel
Coleman contends that his waiver of counsel under Faretta was not
knowing and voluntary. He argues that when he told the court that his
decision to represent himself was “[u]nder threat, duress, and coercion,” the
court was obligated to inquire further, rather than simply to ask again whether
the decision was “entirely voluntary.” “Sixth Amendment challenges to the
validity of a waiver of counsel are reviewed de novo.” United States v.
Mesquiti, 854 F.3d 267, 271 (5th Cir. 2017).
As the Government correctly observes, by asserting force, coercion,
and duress, Coleman was simply repeating a phrase that was a standard part
of his jurisdictional challenge to the court’s authority. Coleman’s reiteration
of this phrase does not establish that his decision to proceed pro se was
involuntary. Cf. Mesquiti, 854 F.3d at 270-71, 274-75 (declining to find that
general objections to the court’s authority showed that the waiver of counsel
was invalid). After reasserting his jurisdictional challenge, the government
asked again if his decision was voluntary, and he said yes. We therefore find
that his initial waiver of counsel was knowing and voluntary.
B. Reassertion of Right to Counsel
In any event, “a defendant who waives the right to counsel is entitled
to withdraw that waiver and reassert the right,” though the right is “not
unqualified.” United States v. Taylor, 933 F.2d 307, 311 (5th Cir. 1991); see
United States v. Smith, 895 F.3d 410, 421 (5th Cir. 2018); United States v.
Pollani, 146 F.3d 269, 273 (5th Cir. 1998). Thus, even though we deem his
initial waiver of counsel valid, this court must also inquire whether the
district court should have honored Coleman’s reassertion of the right to
counsel. See Smith, 895 F.3d at 421-22; Pollani, 146 F.3d at 273-74.
Coleman contends that the district court violated his “Sixth
Amendment right to counsel when the court denied his motion for

No. 19-20401
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reappointment of counsel, which was heard ten days prior to Coleman’s
trial.” As noted, the right to withdraw a waiver of counsel and reassert the
right to counsel “is not unqualified.” Smith, 895 F.3d at 421. A defendant is
“not entitled to choreograph special appearances by counsel, or repeatedly
to alternate his position on counsel in order to delay his trial or otherwise
obstruct the orderly administration of justice.” Id. (quoting United States v.
Taylor, 933 F.2d at 311.) However, Coleman “was entitled to representation
to the extent that standby counsel could take over representation without
interrupting the orderly processes of the court.” Smith, 895 F.3d at 422
(internal quotation marks and citation omitted).
As Pollani held and Smith recognized, the right to counsel is qualified
by a court’s valid but entirely distinct interest in avoiding delay. See Smith,
895 F.3d at 421 (featuring a defendant reasserting his right to counsel);
Pollani, 146 F.3d at 272-73 (same). Before denying a motion for counsel, a
trial court must examine “whether appointing counsel will require delay.”
Smith, 895 F.3d at 421; United States v. Pollani, 146 F.3d at 273.
In Polani, the standby counsel was “retained and ready to act as trial
counsel.” Pollani, 146 F.3d at 272. Therefore, our court found that “there
is no reason to think [that the lawyer’s] appearance would impede the orderly
administration of justice. Quite to the contrary, there is every reason to
believe that the trial would have proceeded much more efficiently if Pollani
had been represented by counsel rather than himself.” Id. at 273. And in
Smith, we found that it “is not apparent from this record that elevating
standby counsel to counsel would have generated more delay than Smith’s
unskilled efforts to represent himself...The record demonstrates that
[standby counsel] was familiar with the case, having been appointed to
represent Smith prior to his Faretta hearing and having handled some pretrial
telephone conferences without Smith. On these facts, standby counsel may
have been prepared to take over Smith’s defense without delay.”

No. 19-20401
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Here, however, Coleman refused to even speak with Montalvo until
the morning of the day he asked for Montalvo to be elevated to full counsel,
and Coleman had even threatened to file a bar grievance against Montalvo.
Montalvo was unable to examine anything due to Coleman denying any kind
of contact. The district judge asked Coleman’s standby lawyer if he could be
prepared to serve as full counsel in 10 days. The lawyer said no. Further, the
district judge issued a written order finding that “granting Coleman’s
request to re-appoint counsel at this stage would require delay.” Therefore,
this case is distinguishable from Pollani and Smith. This case was a complex
white collar criminal trial that Montalvo was unprepared for because
Coleman had denied Montalvo almost all contact. Montalvo’s elevation to
full counsel would have necessitated delay, and the trial court so found in a
written order. Therefore, Coleman was not unconstitutionally deprived of
his right to counsel when the district court declined to elevate Montalvo to
full counsel.
III. Conclusion
Coleman’s initial waiver of counsel was knowing and voluntary, and
his request for elevation of standby counsel was properly denied because it
would have necessitated his delay. Accordingly, the judgment of the district
court is AFFIRMED.