                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                September 28, 2005
                                No. 04-14391                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                   D. C. Docket No. 03-00413-CR-TWT-1-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

JEFF NORTH,

                                                              Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________
                             (September 28, 2005)


Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Jeff North appeals his conviction for possession with intent to distribute
cocaine. North argues that the district court violated his constitutional right to self-

representation when it did not hold a hearing to determine whether North had made

a knowing and intelligent decision to represent himself. Because North did not

clearly and unequivocally assert his right to self-representation, we affirm.

                                 I. BACKGROUND

      A grand jury indicted North with possession of a firearm as a felon,

possession with intent to distribute cocaine, and using and carrying a firearm

during and in relation to the commission of a drug trafficking crime. The district

court appointed Jeff Ertel, an attorney from the Federal Public Defender program,

to represent North. Ertel represented North when North pleaded not guilty to the

three charges.

      North had a stormy relationship with Ertel. North complained about Ertel’s

representation, even though Ertel had filed various pre-trial motions on North’s

behalf. When the magistrate judge responded to North’s complaints by holding an

attorney-conflict hearing, North reversed his position and stated that he was

pleased with Ertel. North then complained again, directed Ertel to withdraw, and

filed a complaint against Ertel with the Georgia Bar Association. Ertel filed a

motion to withdraw and the magistrate judge granted it, even though the magistrate

judge observed that North’s complaints were largely unfounded. The magistrate



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judge appointed attorney Michael Trost to represent North.

      Trost negotiated and North entered a guilty plea on the charge of possession

of a firearm as a felon. At the change of plea hearing, North affirmed both that he

had had “sufficient time to think about and discuss this matter fully with [his]

attorney before entering a plea of guilty” and that he was “satisfied” with Trost’s

representation. The district court accepted the guilty plea.

      A few weeks before sentencing, North made a pro se motion to withdraw his

guilty plea. At the motion hearing, Trost said that he had told North there could be

negative consequences to withdrawing his plea. The district court advised North

that he was “getting good advice from [his] lawyers,” and the court perceived that

North was rejecting Trost’s advice because North did not like the consequences he

was facing. North asserted that he had not taken his medication the day he pleaded

guilty. The court allowed North to withdraw his guilty plea.

      In his motion to withdraw the plea, North also requested new counsel. North

specified, by name, an attorney from the office of public defender who North

apparently thought would provide superior counsel. The court told North, “You

don’t have the right to have an appointed lawyer and then get to pick and choose

and to fire your lawyer just because you’re unhappy with him.” The court refused

to appoint North a third lawyer. North said he understood that he would be



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represented at trial by Trost.

      Days later, Trost filed a motion to withdraw from representing North. Trost

cited North’s persistent antagonism and North’s repeated “contention that counsel

will not properly represent defendant as he wishes and as he has directed counsel.”

The court denied Trost’s motion to withdraw. The court said of North, “It appears

that he will be unhappy with any attorney who gives him honest and competent

advice.” Trost continued to represent North.

      North continued to complain about Trost. At a pre-trial conference, Trost

told the court that North had filed a complaint against Trost with the Georgia Bar

Association and North had directed Trost to take no further action on his behalf.

The court then advised North of his right to self-representation, gave North an

opportunity to be heard about whether he wanted representation, and found that

North had not decided to represent himself at trial. The district court ordered Trost

to continue representing North.

      At start of trial, North had nothing more to say about his unhappiness with

his attorney. The jury convicted North on the charge of possession with intent to

distribute cocaine. At sentencing, North stated, “Mr. Trost did a great job. I mean,

he did a spectacular job.”




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                          II. STANDARD OF REVIEW

      “Whether a waiver of counsel is knowing and intelligent is a mixed question

of law and fact which we review de novo.” United States v. Cash, 47 F.3d 1083,

1088 (11th Cir. 1995) (citing Greene v. United States, 880 F.2d 1299, 1303 (11th

Cir. 1989)).

                                  III. DISCUSSION

      North argues that the district court violated his right, under the Sixth

Amendment, to represent himself. See Faretta v. California, 422 U.S. 806, 95 S.

Ct. 2525 (1975). North contends that the district court should have conducted a

hearing to determine whether North’s waiver of his right to counsel was knowing

and intelligent. The problem with North’s argument is that he never expressed

clearly a desire to represent himself.

      Before a criminal defendant may waive his right to counsel and proceed pro

se, he must “clearly and unequivocally assert his right of self-representation.”

Nelson v. Alabama, 292 F.3d 1291, 1295 (11th Cir. 2002); see also Cross v. United

States, 893 F.2d 1287, 1290 (11th Cir. 1990) (citing Faretta, 422 U.S. at 835, 95 S.

Ct. at 2541; United States v. Fant, 890 F.2d 408, 409 (11th Cir. 1989); Orazio v.

Dugger, 876 F.2d 1508, 1512 (11th Cir. 1989)). This rule recognizes “the thin line

that a district court must traverse in evaluating demands to proceed pro se, and the



                                          5
knowledge that shrewd litigants can exploit this difficult constitutional area by

making ambiguous self-representation claims to inject error into the record.”

Cross, 893 F.2d at 1290. The record supports the finding of the district court that

North did not assert his right to self-representation.

      North’s colloquies with the district court, in the context of North’s pretrial

conduct, evidence that North disagreed with some strategic decisions and

professional judgments of his attorney, but North still wanted legal representation.

The closest North came to asserting his right to self-representation was when he

made the following equivocal statement to the district court: “[I]f I have to

represent myself, your Honor, instead of going into trial with somebody that I

really don’t trust, your Honor, I think I’d rather represent myself your Honor.”

This statement was not an assertion of North’s right to self-representation, but was

yet another expression of North’s dissatisfaction with his appointed lawyer.

      North was frustrated that Trost would not file a motion to suppress evidence,

even though the motion was so baseless that the court stated there were no grounds

to file it. North apparently thought Trost’s responsibility as a lawyer required

Trost to pursue whatever strategy North wanted. Although North’s statements

evidenced that he wanted a new lawyer, North’s statements did not evidence a

clear desire to conduct his own defense.



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      In contrast, the defendant in Orazio v. Dugger, the main case upon which

North relies, clearly expressed his desire to conduct his own defense. 876 F.2d

1508 (11th Cir. 1989). In Orazio, the defendant said, “Yes, I did want to represent

myself on two of the matters that I’m facing right now which is the extortion and

the extradition to New York and the contraband charge, so three of them

altogether.” Id. at 1509. The defendant’s statement in Orazio was a clear assertion

of the right to self-representation. North’s statements were not.

                                IV. CONCLUSION

      Because North did not express a clear and unequivocal desire to conduct his

own defense, the district court did not err when it did not hold a hearing to

determine whether North had made a knowing and intelligent waiver of his right to

counsel.

      AFFIRMED.




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