                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 08-4603


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MARCELLUS THOMAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00003-WO-1)


Argued:   May 12, 2010                     Decided:   August 6, 2010


Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Arthur L.
ALARCÓN, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.


Affirmed by unpublished opinion. Senior Judge Alarcón wrote the
opinion, in which Chief Judge Traxler and Judge Motz joined.


ARGUED: Eugene Ernest Lester, III, SHARPLESS & STAVOLA, PA,
Greensboro, North Carolina, for Appellant.     Harry L. Hobgood,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.    ON BRIEF: Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
ALARCÓN, Senior Circuit Judge:

      Marcellus         Thomas    appeals       from       the     judgment       entered

following his conviction by a jury of twelve counts of violating

26 U.S.C. § 7206(2) by aiding and assisting in the preparation

of false federal income tax returns.                      He seeks reversal on the

ground    that    the    district   court       violated      his    Sixth     Amendment

right    to   represent     himself   at       his    trial      despite    his   timely,

voluntary, knowing, intelligent, and unequivocal request to do

so.     We affirm because we conclude that the district court did

not err in denying Thomas’s motion to represent himself on the

grounds that it was manipulative, and not clear and unequivocal.

We also determine that his request was made to delay, obstruct,

and hinder the timely disposition of this case.



                                           I

      Thomas was indicted on January 28, 2008.                      When he appeared

for arraignment on February 2, 2008, attorney David Smith made a

limited appearance on behalf of Thomas.                    Arraignment was set for

February 7, 2008.

      On February 5, 2008, William S. Trinette of the Federal

Defender’s       Office,    was   appointed          to    represent       Thomas.    On

February 7, 2008, Thomas entered a not guilty plea to all the

charges in the indictment.            The district court ordered that a

trial by jury be set for March 10, 2008.

                                           2
       On March 3, 2008, Assistant Public Defender Trinette filed

a motion to withdraw as counsel.                      He explained that withdrawal

was required because of a conflict of interest arising from the

fact that an investigator for the Federal Defender’s Office was

related to one of the persons listed in the indictment.

       Attorney Brian Gates was appointed to represent Thomas on

March 13, 2008.          On April 10, 2008, Thomas filed a pro se motion

for the substitution of counsel.                      He complained that Mr. Gates

urged    him    to     plead    guilty,       had    only     met   him    once,       did    not

request    that      the    court      appoint       an    investigator,         and    had    no

experience in trying an income tax case.                            On April 16, 2008,

Thomas filed a pro se motion to continue the trial date.                                       On

April 17, 2008, the district court scheduled the trial date for

April 23, 2008.            During the status hearing on April 17, 2008,

Thomas     stated:          “If       I’m     not    satisfied        with    [Mr. Gates’]

services, can I just after the discussion come back and move the

Court that I represent myself.”                      The district court responded:

“You    clearly      have       the    right    to        represent      yourself.”           The

district court denied the motion to substitute counsel.

       On April 21, 2008, Thomas filed another pro se motion for

the    appointment         of   substitute          counsel.        On    that    date,       the

district       court    granted        this    request.          On      April    24,    2008,

attorney Robert A. Broadie was appointed to represent Thomas.



                                               3
      Thomas filed numerous pro se motions after Mr. Broadie was

appointed to represent him.              At a May 8, 2008, status hearing,

the district court stated to Thomas:

           Now if you continue to persist in making your own
      motions to the Court outside or separate from the
      advice of counsel that Mr. Broadie has rendered, or if
      you want to proceed pro se, then we’ll have a separate
      hearing to determine whether or not you want to
      proceed with counsel or you want to represent
      yourself.

Thomas replied:        “I understand that.             I would respect the Court

and Your Honor not to assume that I appreciate the services of

my attorney”.

      The    Court    then    inquired:         “Are    you   satisfied     with     the

services of Mr. Broadie?”

      Thomas responded:         “At this time I am, Your Honor.”

      On May 28, 2008, Thomas filed a pro se motion to continue

the trial date.           The district court denied all outstanding pro

se    motions   at    a     status   conference        held     on   May   30,   2008,

including Thomas’s pro se motion to continue the trial date.

The   date   for     jury    selection    and    trial    was    again     ordered    to

commence on June 2, 2008.

      On June 1, 2008, Mr. Broadie filed a motion to withdraw as

Thomas’ trial counsel.           On June 2, 2008, Thomas filed a pro se

motion for the appointment of substitute counsel.




                                          4
      On June 2, 2008, the district court conducted a hearing,

before the scheduled commencement of jury selection, to consider

Thomas’s motion to stay the trial of this matter until Thomas’s

appeal     to   the     Fourth      Circuit,      filed      on   May   30,       2008,   was

determined by this Court.               In his interlocutory appeal, Thomas

sought review of the May 30, 2008 denial of (1) his motion to

dismiss the indictment, (2) the denial of his motion to continue

the   trial       date,    (3) the     denial      of       his   motion     to    suppress

evidence, and (4) his motion that Judge William L. Osteen, Jr.,

recuse himself from presiding over the trial.

      After hearing Thomas’s argument in support of his motion

for a stay, the district court denied the motion.                            It concluded

that it was not divested of jurisdiction because it had not

entered a final judgment in this matter.

      Thomas then requested a three-day stay “to discuss with my

new   counsel      on     the   matter.”         The   district      court    denied      the

motion.

      The   district        court    then    noted      that      Mr. Broadie       filed    a

motion to withdraw as Thomas’s counsel on Sunday, June 1, 2008

at approximately 10:00 p.m.                 Mr. Broadie informed the district

court that he filed the motion after Thomas told him he had

“concerns with me representing him further in this trial.”

      In    his    pro     se    substitution          of    counsel    motion,      Thomas

asserted that Mr. Broadie’s representation was inadequate.                                  He

                                             5
informed the district court “me and my attorney have not met,

which is in the record, to even discuss any theories of trial.”

He also asserted that Mr. Broadie had failed to request funds

for the appointment of a tax expert.                      Thomas further complained

that Mr. Broadie had never tried a tax case.                           Thomas stated:      “I

ask the court on the record in the right of trial fairness and

my rights under the constitution to (sic) the Sixth Amendment to

have an effective and adequate counsel.”

      At    the      request   of    the    district           court    for   a    response,

Mr. Broadie stated that he had had numerous phone calls with his

client.         He    had   also     set    aside         the    preceding        Wednesday,

Thursday, and Friday, as well as the whole weekend, to meet with

Thomas     in   preparation     for    trial.            Thomas    did    not      meet   with

Mr. Broadie, however, until Sunday.                        On that day, instead of

discussing defense theories, Thomas focused on their difference

of opinion as to “the matters of law that he wanted to proceed

upon and the various motions he wanted to file.”                              The district

court denied the motion for a substitution of counsel.

      Thomas was then permitted to make a further statement of

his position.         He stated that “At this moment, Your Honor, we’re

not ready for trial... I don’t – at this time, Your Honor, I

don’t have adequate representation.                      That’s why I moved to get

new   counsel,       Your   Honor.         Or       in   the    interests     of    justice,

possibly a Motion to Continue, that I could have a right to

                                                6
discuss the factual elements with my attorney so I can have a

fair trial.”       The district court treated Thomas’s request as a

motion for reconsideration of its earlier ruling denying the

motion   for   a   substitution   of     counsel.         In   response,    Thomas

stated that he felt that Judge Osteen’s decision was biased.

Thomas then stated:       “And let the record show that the defendant

does not choose to proceed with Mr. Broadie as his attorney.”

     The district court advised the parties it was going to take

a ten minute recess “to allow Mr. Broadie and Mr. Thomas an

opportunity to have whatever further discussions they want to

have, in view of the court’s denial of the Motion to Appoint

Substitute Counsel in this matter.”

     During    the    recess,   Thomas      served     two     documents   on   the

district   court     in   which   he       requested      a    stay   of   further

proceedings, and a notice of appeal based on the denial of his

motion to substitute counsel.              The district court denied the

motion for a stay.

     The   district    court    then   inquired      of   Mr. Broadie      whether

“Mr. Thomas wants to proceed with counsel, or does Mr. Thomas

want to be heard on which he alluded to, that is, proceeding pro

se in this matter?”       Mr. Broadie replied:            “I can assert to the

court that I’ve been advised that that will be his position, to

proceed pro se, but I will tender Mr. Thomas to make sure that



                                       7
the court had adequate understanding of his position, because

that is the very reason I filed this motion.”

     Thomas      requested     that     the    district     court      rule   on

Mr. Broadie’s motion to withdraw as his attorney.               The district

court replied:      “All right.       Mr. Broadie’s Motion to Withdraw is

denied.    Now, how do you want to proceed?               Mr. Thomas, do you

want to be heard on the Motion to Proceed in Pro Se?”                   (Thomas

replied, “Not at this time, Your Honor.             I will hold my right,

that’s my right under the constitution to represent myself.                   If

I want to go pro se anytime in this proceeding, and right now –-

and I would right now hold my right to that.”

     In response, the district court summarized its findings as

follows:

     1.    Thomas’s pro se motion to substitute counsel was

           not timely filed.          It was filed on 8:30 a.m. on

           the   date   that   jury     selection   was    scheduled    to

           begin.

     2.    The untimeliness of the motion “casts some doubt

           of the defendant’s motives in filing the Motion to

           Substitute    Counsel;       that   is   with    respect     to

           attempts to obstruct, hinder and delay the trial

           that is scheduled in this matter.”

     3.    “The court does not find that conflict is so great

           between attorney and [client] that it has resulted

                                        8
            in a total lack of communication, preventing an

            adequate defense based on what’s been described in

            this court during the course of these proceedings.

      4.    Any failure to communicate arises from Thomas’s

            “desire to proceed ahead on legal arguments that

            the defendant desires to make.”

      Based   on     these     findings,       the   district     court     denied

Mr. Broadie’s      motion     to   withdraw     as   counsel.      Thomas      then

stated:

      I would like to be –- have –- a motion be heard at a
      further time with respect to proceeding pro se and
      would respectfully request the court to grant me I
      would say a week to review my options and either
      proceed pro se or even try to hire a new attorney in
      light of my appeal.”

The   district     court    denied   the      motion.    It     noted   that    the

indictment had been pending in this case since January 28, 2008.

      The   district       court   then    proceeded    to    discuss     Thomas’s

suppression motion and the proposed instructions to the jury

with counsel.      Thomas then made an oral motion to proceed in pro

se.   The district court stated:

           [Y]our motion is denied at this point.    Having
      just told me 30 or 40 minutes ago that you wanted to
      keep Mr. Broadie as your counsel, to now turn around
      after what’s transpired in this courtroom since I’ve
      returned and make a Motion to Proceed Pro Se, just is
      nothing more than to delay these proceedings.




                                          9
        The district court advised Thomas that it would hear from

him again on his motion to proceed pro se after concluding the

hearing with counsel on the suppression motion and the proposed

jury instructions.

        After the district court had concluded its conference with

counsel, it inquired of Thomas whether he wanted to continue

being represented by Mr. Broadie.                 Thomas responded that because

Mr. Broadie did not have experience regarding tax law and the

Internal Revenue Code, and had not conferred with him about the

trial exhibits, or discussed his defense, he wished to represent

himself     at    trial.          He   requested     that        he    be     granted    “a

considerable amount of time to, on my own, hire or get tax

experts and any witnesses or experts that would help me avail

myself of a proper and good defense in this matter.”                               (R.T. at

100.)      The district court denied the motion to continue the

trial.     It then inquired of Thomas whether he wished to proceed

pro se in view of the fact that his motion for a continuance had

been denied.       Thomas responded that he wished to proceed pro se.

Thomas    also    stated,    however,         that   if    the    Court       of    Appeals

granted     his     appeal    from      the       denial     of       his     motion    for

substitution of counsel, he wanted to be represented by counsel

at   trial.         Thereupon,         the    district       court          conducted    an

evidentiary       hearing    to    determine       whether    Thomas’s         motion    to

represent himself should be granted.

                                             10
      Thomas     was    placed        under    oath       and   was   questioned      by    the

district court.           Thomas testified that he had not been treated

recently for mental illness, or addiction to narcotics.

      Thomas testified that he was aware that he was charged with

thirteen       counts     of       violating       26     U.S.C.   § 7206(2),        and    the

maximum possible penalties that could be imposed if he were to

be convicted of these crimes.                  Thomas also admitted that he had

not     met    with     Mr.        Broadie    on    Wednesday,        Thursday,       Friday,

Saturday, and Sunday, the days his appointed counsel had made

available to concur with his client because he had car trouble,

and was involved in filing pro se legal motions.                                  Thomas also

conceded that he filed pro se motions to continue the trial and

filed motions in the Court of Appeal to stay the trial pending

the determination of these appeals.                       He stated that he had filed

a notice of appeal that date and had requested a stay of the

district court’s proceedings.                  Thomas also admitted that he had

informed the district court, during earlier proceedings on that

date,    that     he    wished        to   proceed        represented    by       Mr. Broadie

roughly an hour and one-half earlier on June 2, 2008.                                (R.T. at

108.)      Thomas further conceded he had changed his mind again

about requesting self-representation.

      In      addition,       he    admitted       that    he   had   made    a    motion    to

continue the trial fifteen minutes earlier.                           In response to the

district court’s inquiry, Thomas also stated he understood that

                                               11
if he proceeded to represent himself, he would have to conduct

voir    dire,    make     the     opening        statement,       and        conduct       his

examination     of    witnesses        in   accordance          with     the    rules       of

evidence.       Thomas also acknowledged that he was not familiar

with the tax laws.

       The   district     court       denied     Thomas’s       motion    to    represent

himself because it was not clear and unequivocal.                         It also found

that it was untimely.

       The district court explained that whether Thomas’s motion

to represent himself was knowing, intelligent, and voluntary was

of   “significant”      concern       because      of   Thomas’s       vacillation          in

asserting his right to self-representation.                        The Court opined

that   Thomas’s      conduct     exhibited        manipulation         and     efforts      to

delay, obstruct and hinder the orderly disposition of this case.

The district      court    denied       Thomas’s    motion       to    proceed       pro    se

because it concluded that his motion to proceed pro se was being

“used as a tactic to delay and disrupt the trial and distort the

system and manipulate the trial process.”

       Thomas   was    found    guilty      of    Counts    2    through       13    of    the

indictment.      Thomas was sentenced to serve fifty-six months of

imprisonment and ordered to pay restitution in the amount of

$19,812.     On October 22, 2008, Thomas filed a timely Notice of

Appeal.      This     Court     had    jurisdiction        pursuant      to     28   U.S.C.

§ 1291.

                                            12
                                               II

      Thomas has presented the following issue for review in this

appeal:        “Did        the     trial      court       violate      Mr. Thomas’s         Sixth

Amendment right to proceed at trial without the assistance of

counsel when it forced appointed counsel upon him despite his

timely,      voluntary,           knowing,          and       intelligent         requests       to

represent himself?”              (Appellant’s Opening Br. at 1.)                    “We review

a   district      court’s         denial      of    a     defendant’s       right     to    self-

representation de novo.”                United States v. Bush, 404 F.3d 263,

270 (4th Cir. 2005)(citing United States v. Singleton, 107 F.3d

1091, 1996 (4th cir. 1997).                        “We review the district court’s

findings     of   historical           fact    for       clear      error.”        Id.   (citing

United     States     v.    Flackovich,            209    F.3d      1227,   1236    (10th    Cir.

2000).

      Citing      Faretta         v.   California,            422    U.S.   806     (1975)       and

28 U.S.C.      § 1654,       Thomas        argues         that      “[a]    defendant       in    a

criminal case has both a statutory and constitutional right to

proceed     without        the     assistance            of   counsel.” *          (Appellant’s

Opening Br. at 8.)               He contends that the trial court’s denial of


      *
          Section 1645 reads as follows:

           In all courts of the United States the parties
      may plead and conduct their own cases personally or by
      counsel as, by the rules of such courts, respectively
      are permitted to manage and conduct cases therein.”



                                               13
his motion to dismiss appointed counsel to represent himself”

defeat[ed] the absolute right of a mentally competent defendant

to    dismiss   appointed     counsel     and   conduct    his    own   defense.”

(Appellant’s Opening Br. at 13.)              We disagree.       Faretta did not

create an “absolute right” to self-representation to mentally

competent defendants who knowingly and intelligently waive their

right to counsel.          In fact, in Bush, this Court expressly held

that the Faretta right to self-representation is not absolute.

Id.

       In   Bush,   this    Court   set      forth   the   circumstances     that

justify the denial of a mentally competent defendant’s motion

for self-representation:

            In determining whether a defendant properly has
       exercised his right to self-representation and waiving
       his right to counsel, we ascertain whether the
       assertion of the right to self-representation is
       (1) clear and unequivocal, (2) knowing, intelligent
       and voluntary; and (3) timely.    The requirement that
       the assertion be clear and unequivocal is necessary to
       protect against an inadvertent waiver of the right to
       counsel by a defendant’s occasional musings, and it
       also prevents a defendant from taking advantage of and
       manipulating the mutual exclusivity of the rights to
       counsel and self-representation.      Addi-tionally, in
       ambiguous   situations   created   by    a   defendant’s
       vacillation   or  manipulation,  we    must  ascribe   a
       constitutional primacy to the right to counsel.       At
       bottom, the Faretta right to self-representation is
       not absolute and the government’s interest in ensuring
       the integrity and efficiency of the trial outweighs
       the defendant’s interest in acting as his own instant
       lawyer. (emphasis added).




                                        14
Bush, 404 F.3d at 271.            (internal citations and quotation marks

omitted).

                                             A

       Thomas’s pro se motion for a substitution of counsel and a

stay of further proceedings was filed on the morning set for

trial.       In United States v. Reevey, 364 F.3d 151 (4th Cir.

2004),    this   Court    held     that      “a    continuance      request      for    the

substitution     of   counsel      made      on    the     first    day   of    trial    is

clearly       ‘untimely         under     all        but      the      most       exigent

circumstances’.”          Id.     at    157.       (quoting        United      States    v.

Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994)).                            Thomas has

failed to identify any exigent circumstances that demonstrate

that his request for a substitution of counsel and a continuance

of his trial was timely.            He had asserted the same reasons for

his dissatisfaction with Mr. Broadie several times previously.

Thomas’s assertion that Mr. Broadie was not prepared for trial

because he had not conferred with Thomas was contrary to the

undisputed fact that he failed to meet with his counsel on the

days   Mr. Broadie       made    himself         available    to    discuss      Thomas’s

defense.

       “We   review   for   abuse       of       discretion    a    district      court’s

rulings on a motion to substitute counsel and on a request for a

continuance.”     Reevey, 364 F.3d at 156.                   The district court did



                                             15
not    abuse     its    discretion       in     denying       Thomas’s      motion    for    a

substitution of counsel and a continuance.

                                               B

        Thomas’s motion to proceed in pro se was asserted for the

first    time    on     the   date      set    for    trial.       The     district      court

advised him on April 17, 2008, that he had a right to represent

himself.        On May 8, 2008, Thomas informed the district court

that he was satisfied with Mr. Broadie’s representation.                              At the

May 30, 2008, status conference, Thomas did not indicate that he

desired to represent himself.

        In    United    States     v.    Lawrence,          605   F.2d    1321    (4th     Cir.

1979), this Court held that the right of self-representation

must     be     asserted      at     some      time     “before        meaningful        trial

proceedings       have    commenced,          and    that    thereafter      its    exercise

rests with the sound discretion of the trial court.”                                  Id. at

1325.        Thomas’s motion to represent himself was not made before

meaningful trial proceedings had commenced.                           It was asserted on

the day of trial after the district court considered in limine

motions and had conferred with counsel about the instructions

that should be addressed to the prospective jurors.

        Thomas contends that “[d]efendants are allowed to assert

their    right     to    self-representation                anytime      before    trial    or

before the jury is empanelled.”                       (Appellant’s Opening Br. at

17.)     Thomas cites McKaskle v. Wiggins, 465 U.S. 168 (1984) in

                                               16
support of this proposition.                  No issue was raised in McKaskle

regarding      whether        the        assertion      of     a   motion          for   self-

representation can be asserted anytime before trial or the jury

is empanelled.        The sole issue raised in McKaskle was “what role

standby counsel who is present at trial over the defendant’s

objection may play consistent with the protection of defendant’s

Faretta rights.”           McKaskle, 465 U.S. at 170.

      Our research has not disclosed an opinion of this Court

that has expressly considered whether the denial of a motion for

self-representation as untimely that was filed on the date set

for   trial,    but    prior        to    jury     selection,      is    erroneous.          In

Lawrence,      this    Court      stated         that   “[w]hen       ‘meaningful        trial

proceedings have commenced’ will of course vary from case to

case.’”     Lawrence, 605 F.2d at 1325.                   In that matter, this Court

held that the defendant’s motion was untimely when the jury had

been selected but had not yet been sworn.                             Id.      We need not

decide in this case whether the filing of a motion for self-

representation        on    the     date     set    for      trial,     but    before      jury

selection has commenced is timely because we are persuaded that

the district court did not clearly err in finding that Thomas’s

request   to    represent         himself        was    manipulative          to   delay   and

obstruct the orderly disposition of this case, and therefore,

was not clear and unequivocal.



                                              17
                                            C

       Thomas    argues    that     the   district       court     clearly   erred    in

finding that his purported waiver of counsel was not knowing,

intelligent, voluntary, and clear and unequivocal.                       The district

court found that Thomas “vacillated back and forth at least a

couple of times over the past two hours.”

       It is undisputed that Thomas was mentally competent to make

a knowing, intelligent, and voluntary waiver of his right to

counsel.        The   district      court       placed    Thomas    under    oath    and

inquired      whether    he   was   addicted       to    drugs     or   suffered    from

mental illness.         Thomas also testified that he was aware of the

charges against him, the maximum penalties and the fact that he

had to conduct his voir dire of the jury, present an opening

statement, and examine witnesses in accordance with the rules of

evidence.

       After the district court denied his motion to represent

himself, Thomas filed another interlocutory appeal before this

Circuit.        After the jury selection proceedings had commenced,

Thomas stated:          “I would like to have a motion to get time to

get a new attorney at my own expense.                    Will Your Honor entertain

me doing that.”           In denying this motion, the district court

stated:       “You’ve had since January to find your own counsel and

you,    for     whatever      reason,     have     not     done     that.”     Thomas

responded:       “But for the record, I would like to have a motion

                                          18
to dismiss my attorney and have time to get another lawyer.”

This motion again cast doubt on whether his earlier request that

he be granted the right to represent himself was unequivocal.

It was yet another belated attempt to delay his trial.



                                       CONCLUSION

       The record supports the district court’s determination that

Thomas’s     request      to     represent         himself        was     not        clear     and

unequivocal.       On the eve of the original April 10, 2008, trial

date, Thomas asked to have Mr. Gates removed and replaced with

new    counsel     because     he     disagreed      with     Thomas          as    to   how    to

prepare for trial. At a hearing on April 16, 2008, Mr. Gates

informed the court that he would not “engage in tactics that I

think are unwise or ill-conceived.”                     After the district court

granted the request and appointed Mr. Broadie, Thomas continued

filing pro se motions even though he was represented by counsel.

On the eve of trial, Thomas again sought to substitute counsel,

or in the alternative, to represent himself, raising the same

arguments     he    made       when    he     sought    substitute                 counsel     for

Mr. Gates,       i.e.,     that       Mr. Broadie       had        not     met       with      him

sufficiently       to     discuss      the        evidence        in     the       case;     that

Mr. Broadie      lacked    sufficient        experience           in    tax    trials;       and,

that   Mr. Broadie       had    failed       to    engage     a    tax     expert.           When

questioned by the district court at the hearing on the morning

                                             19
jury selection was to begin, Thomas admitted he was not ready

for    trial    and     asked       for    a    continuance      to     “to    review      [his]

options.”       The record clearly demonstrates that Thomas’s request

to    represent       himself       was     a    manipulative         effort    to    present

particular arguments rather than a sincere desire to dispense

with Mr. Broadie’s services.                    See United States v. Frazier-El,

204    F.3d    553,     560     (4th      Cir.    2000)(“A       trial     court     must     be

permitted       to     distinguish         between       a     manipulative      effort       to

present particular arguments and a sincere desire to dispense

with the benefits of counsel.”)

       Thomas    argues        that       his    request       was    “conditional,”        not

“equivocal,” because he wanted to represent himself only if he

could    not     get     substitute            counsel       appointed.        (Appellant’s

Opening Br. at 14-15.)               Thomas’s argument misses the mark.                      The

district court did not conclude that his request was unequivocal

merely because he made it “in the alternative” to getting new

counsel.       As the district court noted, within the span of a few

hours at the hearing on the morning of June 2, 2008, Thomas

changed his mind several times as to whether he wanted to keep

his counsel or proceed pro se and represent himself, subject to

the granting of an order granting him a continuance.                                    It was

this    vacillation          that     constituted        the     lack     of   clarity      and

equivocation,          not     the        framing     of       the    request        “in    the



                                                 20
alternative,” which led the district court to conclude that the

request was not unequivocal.

      “In   ambiguous     situations    created        by    a     defendant’s

vacillation or manipulation, we must ascribe a ‘constitutional

primacy’ to the right to counsel because this right serves both

the   individual   and    collective    good,     as    opposed        to   only

individual interests served by protecting the right of self-

representation.”         Frazier-El,    204   F.3d      at       559   (quoting

Singleton, 107 F.3d at 1102.)      The district court did not err in

denying Thomas’s request to represent himself on the ground that

his request was not clear and unequivocal.

            Accordingly, we affirm.

                                                                       AFFIRMED




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