Reaffirming the Defendant’s Personal Right to Testify:
United States v. Abboud (2d Cir. 2025)

Introduction

United States v. Abboud, No. 23-6054 (2d Cir. Mar. 24, 2025), is a Second Circuit summary order affirming the conviction and sentence of Wafa Abboud for conspiracy and substantive counts involving theft of federal program funds, bank fraud, and money laundering. Although non-precedential by rule, the panel’s decision provides a meticulous application of the constitutional right to testify, the standards governing a Rule 33 motion for a new trial, and the boundaries of district-court discretion when a defendant attempts to change course after the defense has rested. The primary issue on appeal was whether Abboud was denied her personal right to testify, allegedly because (1) counsel misled her and (2) the district judge dissuaded and ultimately prevented her from taking the stand.

Summary of the Judgment

The court affirmed the district court’s denial of Abboud’s Rule 33 motion for a new trial. Key holdings include:

• The right to testify is personal and waivable only by the defendant; however, a knowing and voluntary decision to remain silent, once made, forecloses a later demand to reopen the defense case after summations.
• Counsel did not override Abboud’s will; evidence—including contemporaneous emails—demonstrated that she had knowingly elected not to testify and reversed course only during closing arguments.
• The district court did not abuse its discretion in refusing to reopen the case post-summation, especially given conflicting representations about counsel’s performance and the risk of prejudice.

Analysis

Precedents Cited

• Rock v. Arkansas, 483 U.S. 44 (1987): Identified the right to testify as essential to due process.
• Faretta v. California, 422 U.S. 806 (1975): Recognized autonomy rights of a defendant (self-representation), cited for the personal nature of trial-related waivers.
• Bennett v. United States, 663 F.3d 71 (2d Cir. 2011): Located the right to testify in multiple constitutional clauses.
• Brown v. Artuz, 124 F.3d 73 (2d Cir. 1997): Formulated the obligation of counsel to advise—yet not decide—regarding testifying, and clarified that courts have no affirmative duty to canvas the defendant.
• United States v. Alston, 899 F.3d 135 (2d Cir. 2018): Articulated the abuse-of-discretion and clear-error standards under Rule 33.
• United States v. Burger, 739 F.2d 805 (2d Cir. 1984); United States v. Crawford, 533 F.3d 133 (2d Cir. 2008); Eason v. United States, 281 F.2d 818 (9th Cir. 1960): Addressed the narrow discretion to reopen evidence after both sides rest.

These authorities collectively provided the doctrinal framework: the personal nature of the testimonial right, the standard for evaluating alleged waiver violations, and the constraints on post-rest interventions.

Legal Reasoning

1. Standard of Review. A Rule 33 ruling is reviewed for abuse of discretion; subsidiary factual findings for clear error (Alston). The appellate court emphasized deference to the district judge’s credibility determinations, especially after an evidentiary hearing.

2. Was the waiver voluntary? The panel weighed conflicting testimony. Abboud claimed perpetual intent to testify but misunderstanding of timing. Counsel and contemporaneous emails showed repeated vacillation with a final, pre-rest decision not to testify. Because credibility favored counsel, the court found a knowing waiver. Under Brown, once the defendant makes an informed choice, counsel’s failure to renew the topic mid-summation does not override her will.

3. District court’s conduct. Contrary to Abboud’s contention, the judge explicitly stated it was her decision to testify and acknowledged counsel could not forbid it. Advising against testifying, given tactical concerns, did not constitute coercion. Furthermore, precedent imposes “no general obligation” on judges to inquire regarding the testimonial choice (Brown).

4. Refusal to Reopen the Case. Applying factors in Crawford, the court endorsed the district judge’s reluctance: (a) late timing (after closings); (b) potential prejudice and confusion; (c) defendant’s expressed discontent with current counsel suggesting ineffective assistance issues, and (d) availability of a post-trial remedy (the very Rule 33 motion litigated). Hence, no abuse of discretion.

Impact

Although issued as a non-precedential summary order, Abboud functions as persuasive authority within the Second Circuit and beyond for several reasons:

• Clarifies counsel’s obligations: Confirms that thorough advisement (even with strong recommendations) meets constitutional requirements so long as the ultimate choice is left to the defendant.
• Affirms judicial restraint: Reinforces that trial judges have no general duty to canvas a defendant on the record, curtailing claims premised solely on the absence of a judicial inquiry.
• Emphasizes timeliness: Signals to trial counsel and defendants that equivocation must end before resting; post-summation reversals face steep procedural barriers.
• Practical guidance on reopening evidence: Adds another example endorsing “extreme reluctance” to reopen after closings, particularly where attorney-client conflict arises.

Complex Concepts Simplified

• Rule 33 Motion (Federal Rules of Criminal Procedure). A post-verdict request for a new trial “in the interest of justice.” The movant must show a serious miscarriage—here, denial of constitutional rights.
• Abuse of Discretion vs. Clear Error. • “Abuse of discretion” asks whether the trial court’s decision falls outside the range of reasonable choices. • “Clear error” is a higher threshold—findings are overturned only if left with a “definite and firm conviction” that a mistake occurred.
• Personal Right to Testify. Individual to the accused; cannot be waived by counsel. To be effective, the defendant must knowingly and voluntarily choose to waive it.
• Reopening Evidence. After the defense rests, the court may—rarely—permit further testimony. Risks include jury confusion, unfair surprise, and disruption of trial strategy.

Conclusion

United States v. Abboud underscores that the right to testify, though fundamental, is bounded by procedural realities: a defendant’s informed, voluntary waiver stands unless timely revoked, and courts retain broad discretion to maintain trial integrity once the defense has rested. While Abboud’s summary order cannot bind future panels, it enriches the jurisprudential mosaic by illustrating how appellate courts assess testimonial-rights claims, evaluate counsel-client interactions, and balance fairness against orderly procedure. Practitioners should draw the lesson that unequivocal, on-the-record decisions before resting are crucial, and belated changes of heart will seldom warrant reopening a case—or a new trial—absent compelling, documented prejudice.