United States v. Salim, No. 10-3648-cr (2d Cir. August 24, 2012) (Walker, Lynch, CJJ)
Mamdouh Salim, incarcerated on terrorism charges, stabbed and nearly killed an MCC guard in a misguided attempt to induce the district court to grant him a change of counsel. For that crime, he pled guilty to conspiracy to murder, and the attempt to murder, a federal official. At his sentencing, the court refused to apply the guidelines’ terrorism enhancement - it sentenced him to 32 years’ imprisonment - then declined to resentence him on a Crosby remand. In the circuit’s first decision in the case, which was a cross-appeal, the court rejected Salim’s challenges to his sentence, but agreed with the government that it was error not to apply the terrorism enhancement. See “How Not To Seek A Change of Counsel,” posted December 6, 2008.
This opinion concern’s Salim’s appeal after the resentencing, in which the district court sentenced him to life without parole. The circuit affirmed.
Before the resentencing, Salim’s counsel had written to the court and asked that Salim’s presence be waived or, alternatively, that Salim be present by videoconference. The court agreed to this latter proposal, and conducted a brief colloquy over the video feed at which Salim explained that he did not wish to be brought back to the Southern District because the last time that happened prison guards beat him. When the court asked whether he waived his right to be present, he said, “I don’t want to come to the Court. So I’m not going to be subjected to being beaten up ...,” and“[t]herefore, ... I am waiving my right to appear before you.”
The circuit agreed with Salim that this was not a valid waiver. The court began by holding that the constitutional right to be present, codified in Fed.R.Cr.P. 43, requires physical presence and is “not satisfied by participation through video conference.” While the right to presence can be waived, the waiver must be knowing and voluntary. Moreover, although it is possible that an attorney can waive the right on the defendant’s behalf, Salim’s attorney’s letter did not demonstrate a knowing and voluntary waiver. It merely said that counsel had “recently spoken to” Salim and that Salim wished to be allowed to waive his personal presence. Since this letter did not address knowingness and voluntariness, it was not a valid waiver.
Salim’s remarks during his colloquy with the court were no better. His stated desire to avoid coming to court so that he would not be beaten by local prison guards suggested that his waiver was the result of “fears of intimidation and physical abuse,” and not of his own free will. And there was no record evidence to suggest that Salim was lying about his fear or that the fear he expressed was not “reasonably grounded.” The record also suggested that he might have wished to attend in person if his “safety could be reasonably assured.” By analogy to a Faretta colloquy, the circuit held that the district court should have done more to assure that Salim’s waiver was knowing and voluntary.
That said, however, the circuit concluded that this error was subject to plain error review and that Salim could not establish that he was prejudiced. Salim probably satisfied the first two parts of the plain error test - there was an “error” that was “plain.” But he did not satisfy the third and fourth because he did not prove that his presence would have affected the outcome of the proceeding. Here, the district court had issued a written opinion in advance of the sentencing rejecting his arguments for leniency and explaining that its earlier decision to impose a sentence less than life had been infected by legal error. In addition, Salim’s appearance by video did not prevent him from making “any statement [seeking leniency] he chose” to the court.