NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2997
UNITED STATES OF AMERICA
v.
CURT D. KOSOW,
Appellant
On Appeal from the United States District Court
for the Westem District of Pennsylvania
(D.C. No. 06-cr-00228)
District Judge: Honorable Arthur J. Schwab
Submitted Under Third Circuit LAR 34.l(a)
October l9, 2010
Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Cz`rcuz`t Jua'ges.
(Filed: November 10, 20l0)
OPINION OF THE COURT
HARDIMAN, Cz`rcuz`t Jua'ge.
A jury convicted Cu1t Kosow of eight counts of various tax-related offenses.
Kosow appeals his judgment of conviction, claiming that the District Court erred when it

forced him to proceed to trial pro se after holding that Kosow had waived by conduct his
Sixth Amendment right to an attorney. We will affinn.
l.
The facts of Kosow’s underlying offenses are not relevant to the instant appeal.
Because we write for the pa1ties, who are familiar with the procedural history of the case,
we will recount only the facts necessary for our analysis.
The District Court concluded that Kosow waived his right to counsel by repeatedly
hiring and firing attorneys, and by failing in the months leading up to his trial to either
retain yet another private attorney or to submit documentation establishing his eligibility
for a court-appointed attorney. More specifically, the DistrictCou1t found that Kosow
was attempting to delay his trial by repeatedly hiring new attomeys, who would request
and receive a continuance of the trial date in order to become familiar with the evidence
in the case. Sho1tly thereafter, Kosow would fire the attorney and hire another one,
resta1ting the entire process and delaying the trial further.
ln the course of granting multiple continuances of Kosow’s trial date to
accommodate new eounsel, the District Court repeatedly warned Kosow that such
continuances would not be granted indefinitely, that his serial firings of attorneys
amounted to a waiver of his right to counsel, and that it was Kosow’s responsibility to
obtain private counsel or establish his eligibility for appointed counsel far enough in
advance of the trial date to permit adequate preparation Kosow failed to do either, filing
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a financial affidavit in support of a request for appointed counsel only a week before his
trial date. Realizing that appointing a lavvyer to represent Kosow would result in another
substantial delay, the District Court denied his request and instead appointed standby
counsel to assist Kosow in proceeding pro se.
The jury convicted Kosow on eight of nine counts, and he now appeals, claiming
that the District Court erred in finding that he waived by conduct his right to an attomey.1
II.
We cautioned long ago that "[o]nce a defendant has been wamed that he will lose
his attomey if he engages in dilatory tactics, any misconduct thereafter may be treated as
an implied request to proceed pro se and, thus, as a waiver of the right to counsel."
United States v. Gola’berg, 67 F.3d lO92, llOO (3d Cir. l995) (citations omitted).
Because "it is tantamount to a claim of an ineffective waiver of a constitutional right,"
when a defendant complains that a district court has improperly found waiver by conduct,
we engage in de novo review. Id. at lO97.
"The Supreme Court has made clear that a waiver of the right to counsel must be
knowing, voluntary and intelligent." Ia’. at llOO (citing Jo/anson v. Zerbst, 304 U.S. 458,
464 (l93 8)). Thus, "to the extent that the defendant’s actions are examined under the
doctrine of ‘waiver,"’-including waiver by conduct~"there can be no valid waiver of
1 The District Court had jurisdiction pursuant to 18 U.S.C. § 323 l. We have
jurisdiction under 28 U.S.C. § l29l.
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the Sixth Amendment right to counsel unless the defendant also receives Faretto
warnings." Goldberg, 67 F.3d at l l00.
In Faretta v. Calzfornz`a, 422 U.S. 806 (l975), the Supreme Court made clear that a
defendant choosing to represent himself "need not himself have the skill and experience
of a lawyer," but "should be made aware of the dangers and disadvantages of
self-representation, so that the record will establish that he knows what he is doing and
his choice is made with eyes open." 1a'. at 835 (citations omitted) (internal quotation
marks omitted). We have stated that "there is no talismanic formula" for a Faretta
inquiry, but have nevertheless articulated fourteen questions as a "useful framework" for
such colloquies. United States v. Peppers, 302 F.3d l20, 135-37 (3d. Cir. 2002). These
questions are intended to gauge a defendant’s understanding of the challenges and risks
involved in representing himself pro se, and inquire into such areas as his familiarity with
the Federal Rules of Evidence, the Federal Rules of Criminal Procedure, the nature of the
crimes he is charged with, the possible penalties he faces, and the fact that an attomey
would be more skilled in identifying defenses, presenting evidence, and generally
litigating the case.
Here, after Kosow’s third post-indictment attomey withdrew, the District Court
noted that no other attorney had appeared, and that Kosow would therefore be
representing himself The District Court further warned Kosow that his trial date would
not be postponed again, and that his failure to retain a new attomey in a timely fashion
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would require him to proceed pro se. The District Court then asked Kosow almost all of
the fourteen Peppers questions, omitting only an inquiry whether Kosow understood that,
if convicted, he could be sentenced consecutively on each of the charges.2 Kosow’s
answers revealed that, although he had not immersed himself in the law goveming his
case and trial, he was generally aware of its existence and understood the need to
familiarize himself with it. Moreover, his answers demonstrate an awareness of the
advantages of proceeding with an attomey. We find this substantial compliance with
Peppers to be more than adequate to satisfy Faretta and Gola’berg.
Kosow argues that the District Court erred by not explaining the purpose of the
colloquy to him. Even assuming arguendo that this was required, the District Court
plainly stated at the beginning of the colloquy that "I have a couple questions to ask you
relating to your representing yourself." App. 97.
Kosow also complains that when, during the colloquy, he stated that he was seeing
a psychiatrist, the Court did not inquire as to the reasons for these visits. We agree that a
more thorough examination of this issue would have been desirable. Nevertheless, our
review of the record leads us to conclude that Kosow’s responses to the District Court’s
questions were lucid and manifested full comprehension of what the District Court was
2 In Peppers we suggested that a court ask a defendant whether he has previously
represented himself in a criminal action. Ia’. at l36. The District Court here asked Kosow
whether he had ever seen a federal trial or sentencing hearing On the facts of this case,
we find this to be an acceptable substitution.
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saying. More importantly, the District Court later revisited the issue of Kosow’s mental
state, obtaining a psychological examination of Kosow and holding a full hearing on the
topic before concluding in a written opinion that Kosow was competent both to stand trial
and to represent himself. Accordingly, the District Court did not commit reversible error
when it failed initially to inquire about Kosow’s psychiatric treatment.
When, as part of the Peppers colloquy, the District Court urged Kosow not to
represent himself, Kosow replied, "I appreciate it, and hopefully I won’t represent myself
for a long period of time." App. l22-23. But Kosow never retained another private
attomey to enter a general appearance in the case,3 and did not attempt to demonstrate his
eligibility for an appointed lawyer until approximately a week before trial. Having been
duly warned of the consequences of dilatory and vexatious actions, Kosow cannot now
complain of having to suffer them.
III.
Kosow contends that his conduct following the District Court’s issuance of the
Faretta warnings was not so outrageous or dilatory as to constitute a "forfeiture" of his
right to counsel He cites Goldberg for the proposition that a defendant can forfeit his
right to an attomey only through "extremely dilatory conduct," id. at ll0l , or "extremely
3 Kosow did retain private counsel solely to defend him in bond revocation
proceedings. At the bond revocation hearing, this attomey informed the court that he
hoped to enter a general appearance, "but there’s just a few matters l need to take care of
in the interim." Supp. App. 2l(). No general appearance was ever entered, despite
Kosow’s later insistence that this attomey should be required to represent him.
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serious misconduct," z`a’. at ll02. But as the Govemment points out, in Gola’berg, we
carefully distinguished between pure forfeiture, which "results in the loss of a right
regardless of the defendant’s knowledge thereof and irrespective of whether the defendant
intended to relinquish the right," and "waiver by conduct," which "combines elements of
waiver and forfeiture" and is brought about by a defendant’s conduct only after the
defendant has been warned that such conduct will result in the loss of his Sixth
Amendment rights. Ia’. at ll00. Because Kosow was so warned, "a ‘waiver by conduct’
could be based on conduct less severe than that sufficient to warrant a forfeiture." Ia’. at
ll0l. The District Court explicitly found that waiver by conduct, and not pure forfeiture,
applied in Kosow’s case.
Kosow’s conduct is similar to that of the defendant in United States v. Thomas,
357 F.3d 357 (3d Cir. 2004), in which we affirmed a District Court’s finding of waiver by
conduct. There, the defendant received, and fired or alienated, four consecutive
appointed attomeys. Ia’. at 359-62. On allowing the third attomey to withdraw and
appointing the fourth, the district court explained to Thomas that making any further
"unreasonable demands" of his attorneys “may constitute a waiver of [his] right to
counsel." Ia’. at 360 (alteration in original) (citation omitted) (intemal quotation marks
omitted). After Thomas had a falling out with his fourth attorney, "[t]he court interpreted
Thomas’ actions as . . . a request to represent himself at trial, with full knowledge of the
risks and difficulties he will confront pro se." Ia’. at 361 (citation omitted) (intemal
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quotation marks omitted). We concluded that Thomas’s misconduct rose not only to the
level of waiver by conduct, but also to the higher level required for outright forfeiture of
his attomey.
Like Thomas, Kosow fired or alienated a long succession of lawyers-two after he
had been wamed by the District Court that he would waive his right to counsel upon
repeated misconduct, and several more before.4 Although Kosow requested court-
appointed counsel on May 9, 2007, he waited until five days before trial to tile the
necessary paperwork to attain one. We have no hesitation in holding this misconduct
severe enough to establish waiver by conduct.
We will affirm the judgment of the District Court
4 Kosow maintains that the District Court was not aware of his pre-indictment
parade of attomeys, and that in any event they did not delay the proceedings. But when
Kosow fired his first post-indictment attomey, the Government informed the court that
prior to the indictment, "Mr. Kosow retained counsel; many such individuals in a row.
We engaged in negotiations . . . with no fewer than five plus attomeys, prior to the retum
of the indictment." Supp. App. l43-44.
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