                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1405
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

VINCENT TODD,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 03 CR 96—Ronald A. Guzman, Judge.
                          ____________
 ARGUED NOVEMBER 8, 2004—DECIDED SEPTEMBER 7, 2005
                    ____________


  Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
  BAUER, Circuit Judge. A jury convicted defendant-
appellant Vincent Todd of attempting to board an air-
plane with a stun gun in violation of 49 U.S.C. § 46505.
He appeals, arguing that his conviction should be vacated
because he did not knowingly and voluntarily waive his
right to counsel and the prosecution failed to timely produce
evidence that was favorable to his defense. We affirm.




                        I. Background
  On January 27, 2003, Todd was preparing to fly from
2                                              No. 04-1405

Chicago’s Midway International Airport to Los Angeles to
answer criminal charges in a gun possession case stemming
from a prior arrest. An x-ray machine operator at a Midway
Airport security checkpoint noticed on his screen that
Todd’s carry-on bag contained an opaque box. Todd agreed
to step out of line and to submit to a search of his bag. A
security employee opened Todd’s bag and found a box
sandwiched between a bottle a mouthwash and a can of
deodorant which contained a fully activated, 300,000-volt Z-
Force stun gun. Todd was arrested. He waived his Miranda
rights and explained to Special Agent Robert Amann that
he had purchased the stun gun for protection and that he
believed that people—particularly law enforcement
officers—were following him. He also described the stun
gun’s location in his bag and recalled that he had used the
deodorant the night before and the mouthwash earlier that
morning.
  On January 28, 2003, Todd made his initial appearance
before Magistrate Judge Martin C. Ashman. Judge Ashman
advised Todd of his right to counsel and had the prosecutor
state the charge against Todd and its maximum penalty.
Todd acknowledged that he understood. The magistrate
judge then appointed Mary Judge of the Public Defender
Program to represent Todd. Two days later, Judge Ashman
granted Todd’s request for pretrial release but ordered that
he be confined to his father’s home and submit to electronic
monitoring.
  On February 19, 2003, Todd made his first appearance
before District Judge Ronald A. Guzman. The government
sought to revoke Todd’s release because he had tampered
with his electronic monitoring bracelet. The government
also asked the court to order a psychiatric evaluation to
determine whether Todd posed a safety risk. In support
of its request, the government noted that Todd showed signs
of paranoia; in addition to believing that government agents
were following him, he was convinced that his present case
No. 04-1405                                               3

was part of a larger conspiracy against him. Defense
attorney Judge acknowledged Todd’s paranoia but assured
the court that Todd understood the seriousness of his
offense. She also stated that Todd would refuse to partici-
pate in a court-ordered psychiatric evaluation but would
agree to undergo an evaluation arranged by the Public
Defender Program. The government accepted her offer, and
the court revoked Todd’s release pending the results of the
evaluation.
  On February 26, 2003, Todd was evaluated by Michael L.
Fields, Ph.D., of Human Resources Associates in Chicago.
Fields summarized his conclusions in a report, which stated
that Todd understood that bringing a stun gun on an
airplane was illegal and did not appear remorseful about
having done so. The report also indicated that Todd was
“intensely paranoid” and suffered from “what appeared to
be a probable delusional process.” R. at 52. Fields further
noted that Todd’s test results revealed “significant
psychopathology.” Id.
  Todd did not agree with the psychologist’s assessment and
refused to disclose the results of the evaluation to the
district court or the government. This decision put him
at odds with defense counsel Judge, and Todd filed a motion
to have her dismissed. On April 1, 2003, the court granted
Todd’s motion and appointed a second attorney, Gene
Steingold, to take Judge’s place. Steingold represented Todd
for three months. During that time, Todd grew increasingly
suspicious of Steingold’s motives. Steingold, in turn,
complained that Todd’s distrust in him and the court made
working with Todd impossible. Nevertheless, Steingold
assured the court that Todd was competent and understood
the seriousness of the proceedings. The court tried to allay
Todd’s concerns and discourage him from seeking
Steingold’s dismissal, but was unsuccessful. On July 10, the
court issued Todd an ultimatum: He could continue with
Steingold or he could proceed without counsel, but the court
4                                               No. 04-1405

would not appoint a third attorney. Todd chose to proceed
pro se, and the court appointed Steingold standby counsel.
  Todd proceeded without counsel for three weeks until
the next hearing. On August 4, 2003, the district court
reconsidered its decision and offered to appoint a third
attorney. Todd accepted, and the court appointed Gerald
Collins to represent him. Unfortunately, Todd grew suspi-
cious of Collins’ motives, too. When the court inquired into
the problem, Collins explained that Todd’s psychiatric
evaluation indicated that he suffered from extreme para-
noia. Yet, Collins added, Todd understood the charge
pending against him. On September 2, Collins submitted to
the court under seal a copy of Todd’s psychiatric evaluation.
This confirmed Todd’s suspicions about Collins, and Todd
moved to have Collins dismissed. On September 4, the court
granted Todd’s motion and appointed Collins as standby
counsel.
  At Todd’s final pretrial hearing on October 2, 2003, the
district court thoroughly admonished Todd of the disadvan-
tages of proceeding pro se. Undeterred, Todd went to trial
on October 8 with the aid of standby counsel. On October
10, Todd was convicted by a jury and sentenced to one year
in prison and three years’ supervised release. Todd asked
the court to vacate his conviction, claiming, among other
things, that the government had failed to timely produce
copies of papers favorable to his defense. The court denied
his motion for a new trial. Todd timely appealed to this
court.
No. 04-1405                                                         5

                         II. Discussion
  Todd raises two issues on appeal. First, he argues that he
did not knowingly and intentionally waive his right to
counsel. Second, he contends that the government failed to
timely produce medical documents that he had in his
possession when arrested, and that the district court’s
finding to the contrary and subsequent denial of his motion
for a new trial was in error. We review both issues for abuse
of discretion.1 United States v. Avery, 208 F.3d 597, 601 (7th
Cir. 2000); United States v. Asher, 178 F.3d 486, 496 (7th
Cir. 1999).


A. Waiver of Counsel
  Todd argues that he did not knowingly and intelligently
waive his right to counsel because the district court failed
to warn him of the risks of proceeding pro se and failed to
ensure that he understood those risks. He contends that
this violated his Sixth Amendment rights and that we
should vacate his conviction.
  The Sixth Amendment guarantees the right to counsel not
just at trial, but during all “critical stages of the prosecu-
tion.” United States v. Lane, 804 F.2d 79, 81 (7th Cir. 1986)


1
   Both parties cite United States v. Hoskins, 243 F.3d 407, 410
(7th Cir. 2001), for the proposition that the standard of review
for Todd’s waiver claim is de novo. We believe the proper standard
of review is for abuse of discretion. United States v. Avery, 208
F.3d 597, 601 (7th Cir. 2000); see also Faretta v. California, 422
U.S. 806, 812 n. 7 (1974) (noting that the state court of appeals
reviewed whether waiver was knowing and intelligent for abuse
of discretion); United States v. Berkowitz, 927 F.2d 1376, 1383 (7th
Cir. 1991) (recognizing that trial judge is in best position to assess
whether defendant’s waiver was knowing). However, we would
have reached the same result in this case had we reviewed the
district court’s decision de novo.
6                                                 No. 04-1405

(quoting United States v. Wade, 388 U.S. 218, 237 (1967)).
“A critical stage is one where potential substantial prejudice
to defendant’s rights inheres in the . . . confrontation [of the
accused by the prosecution] and where counsel’s abilities
can help avoid that prejudice.” United States v. O’Leary, 856
F.2d 1011, 1014 (7th Cir. 1988) (citing Coleman v. Alabama,
399 U.S. 1, 9 (1970)). It is settled that the indictment and
the arraignment are always starting points in the prosecu-
tion. Lane, 804 F.2d at 82. In fact, the Supreme Court has
recognized that the period from arraignment to trial is
“perhaps the most critical period of the proceedings.” Wade,
388 U.S. at 225 (quoting Powell v. Alabama, 287 U.S. 45, 57
(1932)). Since Todd was arraigned on February 19, 2003, his
Sixth Amendment right to counsel had attached well before
July 10, which was the first time that he elected to proceed
without an attorney.
  A criminal defendant is entitled to waive his right to
counsel and to conduct his own defense when he knowingly
and intentionally elects to do so. Faretta v. California, 422
U.S. 806, 835 (1975). To determine whether a defendant’s
decision to proceed pro se was knowing and informed, we
consider four factors: (1) whether and to what extent the
district court conducted a formal hearing into the defen-
dant’s decision to represent himself; (2) other evidence in
the record that establishes whether the defendant under-
stood the dangers and disadvantages of self-representation;
(3) the background and experience of the defendant; and (4)
the context of the defendant’s decision to waive his right to
counsel. Avery, 208 F.3d at 601. The most reliable way for
a district court to ensure that the defendant has been
adequately warned of the dangers and disadvantages of
self-representation is to conduct a formal inquiry. United
States v. Maya-Gomez, 860 F.2d 706, 733 (7th Cir. 1988).
However, failure to conduct a full inquiry is not necessarily
fatal. “[T]he ultimate question is not what was said or not
said to the defendant but rather whether he in fact made a
No. 04-1405                                                   7

knowing and informed waiver of counsel.” Id. at 733.
  The first factor that we consider is whether the dis-
trict court made a formal inquiry into Todd’s decision to
proceed pro se. District judges are not expected to give “a
hypothetical lecture on criminal law.” Moya-Gomez, 860
F.2d at 732. However, the court should explore whether the
defendant realizes the difficulties he will encounter in
acting as his own attorney and advise the defendant that
proceeding pro se is unwise. Id. It is not enough for the
court merely to confirm that it is the defendant’s wish to
represent himself; rather, the court must impress upon
the defendant the disadvantages of self-representation.
Id. at 734.
  Todd first elected to proceed without counsel on July 10,
2003, and did so again on September 4. Both times the
district court limited its inquiry to whether Todd under-
stood that the court would appoint no further attorneys.
These inquiries were inadequate because the court failed to
probe whether Todd recognized the disadvantages of
proceeding pro se. Moya-Gomez, 860 F.2d at 734. When the
issue of representation reemerged on October 2, several
days before trial, the court thoroughly admonished Todd
of the dangers of proceeding without counsel.2 Pretrial
Tr. 10.02.03 at 22-25. Yet, the adequacy of the October 2
warning did not compensate for the court’s failure to
properly warn Todd before allowing him to proceed pro se
for two, brief periods—from July 10 through August 4 and
from September 4 through October 2—prior to trial. This


2
  Todd argues that the court’s October 2 warning was pro forma
and also encouraged him to proceed pro se. Since this factor
weighs in Todd’s favor, we choose not to address his claims. We
will say, however, that the court’s lengthy warning was neither
inadequate nor improperly suggestive. What is more, the
court previously warned Todd against proceeding without counsel.
Pretrial Tr. 6.20.03 at 6-7.
8                                                 No. 04-1405

weighs against finding that Todd’s waivers of his right to
counsel during critical pretrial proceedings were knowing
and intelligent. United States v. Bell, 901 F.2d 574, 578 (7th
Cir. 1990).
   The second factor that we consider is whether there is
other evidence that Todd understood the dangers and
disadvantages of self-representation. We believe there
is. Some of this evidence came directly from statements that
Todd made. At his initial court appearance, Todd acknowl-
edged that he understood the charge against him and the
penalties it carried. Pretrial Tr. 1.28.03 at 4. Todd identifies
occasions when he told the court that he did not understand
the charge or when he underestimated the potential
penalties, but those comments were contradicted by later
statements. For example, on July 30, 2003, Todd confirmed
that he had in fact received the “accurate charges, which
meant the indictment and everything that went with it.”
Pretrial Tr. 7.30.03 at 4. Further, Todd demonstrated his
understanding of the charge during his opening remarks by
declaring himself “not guilty of knowing that the stun gun
was in his bag while trying to board an aircraft.” Trial Tr.
at 17. The record reveals that the inconsistencies Todd
highlights were more likely caused by his obstreperousness
than any mental incapacity. In addition, when Todd first
elected to proceed pro se, he acknowledged that his lack of
skills would place him at a disadvantage: “[Steingold is] not
representing me. I’d rather lose it myself.” Pretrial Tr.
7.10.03 at 5. This was another indication that Todd realized
he was taking a risk by representing himself. Bell, 901 F.2d
at 578.
  Furthermore, Judge Guzman and Todd’s three attor-
neys all believed that Todd recognized that the proceed-
ings were serious. Defense attorney Judge told the court
that although Todd “has some mental health paranoid
kind of issues,” he is capable of understanding “the serious-
ness of the offense, he understands the consequences of his
No. 04-1405                                                 9

behavior . . . .” Pretrial Tr. 2.19.03 at 10. Defense attorney
Steingold stated that “while my client has mental problems,
I think he understands the proceedings, and . . . I believe
he’s competent to stand trial, and I believe he was fit or
sane at the time this happened.” Pretrial Tr. 6.20.03 at 11-
12. Similarly, defense attorney Collins acknowledged that
although Todd’s psychiatric evaluation indicated that Todd
suffered from extreme paranoia, “based on my conversations
with him, he certainly has an understanding of the charges
and he’s able to cooperate with me.” Pretrial Tr. 8.18.03 at
9. In addition, Judge Guzman was impressed by Todd’s
understanding of how the events of September 11, 2001,
made the charge against him more serious than it otherwise
might have been. Pretrial Tr. 6.20.03 at 14.
  Todd claims that, regardless of what his attorneys
and the judge believed, the district court erred by not
considering the results of his psychiatric evaluation. This
argument is puzzling because it signifies a 180-degree turn
from the position Todd staunchly held throughout the
pretrial and trial proceedings. The court inquired about the
evaluation at least six times prior to trial. Todd adamantly
refused to disclose the results of his evaluation because he
believed that its conclusions were wrong and would compro-
mise his defense. Pretrial Tr. 9.4.03 at 12. In fact, Todd
prohibited his attorneys from even mentioning the evalua-
tion. The only reason why the psychiatric evaluation
appears in the record is because defense attorney Collins
submitted a copy to the court, an action that Todd viewed
as evidence of betrayal. The court should not be held to
blame for Todd’s intransigence.
   Moreover, though the results of Todd’s psychiatric
evaluation are disquieting, they do not demonstrate that his
waivers were not knowing or voluntary. The psychologist
who authored the report stated that Todd “knew it was
illegal, or at least inappropriate to have a weapon with him
10                                              No. 04-1405

going on to a plane, and he did appear to be somewhat
dismayed that he made such a foolish error.” R. at 52. The
psychologist was also understandably alarmed about Todd’s
extreme paranoia. Judge Guzman and Todd’s attorneys
were concerned, too, but they reached the unanimous
conclusion that Todd was capable of understanding the
seriousness of the proceedings. See United States v. Hill,
252 F.3d 919, 925 (7th Cir. 2001) (observing that any person
competent to stand trial is able to waive counsel). We find
that their observations carry more weight than those of the
psychologist, who formed his conclusions after observing
Todd for only a day. Todd argues that his evaluation should
nonetheless have prompted the court to engage in the type
of reality testing that we advocated in United States v.
Sandles, 23 F.3d 1121, 1127 (7th Cir. 1994). We disagree. In
Sandles, the defendant had declared he would present an
insanity defense at trial; Todd, by contrast, maintained
throughout the proceedings that he was competent, and his
attorneys and the judge ultimately agreed. This weighs
heavily in favor of finding that Todd’s waiver was kno-
wing and intelligent.
  The third factor that we consider is Todd’s background
and experience. “In this context, background and experience
includes educational achievements, prior experience with
the legal system (including prior pro se representation), and
performance at trial in the case at bar.” Sandles, 23 F.3d at
1128-29 (internal quotes omitted). The district court did not
inquire into Todd’s background, but that error was not fatal.
Moya-Gomez, 860 F.2d at 736. Although the record shows
that Todd has only a tenth-grade education, he demon-
strated at trial that he could represent himself. For exam-
ple, Todd made motions, offered evidence that was admit-
ted, conducted cross-examinations, and tried to impeach a
witness. The record also indicates that Todd had substan-
tial experience with the judicial system; he had been
arrested over a dozen times, with two prior convictions (one
No. 04-1405                                                11

for contempt of court and one for assault and battery),
and—significantly—had at least one prior weapons charge.
Despite the lack of evidence that Todd represented himself
at those proceedings, we have held that a defendant’s prior
experience with the judicial system tends to show that he
understood that the charge against him was serious and
that he was accepting a risk by representing himself.
United States v. Egwaoje, 335 F.3d 579, 585-86 (7th Cir.
2003). Therefore, this factor weighs in favor of finding a
valid waiver, as well.
  The fourth factor that we consider is the context of Todd’s
decision to proceed pro se. We have held that a defendant
who waives his right to counsel for strategic reasons tends
to do so knowingly. See Bell, 901 F.2d at 579 (finding that
a defendant’s tactical decision to proceed pro se as a result
of his attorney’s unwillingness to present an alibi defense
supports the finding of a knowing waiver). Todd chose to
represent himself because he believed that his court-
appointed attorneys would employ a weak and ineffective
defense. He baldly stated that he did not trust court-
appointed attorneys: “I don’t want a court-appointed
attorney. I do not trust the courts.” Pretrial Tr. 10.2.03 at
25. In addition, we have found that although standby
counsel is no substitute for actual counsel, a defendant’s use
of standby counsel shows an appreciation for the difficulties
of self-representation. Sandles, 23 F.3d at 1128. Todd
deferred several times at trial to his standby counsel on
matters pertaining to objections and jury instructions.
Thus, this factor also weighs in favor of finding a valid
waiver.
  Although the district court should have conducted a
formal inquiry into Todd’s understanding of the risks of
proceeding without counsel when he first waived his right
to an attorney, the error was not fatal because the remain-
ing factors weigh in favor of finding a knowing and intelli-
gent waiver. Bell, 901 F.2d at 579; Moya-Gomez, 860 F.2d
12                                             No. 04-1405

at 738-39. Therefore, we agree with the court that Todd
understood the risks of proceeding pro se and nonetheless
knowingly and intelligently waived his right to counsel.


B. The Brady Claim
  Todd also contends that his conviction should be vacated
because the government did not timely produce records
favorable to his defense. On October 2, 2003, the district
court ordered the government to produce documents that
were taken from Todd upon his arrest. These materials
included a report by the Department of Veterans Affairs
that showed Todd suffered from memory loss as a result of a
head injury sustained while serving in the United States
Army. In its order denying Todd’s motion for a new trial,
the court found that the government had hand-delivered
copies of the requested materials to Todd’s attention at the
Metropolitan Correction Center and to standby defense
attorney Collins on August 6, two days before the start of
trial. United States v. Todd, No. 03 CR 96, 2003 WL
22802375, at *1 (N.D.Ill. Nov. 25, 2003). The court
also found that on the morning of August 8, the first day of
trial, Collins set copies of the report on his table, which
made them readily available to Todd. Id. Todd maintains
that he did not receive the materials until the evening
of August 10, by which time the case had been submitted to
the jury. He contends that even if he had access to the
documents on August 6, we should still consider them
suppressed because the government did not provide Todd
with sufficient time to incorporate the materials in his
defense.
  Brady v. Maryland, 373 U.S. 83 (1963), prohibits govern-
ment prosecutors from withholding evidence that is favor-
able to the defense. Id. at 87. The suppression of such
evidence deprives the defendant of a fair trial and thus
violates due process. Id. To prevail on a Brady claim, a
defendant must establish that: (1) the government sup-
No. 04-1405                                                 13

pressed the evidence; (2) the suppressed evidence was
favorable to the defendant; and (3) the suppressed evidence
was material to an issue at trial. United States v. O’Hare,
301 F.3d 563, 569 (7th Cir. 2002). Evidence is suppressed
for Brady purposes when (1) the prosecution failed to
disclose the evidence in time for the defendant to make use
of it, and (2) the evidence was not otherwise available to the
defendant through the exercise of reasonable diligence. Id.
(citing Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001)).
  The district court’s decision that the government did
not suppress Todd’s reports was not an abuse of discre-
tion. Because Todd was intimately familiar with the
information contained in the documents in question, he
should have been able to utilize that information in his
defense when the documents were delivered two days before
trial. Even if we assume that Todd did not have access to
the documents until the morning of trial, he still could have
quickly incorporated them into his defense because he was
familiar with the material. Had Todd needed the informa-
tion sooner, he could have subpoenaed the Department of
Veterans Affairs, which he had done previously to obtain
other materials. Pretrial Tr. 6.5.03 at 2. Moreover, the fact
that Todd gave no indication at trial that he had not
received the materials was yet another indication that they
were not suppressed for Brady purposes. R. at 86.
  More importantly, Todd has not demonstrated that the
reports were material. Evidence is material for Brady
purposes “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley, 514
U.S. 419, 433-34 (1995). Todd maintains that this evidence
was material because it would have shown that he did not
knowingly attempt to bring a stun gun though airport
security, but rather forgot that it was in his carry-on bag.
We disagree that the reports would have made a significant
difference. Todd told the jury about his disability in both his
14                                             No. 04-1405

opening statement and closing remarks. Trial Tr. at 16-17,
239. Apart from those comments, he chose not to testify or
present evidence on the issue. Thus, our confidence in the
outcome of Todd’s trial is not shaken by the documents’
exclusion.


                    III. Conclusion
  For the foregoing reasons, we AFFIRM Todd’s convic-
tion and the district court’s denial of his motion for a new
trial.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—9-7-05
