                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 16 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 98-2239
 DORA WILLIAMS,                                     (D.C. No. CR-95-15-LH)
                                                           (D.N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT        *




Before SEYMOUR, Chief Judge, TACHA , and BRISCOE, Circuit Judges.


      Dora Williams appeals her conviction of possession of a controlled

substance with intent to distribute in violation of 21 U.S.C. § 841(b)(1)(A). Prior

to trial, the district court denied Williams’ request to fire her attorney and to

proceed pro se. Because Williams clearly and unequivocally asserted her

intention to represent herself in a timely fashion, we conclude that the denial of

her request violated the Sixth Amendment. Accordingly, we reverse Williams’

conviction and remand the case for a new trial.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                            I.

       This case is before us for the second time. In 1995, Williams was

convicted of one count of possession of cocaine with intent to distribute, as well

as aiding and abetting, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2.

Record on Appeal (“ROA”), Docs. 20, 59. On appeal, we concluded that the

record raised a “genuine, reasonable doubt” about Williams’ competence.         United

States v. Williams , 113 F.3d 1155, 1160 (10th Cir. 1997). We noted that on the

first day of trial Williams (1) spoke “rapidly and excitedly, bombard[ing] the

court with requests,” id. at 1157; (2) apparently was crying uncontrollably and

“just want[ed] to leave,”   id. at 1158; (3) was, in the words of the district court,

“excitable and prone to making outbursts and interrupting the proceedings,”       id. at

1158; see also id. n.2 (reitering that Williams “persistently interrupted” the

court’s attempts to explain courtroom procedure, and ignored a “repeated

admonition not to interrupt but to trust her attorney”); and (4) threatened to leave

the courtroom because she couldn’t sit and “watch [her] rights be violated.”       Id.

at 1158. On the second day of trial, after failing to take a prescribed

antidepressant, Williams “proceeded to testify, interrupting questions, her

responses divagating from the questions into argumentative or self-pitying

statements, disregarding the court’s repeated warnings.”      Id. at 1157-58; see also

id. at 1158 (“To say that Ms. Williams was out of control during the second day


                                            2
of the proceeding euphemizes the record.”). During a subsequent motions

hearing, Williams again appeared “hysterical” and spoke in a manner that made it

impossible for the court reporter to record her statements.         Id. at 1158-59. Based

on this pattern of behavior, we vacated Williams’ conviction and remanded the

case to the district court to evaluate Williams’ competence to stand trial.       Id. at

1161.

        On remand, the district court duly ordered a competency evaluation. ROA,

Doc. 156. After reviewing the results of the evaluation, the district court

concluded that a “mental disease or defect” rendered Williams “unable to assist

properly in her defense.”    Id. , Doc. 162, at 1. Citing 18 U.S.C. § 4241, the court

committed Williams to the custody of the Attorney General for hospitalization

and treatment. Id. The district court ordered the director of the hospital

designated by the Attorney General to notify the court if he determined that

Williams “has recovered to such an extent that she is able to understand the

nature and consequences of the proceedings against her and to assist properly in

her defense.” Id. at 1-2. The hospital director provided such notice a few

months later, and the district court determined that Williams had indeed

recovered and was competent to stand trial.       Id. , Doc. 167.

        Williams’ second trial commenced on August 25, 1998. On August 24,

prior to voir dire, Ron Koch, Williams’ attorney, informed the district court that


                                              3
Williams wished to proceed pro se:

      [A]s you know, Ms. Williams had expressed a strong interest during
      the first trial to represent herself. She continues to have the opinion
      that she’s able to represent herself probably more competently than
      counsel. She has felt from the beginning that counsel that have been
      assigned to her have been thrust upon her against her wishes. She
      has terminated my services on repeated occasions and would simply
      ask that I step off the case, that she has never understood why the
      Court wouldn’t allow me to step off the case and let her represent
      herself. That was an issue in the prior trial, and it’s certainly an
      issue in this trial.

Id. , Vol. IV, at 7. The district court did not immediately respond to Williams’

request. A few minutes later, Assistant United States Attorney David Williams

sought clarification:

             MR. WILLIAMS: If I may, Your Honor, I’m not sure I
      followed the one thing that the Court said earlier. Does this
      defendant appear pro se with respect to anything to do in this case?
      Because if she does, I think that there are certain findings the Court
      ought [to] make under F[a]retta v. California . And what we would
      ask simply is that if the Court’s going to let her appear, that alters
      the status legally, I believe, with respect to Mr. Koch because I think
      the law is to the effect that one is not entitled to both appear
      personally, defend a case himself, and have a court-[ap]pointed
      attorney. There have been some instances in which the court has
      appointed something called a stand-by attorney . . . .

             THE COURT: Mr. Koch is counsel for the defendant. I have
      appointed Mr. Koch. He has not – he has not withdrawn. He is still
      counsel for the defendant, and he is acting as her counsel during this
      trial until he is removed as counsel.

Id. at 10-11. The government subsequently objected “to the defendant talking

unless asked a direct question because the Court’s already ruled she is


                                         4
represented.” Id. at 14. The following dialogue ensued:

            MR. KOCH: Your Honor, the Court has ruled that she cannot
      represent herself –

             THE COURT: Yes.

             MR. KOCH: – denying that motion again for this trial.

             THE DEFENDANT: I do have a right to help him.

             THE COURT: You can talk to your attorney. You can talk to
      your attorney and tell him of your concerns about any legal or
      factual issues that come up during the trial, but he must make the
      Court aware of those. He must rise and tell the Court and explain
      your position, and he has done so this morning on each occasion.
      It’s unnecessary for you to do that as well. He is a very good
      lawyer, and you tell him, and he will take care of it, okay?

Id. ; see also id. , Vol. VI, at 2-3 (indicating that the district court subsequently

told Williams that it was “not going to have you talk on the record” but Williams

could speak to Koch and the court would “put it on the record with the

attorney”). Two days later, the jury convicted Williams of the charged offense.

Id. , Vol. I, Doc. 178; Vol. VI at 4-6. The district court sentenced Williams to a

prison term of 210 months.    Id. , Vol. VI, at 16-17.

                                            II.

      The sole issue in this appeal is whether the district court denied Williams

her constitutional right to proceed without an attorney. When evaluating such a

claim, we review the district court’s finding of historical facts for clear error.

United States v. Boigegrain , 155 F.3d 1181, 1185 (10th Cir. 1998),       cert. denied

                                            5
119 S. Ct. 828 (1999). We review de novo whether a constitutional violation

actually occurred.   Id. ; cf. United States v. Taylor , 113 F.3d 1136, 1140 (10th

Cir. 1997) (stating that “[w]e review de novo the question of whether a waiver of

counsel is voluntary, knowing, and intelligent” under the Sixth Amendment).

       A criminal defendant has a constitutional and a statutory right to self-

representation. The former is expressly recognized in        Faretta v. California , 422

U.S. 806, 834-36 (1975), while the latter derives from 28 U.S.C. § 1654. When

exercised, the right of self-representation “usually increases the likelihood of a

trial outcome unfavorable to the defendant.”       McKaskle v. Wiggins , 465 U.S.

168, 177 n.8 (1984). As a result, “its denial is not amenable to ‘harmless error’

analysis. The right is either respected or denied; its deprivation cannot be

harmless.” Id. ; accord United States v. Baker , 84 F.3d 1263, 1264 (10th Cir.

1996). To invoke the right, a defendant must meet several requirements. First,

the defendant must “clearly and unequivocally” assert his intention to represent

himself. United States v. Floyd , 81 F.3d 1517, 1527 (10th Cir. 1996);        United

States v. Reddeck , 22 F.3d 1504, 1510 (10th Cir. 1994). Second, the defendant

must make this assertion in a timely fashion.      United States v. Nunez , 877 F.2d

1475, 1478-79 (10th Cir. 1989). Third, the defendant must “knowingly and

intelligently” relinquish the benefits of representation by counsel.      Boigegrain ,

155 F.3d at 1185; United States v. Treff , 924 F.2d 975, 978 (10th Cir. 1991). To


                                             6
ensure that the defendant’s waiver is knowing and intelligent, the trial court

should “conduct a thorough and comprehensive formal inquiry of the defendant

on the record to demonstrate that the defendant is aware of the nature of the

charges, the range of allowable punishments and possible defenses, and is fully

informed of the risks of proceeding pro se.”        United States v. Willie , 941 F.2d

1384, 1388 (10th Cir. 1991);    accord United States v. Padilla , 819 F.2d 952, 959

(10th Cir. 1987).

       Even if properly invoked, “a court may terminate the right to self-

representation, or the defendant may waive it[.]”        Munkus v. Furlong , 170 F.3d

980, 984 (10th Cir. 1999). For example, “[t]he right of self-representation is not

a license to abuse the dignity of the courtroom.”       Faretta , 422 U.S. at 834 n.46;

see generally Illinois v. Allen , 397 U.S. 337, 341 (1970) (stating that a defendant

may forfeit his right to be present at trial “if, after he has been warned by the

judge that he will be removed if he continues his disruptive behavior, he

nevertheless insists on conducting himself in a manner so disorderly, disruptive,

and disrespectful of the court that his trial cannot be carried on with him in the

courtroom”). Accordingly, a trial judge may “terminate self-representation by a

defendant who deliberately engages in serious and obstructionist misconduct.”

Faretta , 422 U.S. at 834 n. 46; see also McKaskle , 465 U.S. at 173 (recognizing

that an accused has a constitutional right to conduct his own defense provided


                                               7
that he “is able and willing to abide by rules of procedure and courtroom

protocol”).

       Even though the trial court in this case denied Williams’ request to proceed

pro se without comment, the government argues that the court’s decision was

justified under Faretta and McKaskle . The government maintains that the

“extensive record” available to the district court left “no doubt” about Williams’

inability to respect the dignity of the courtroom. Appellee’s Answer Brief at 9.

The government likewise asserts that “[a]lthough the district court did not make

findings regarding the obvious – that Williams was simply unable to control

herself to the extent that she would be able to abide by courtroom procedure and

protocol – an examination of the record provides a clear basis for affirmance.”

Id. at 13.

       This argument misses the mark. As an initial matter, it bears emphasis that

the district court cited neither   Faretta nor McKaskle as a basis for its decision –

even after the government brought       Faretta to the court’s attention.   Cf. United

States v. McKinley , 58 F.3d 1475, 1482 (10th Cir. 1995) (relying in part on a

similar omission as proof that the district court deprived the defendant of his

right to self-representation). In any event, the government’s suggestion that

Williams was unwilling to follow courtroom protocol is premised almost

exclusively on her bizarre behavior during the initial trial.      See Appellee’s


                                              8
Answer Brief at 9-11. This behavior was attributable to Williams’ apparent

incompetence, not conscious disrespect for courtroom procedures: “Although

Ms. Williams’ conduct included outbursts, interruptions of the attorneys, and

defiance of the district court’s instructions, we emphasize that we find that the

record raises a genuine, reasonable doubt about her competency to stand trial and

not that she merely engaged in obstructionism during the proceedings.”

Williams , 113 F.3d at 1160. Our observation in   Williams was confirmed by

subsequent proceedings in the district court, which established that Williams

suffered from a “mental disease or defect.” Only after several months of

hospitalization and treatment was Williams declared competent to stand trial.

      None of Williams’ conduct after she was deemed competent establishes

that she necessarily would have abused the dignity of the courtroom through self-

representation. The government contends that two interjections by Williams

prior to her second trial provide a sound basis for the district court’s order. They

do not. On the morning of August 24, Koch inquired whether Williams was

being tried on the original indictment or a superseding indictment. The district

court determined that the charge in both indictments was the same, and the

government agreed to dismiss the superseding indictment and proceed on the

original indictment. ROA, Vol. IV, at 7-10. Williams spoke twice during this




                                          9
exchange.   1
                Williams’ statements are admittedly inaccurate and not those of a

trained lawyer. But a defendant’s “legal prowess” is “not relevant to whether he


      1
             THE DEFENDANT: The superseding indictment was dismissed in
      magistrate court, was Judge Svet. I was brought here for
      arrangement, and the superseding indictment Judge Svet found did
      not pertain to me, that it – he vacated the draft on it. So therefore
      the superseding indictment does not exist in my case. I only want
      that acknowledged in open court because the superseding indictment
      was dismissed in September – on September the --September the
      17th by magistrate court. The findings was that the superseding
      indictment did not pertain to Dora Williams. Therefore, he vacated
      the draft.

                THE COURT: Counsel for the government want to respond to
      that?

             MR. WILLIAMS: The Court’s observation is accurate, that
      there is no difference at all between the original indictment and the
      superseding indictment insofar as the defendant on trial is
      concerned. The language is identical. The proceeding, I think, in
      magistrate court was that there was no need to arraign or to continue
      any process on the superseding indictment with respect to Ms.
      Williams because the superseding indictment changed nothing with
      respect to her. If the Court – if the trial was on the original
      indictment, I don’t have any problem if the Court wants to say that
      the trial that we’re going to conduct today is on the same indictment
      that was before the court of appeals.

             THE DEFENDANT: Sir, for the record, because it’s on
      record, the magistrate court found that the superseding indictment
      had nothing to do, did not pertain to Dora Williams, had nothing to
      do with Dora Williams. All I want is this to go on record that I
      spoke that this was a fact, I have it in writing, that is a fact. I have
      also the calendar that is a fact that the findings did not pertain to
      Dora Williams.

ROA, Vol. IV, at 8-9.

                                           10
should be allowed to represent himself.”        McKinley , 58 F.3d at 1481; see also

Godinez v. Moran , 509 U.S. 389, 399-400 (1993) (quoting         Faretta for the

proposition that a defendant choosing self-representation must do so

“competently and intelligently,” but that the defendant’s “technical legal

knowledge” is “not relevant” to the determination of his competency to waive the

right to counsel); Baker , 84 F.3d at 1267 (holding that “a court determination that

an accused lacks expertise or professional capabilities cannot justify denying the

right of self-representation”) (citation omitted). In the same vein, “a defendant’s

mere incompetency in self-representation is not a sufficient basis for inferring a

desire to delay and disrupt the proceedings.”       McKinley , 58 F.3d at 1482.

      Further, even if the district court did believe that Williams was prone to

outbursts or other disruptive behavior, one solution was to appoint standby

counsel – not to prospectively deny Williams her right to self-representation. As

we explained in Padilla , “once a defendant has declared his desire to proceed pro

se, appointment of standby counsel is a preferred, though not mandatory,

practice.” 819 F.2d at 959. The Supreme Court made clear in         Faretta that a trial

court “may – even over objection by the accused – appoint a ‘standby counsel’ to

aid the accused if and when the accused requests help, and to be available to

represent the accused in the event that termination of the defendant’s self-

representation is necessary.” 422 U.S. at 834 n.46;       see also McKaskle , 465 U.S.


                                            11
at 184 (affirming that a trial court can appoint standby counsel “to explain and

enforce basic rules of courtroom protocol”). Once it satisfied itself that

Williams’ request to relinquish the benefits of counsel was “knowing and

intelligent,” the district court could have warned Williams that outbursts in the

courtroom would not be tolerated     2
                                         and that sustained interruptions or other

misconduct would result in the termination of her right to self-representation.

Koch, who was already present and familiar with the case, could have been

appointed as standby counsel to assist Williams or to present Williams’ defense if

she failed to comply with the court’s directive.      Cf. United States v. Brock , 159

F.3d 1077, 1078-81 (7th Cir. 1998) (approving the termination of an

obstructionist defendant’s right to self-representation after the trial court (1)

appointed standby counsel, (2) informed the defendant of the risks involved in

proceeding pro se, and (3) repeatedly cited the defendant for contempt). In sum,




       It appears that the district court did, in fact, issue such a warning to
       2

Williams. On the morning of August 24, the court indicated that it

       wanted to make an observation in view of my experience in this case
       with the defendant, and Mr. Koch has advised that the defendant is
       appearing personally, . . . and that makes me think it important to
       advise Ms. Williams that repeated [interruptions] during the trial will
       not be tolerated. And the court has made arrangements in the event
       that that occurs for the defendant to observe the trial from another
       location.

ROA, Vol. IV, at 6.

                                              12
to paraphrase the Second Circuit,

       [g]iven [Williams’] inexperience with the rules of evidence and with
       courtroom protocol, a certain amount of confusion, delay, even
       irregularity, would be expected. But this sort of “disruption”
       accompanies pro se representation generally; it is a price the Framers
       of the Sixth Amendment . . . thought well worth paying. . . . If, on
       the other hand, the judge thought that [Williams] was likely to
       engage in deliberately disruptive or obstreperous conduct, the
       measure he chose was far too drastic. A potentially unruly,
       disrespectful, or overly passionate pro se may be clearly and firmly
       forewarned that he will lose his right of self-representation if he
       obstructs the trial or creates “a scene.” But the mere possibility of
       such disruption . . . is not a sufficient reason for denying the right of
       self-representation at the start.

O’Reilly v. New York Times Co. , 692 F.2d 863, 869 n.7 (2d Cir. 1982) (citations

omitted).

       Relying in part on our decision in   Nunez , the government also contends

that Williams’ request to proceed pro se was untimely. The government

acknowledges that the defendant in     Nunez did not assert his right to self-

representation until the trial was well underway,   see 877 F.2d at 1478-79, but

argues that “there is nothing in the court’s opinion which indicates that a request

made the morning of trial is timely.” Appellee’s Answer Brief at 18. The

government then notes that almost four years passed between Williams’ arrest

and her request to represent herself. During that time Williams participated in a

trial and an appeal, was committed to the custody of the Attorney General for

treatment, and utilized four different attorneys (plus a fifth for this appeal). The


                                            13
government further notes that Koch filed several motions to withdraw prior to

August 24, 1998, and that none of these motions contained a request for self-

representation.

       Once again, the government’s argument is unpersuasive. The government

cites no authority for the proposition that a request for self-representation made

prior to trial is untimely. Our cases suggest that the contrary is true: If

unequivocally “demanded before trial,” the right to self-representation is

“unqualified.”    See United States v. Beers , 189 F.3d 1297, 1303 (10th Cir. 1999)

(quoting United States v. Mayes , 917 F.2d 457, 462 (10th Cir. 1990)).    3
                                                                              Only

when the right is not asserted prior to trial does it “becom[e] discretionary with

the trial court whether to allow the defendant to proceed pro se.”    Mayes , 917


       3
          Other circuits similarly recognize that a defendant’s ability to assert the
right of self-representation is unqualified when the request is made before trial.
See United States v. Walker , 142 F.3d 103, 108 (2d Cir.) (“If the defendant asks
to proceed pro se before the trial commences this right is absolute, and his
request must be granted.”), cert. denied , 119 S. Ct. 219 (1998); United States v.
Noah , 130 F.3d 490, 497 (1st Cir. 1997) (“[A]lthough a criminal defendant’s
right to serve as his own attorney is absolute if invoked clearly and distinctly
prior to the beginning of his trial, the right of self-representation becomes
qualified once trial is under way.”);     United States v. Webster , 84 F.3d 1056,
1063 n.3 (8th Cir. 1996) (“[T]he right to self-representation is unqualified only if
demanded before trial.”) (citation omitted);      see also Moore v. Calderon , 108 F.3d
261, 264 (9th Cir. 1997) (establishing “a bright-line rule for the timeliness of
Faretta requests: a request is timely if made before the jury is empaneled, unless
it is shown to be a tactic to secure delay”);    Chapman v. United States , 553 F.2d
886, 887 (5th Cir. 1977) (“[A] demand for self-representation must be honored as
timely if made before the jury is selected, absent an affirmative showing that it
was a tactic to secure delay.”).

                                            14
F.2d at 462 (citation omitted). When exercising this discretion, the trial court

must “balance whatever prejudice is alleged by the defense against such factors

as disruption of the proceedings, inconvenience and delay, and possible

confusion of the jury.”   Id. (citation omitted). The trial court should also

consider “the reason for the request [and] the quality of the counsel representing

the party.” Id. (quoting Sapienza v. Vincent , 534 F.2d 1007, 1010 (2d Cir.

1976)). Our decision in   Nunez , in which we affirmed the denial of a request for

self-representation made on the third day of trial, is consistent with these criteria.

See 877 F.2d at 1478-79 (citing   Sapienza and another case in which the

defendant requested permission to represent himself after the jury had been

selected and trial had commenced). In the instant case, there is no indication that

Williams’ request to proceed pro se was merely a tactic to secure delay, and all

parties agree that she attempted to assert her right of self-representation prior to

trial. That request was timely and should have been addressed by the district

court.

         REVERSED and REMANDED for a new trial.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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