                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2006

USA v. Jones
Precedential or Non-Precedential: Precedential

Docket No. 05-3001




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                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 05-3001


              UNITED STATES OF AMERICA

                               v.

                  CHRISTOPHER D. JONES

                                    Appellant


          Appeal from the United States District Court
            for the Middle District of Pennsylvania
           (D.C. Criminal Action No. 03-cr-00201)
           District Judge: Honorable Malcolm Muir


                    Argued April 21, 2006

     Before: SLOVITER and AMBRO, Circuit Judges,
               and DuBOIS,* District Judge



      *
        Honorable Jan E. DuBois, Senior District Judge for the
Eastern District of Pennsylvania, sitting by designation.
                 (Opinion filed June 28, 2006)

Stephen F. Becker, Esquire (Argued)
Shapiro & Becker
114 Market Street
Lewisburg, PA 17837

       Counsel for Appellant
Thomas A. Marino
  United State Attorney
George J. Rocktashel (Argued)
  Assistant United States Attorney
Office of the United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701

       Counsel for Appellee


                OPINION OF THE COURT


AMBRO, Circuit Judge

       Christopher D. Jones appeals his drug conviction and
sentence entered in the United States District Court for the
Middle District of Pennsylvania. He contends, inter alia, that his
decision to proceed pro se was not knowing, intelligent, and
voluntary. We agree, vacate his conviction, and remand to the
District Court for a new trial.


                                2
              I. Facts and Procedural History

       A.     Background

       In July 2003, Pennsylvania State Trooper John Latin
observed Jones driving at over 80 miles per hour on an interstate
highway. Trooper Latin attempted to get Jones to stop, but he
refused to comply and led Latin and other officers on a 14-mile
chase. During the chase, officers observed Jones throw a
powdery substance and a brown paper bag out the window of his
car. The officers eventually forced Jones off the road, and when
he got out of his car they observed white powder fall from his
lap. They also observed white powder in the interior of the car,
discovered it at the various places along the highway where
Jones threw items out the window, and after obtaining a search
warrant, recovered hundreds of small plastic baggies and an
electronic scale from the car. A forensic examiner later
determined that the white powder was cocaine, with a total
weight of slightly more than 100 grams.

       B.     Waiver of Right to Counsel

      Jones was indicted on a single count of possession of
cocaine with intent to distribute in violation of 21 U.S.C. §
841(a)(1). He pled not guilty and the District Court appointed
counsel. In December 2003, Jones wrote a letter to the District
Court Judge requesting new counsel. He contended that his
appointed counsel had not communicated with him about the


                               3
case, misrepresented the charges and possible sentence, and
refused to file motions Jones wanted him to file. In January
2004, the District Court held an ex parte hearing at which Jones
stated that he did not wish his appointed counsel to be removed.
Two months later, however, Jones renewed his objections, and
his appointed counsel filed a request to be relieved of his duties.
The District Court granted this request and appointed the
Federal Defender’s Office to represent Jones, which in turn
designated attorney Edward Rymsza.

       Rymsza subsequently filed a motion to withdraw as
counsel, and at an ex parte hearing in August 2004, he informed
the Court that Jones wished to proceed pro se. Rymsza stated
that the attorney-client relationship had been “rocky” and that
Jones had repeatedly questioned Rymsza’s dedication to the
case. Rymsza also noted that Jones wanted to pursue trial
strategies he could not condone, and that Jones had been “very
adamant in his desire to proceed pro se or not have me on the
case.” The following colloquy then occurred between the Court
and Jones:

                     THE COURT: [D]o you
              wish Mr. Rymsza to continue to
              represent you in this case?

                     DEFENDANT JONES: No,
              I don’t.



                                4
       THE COURT: Do you wish
to proceed as your own attorney?

       DEFENDANT JONES:
Either that or be appointed another
counsel.

        THE COURT: I’m asking
you whether you wish to proceed
with your own attorney. You have
already had two attorneys in this
case, and we just simply can’t keep
appointing counsel after counsel
after counsel in a given case.

      Do you wish to proceed on
your own as your own attorney?

      DEFENDANT JONES: If
the Court would not allow me to
obtain new counsel, then yes, I
would like to proceed pro se.

        THE COURT: Well, I’m
going to ask you questions about
whether or not you should represent
yourself and what your knowledge
of the law is and that kind of thing,


                 5
but I’ll make the decision after I
hear your views later today or
possibly tomorrow as to whether
we will appoint new counsel for
you.

      ...

      THE COURT: All right,
now have you ever studied law?

      DEFENDANT JONES: No.

      THE COURT: Do you
understand that if you represent
yourself you are completely on
your own?

       DEFENDANT JONES: I
believe that would be the case. I
would ask that the counsel [sic]
appoint someone to sit in for legal
advice in case I want to be cross
examined — or examined, that
somebody would be there to
question me.




                6
       THE COURT: Well, we do
not appoint counsel in a stand-by
position to give you legal advice.
The only reason we appoint
counsel, if you try this case
yourself, is that if the situation gets
so bad that we no longer can permit
you to try it yourself.

        Assume you violate some
rule or something like that or some
order. Then stand-by counsel
would come in and take over the
case. But stand-by counsel is not
appointed to give you advice. Do
you understand that?

       DEFENDANT             JONES:
Yes.

       THE COURT: All right.
Do you understand that if you
represent yourself you would be
responsible for the presentation of
your case, and you must abide by
the rules of evidence at the trial?
Do you understand that?



                  7
       DEFENDANT          JONES:
Yes.

       THE COURT: Are you
familiar with the Federal Rules of
Evidence and Criminal Procedure?

     DEFENDANT            JONES:
Somewhat I am, yes.

     THE COURT:          You are
somewhat?

     DEFENDANT            JONES:
Somewhat, yes.

       THE COURT: Do you still
desire to represent yourself rather
than have Mr. Rymsza — Mr.
Rymsza represent you?

       DEFENDANT          JONES:
Yes.

       THE COURT: Is your
decision entirely voluntary?

       DEFENDANT          JONES:


                8
              Yes.

        The Court then asked Rymsza if, in his opinion, Jones’
decision to proceed pro se was knowing, intelligent, and
voluntary, and Rymsza stated that it was. The Court concluded
that Jones’ waiver of his right to counsel was indeed knowing,
intelligent, and voluntary, and granted Rymsza’s motion to
withdraw.

        After a short recess, the Court informed Jones that it had
decided to appoint new counsel, but noted that this was “the
third attorney” he would have and “if you disagree with the next
one, we will not appoint additional counsel for you.” The Court
also informed Jones that new counsel could not be ready to try
the case before October 2004, and asked if that was acceptable.
Jones replied:

                     DEFENDANT JONES:
              Your Honor, . . . there would be no
              way to proceed pro se with counsel
              that could directly examine me if I
              was going to want to testify on my
              own behalf.

                    THE COURT:          I don’t
              understand what you’re asking me.
              You want to act as your attorney
              except you want some attorney to


                                9
examine you when you are on the
stand?

       DEFENDANT          JONES:
Yes.

        THE COURT: We don’t
operate under those — like that. If
you represent yourself, you can get
on the stand and give your story.
So we will only appoint new
counsel for you after this third one
to act as stand-by counsel.

      Do you — do you object if
we put this case on the October
list?

      DEFENDANT JONES: No.
Your Honor, I would rather
proceed pro se, but I would — I
would accept that if it was on the
October list.

       THE COURT: You mean
you would rather proceed pro se
despite the disadvantages of



                10
              representing yourself . . . than have
              us appoint new counsel for you? Is
              that what you’re saying?

                     DEFENDANT            JONES:
              Yes.

       As a result of this colloquy, the District Court concluded
that Jones “said he wants to proceed pro se and I — I think he
seems capable — certainly capable of doing that. And I will
make a finding that he knowingly, intelligently and voluntarily
waives his right to counsel and desires to proceed pro se.”

       C.     Conviction and Sentence

       Jones represented himself and was convicted. The
District Court appointed new counsel to represent Jones at
sentencing. Before trial, the Government filed an information
pursuant to 21 U.S.C. § 851(a) stating that it intended to seek an
enhanced sentence based on two prior felony drug convictions.
Under U.S.S.G. § 4B1.1, these convictions resulted in a “career
offender” designation that increased Jones’ Sentencing
Guidelines range from 57-71 months to 262-327 months in
prison. Jones filed a motion for a downward departure on the
ground that his designation as a career offender overrepresented
his criminal history. The District Court denied this motion and
sentenced Jones to 264 months in prison, followed by 6 years of
supervised release and a $100 special assessment. Jones


                               11
appealed.1

       D.     Appeal

        Jones raises several issues on his appeal. First, he
contends that his decision to proceed pro se was not knowing,
intelligent, and voluntary, and that the District Court failed to
conduct the proper inquiry to assure that the waiver of his right
to counsel was effective. Second, he argues that the District
Court erred in refusing to grant a mistrial based on two alleged
trial errors: (1) Trooper Latin’s testimony (upon cross-
examination by Jones) that the arresting officers knew Jones had
a criminal record; and (2) two statements by the prosecutor that,
in Jones’ view, were adverse comments on his refusal to testify
in his own defense. Third, he contends that his sentence (as
enhanced by the § 4B1.1 career offender provision) is
unreasonable because it does not comport with the sentencing
factors set forth in 18 U.S.C. § 3553(a). Finally, he asserts that
because his prior convictions resulted in an enhanced statutory
maximum under 21 U.S.C. § 841(b)(1)(C), the Government
should have charged them in the indictment and proved their
existence to the jury beyond a reasonable doubt.




       1
          The District Court had subject matter jurisdiction over
this case pursuant to 18 U.S.C. § 3231, since it concerns
offenses against the laws of the United States. We have
jurisdiction over the appeal under 28 U.S.C. § 1291.

                               12
       As explained below, Jones’ waiver of his right to counsel
was ineffective, and thus we must vacate his conviction and
remand to the District Court for a new trial. We have no cause,
therefore, to reach any of Jones’ other challenges to his
conviction and sentence.

               II. Waiver of Right to Counsel

        It is well established that the Sixth Amendment protects
a defendant’s right to have counsel for his defense, and his right
to refuse counsel and represent himself. Faretta v. California,
422 U.S. 806, 814, 820 (1975); United States v. Stubbs, 281
F.3d 109, 116 (3d Cir. 2002). A defendant who wishes to
represent himself “must be allowed to make that choice, even if
it works ultimately to his own detriment.” United States v.
Peppers, 302 F.3d 120, 130 (3d Cir. 2002) (internal quotation
marks omitted). Before deciding a defendant’s request to
proceed pro se, however, “the trial court [bears] the weighty
responsibility of conducting a sufficiently penetrating inquiry to
satisfy itself that the defendant’s waiver of counsel is knowing
and understanding as well as voluntary.” Id. at 130-31; Stubbs,
281 F.3d at 118 (same); see also United States v. Welty, 674
F.2d 185, 187 (3d Cir. 1982) (“Since the decision to proceed pro
se involves a waiver of the defendant’s sixth amendment right
to counsel, the district court . . . has the responsibility of
ensuring that any decision by the defendant to represent himself
is intelligently and competently made.”).



                               13
        In conducting this inquiry, “[p]erfunctory questioning is
not sufficient.” Welty, 674 F.2d at 187. Rather, a District Court
must engage in a “penetrating and comprehensive examination
of all the circumstances.” Peppers, 302 F.3d at 131 (internal
quotation marks omitted); Stubbs, 281 F.3d at 118 (same);
Welty, 674 F.2d at 189 (same).2 The purpose of the inquiry is
to establish that the defendant: (1) has “clearly and


       2
          A “penetrating and comprehensive examination” of the
defendant’s request to proceed pro se is not required in every
court. See, e.g., Ferguson v. Bruton, 217 F.3d 983, 985 (8th Cir.
2000) (per curiam) (holding that “a specific warning on the
record of the dangers and disadvantages of self-representation
is not an absolute necessity in every case if the record shows
that the defendant had this required knowledge from other
sources” (internal quotation marks omitted)); United States v.
Singleton, 107 F.3d 1091, 1098 (4th Cir. 1997) (noting that a
District Court’s “failure to conduct a formal inquiry [is not] per
se reversible error. . . . [T]he trial judge is merely required to
determine the sufficiency of the waiver from the record as a
whole rather than from a formalistic, deliberate, and searching
inquiry.” (internal quotation marks omitted)); see also United
States v. Bell, 901 F.2d 574, 577 n.2 (7th Cir. 1990) (noting “a
split in the circuits over the extent of inquiry necessary before
allowing an accused to waive his right to counsel,” and citing
our decision in Welty as among those cases that “require either
a ‘searching inquiry’ or a special hearing to ensure that the
defendant understands the dangers of proceeding pro se” (citing
McDowell v. United States, 484 U.S. 980, 980 (1987) (White,
J., dissenting from denial of certiorari))).

                               14
unequivocally” asserted his desire to represent himself; (2)
“understands the nature of the charges, the range of possible
punishments, potential defenses, technical problems that [he]
may encounter, and any other facts important to a general
understanding of the risks involved”; and (3) is competent to
stand trial. Peppers, 302 F.3d at 132, 134.3 To satisfy these
criteria, the defendant must be “specific[ally] forewarn[ed] of
the risks that foregoing counsel’s trained representation entails,”
id. at 133, and he must 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.’” Faretta, 422 U.S. at 835; Stubbs, 281 F.3d at
118 (same).

        There is, of course, “no talismanic formula for the
[district] court’s inquiry.” Peppers, 302 F.3d at 135; see Welty,
674 F.2d at 189 (noting that “we do not require a detailed listing
of advice similar to that mandated for guilty plea proceedings
conducted pursuant to Rule 1 of the Federal Rules of Criminal
Procedure”). Nonetheless, in addition to the basic inquiry noted
above, our Court has noted that a district court must inform a
defendant who wishes to proceed pro se that: “he will have to
conduct his defense in accordance with the Federal Rules of
Evidence and Criminal Procedure, rules with which he may not
be familiar; that the defendant may be hampered in presenting
his best defense by his lack of knowledge of the law; and that


       3
           Jones’ competence to stand trial is not at issue.

                                 15
the effectiveness of his defense may well be diminished by his
dual role as attorney and accused.” Welty, 674 F.2d at 188.
Indeed, in Peppers we set out model questions derived from the
Federal Judicial Center’s Bench Book for United States District
Court Judges, which provide a “useful framework” in deciding
whether a defendant knowingly and voluntarily wishes to
proceed pro se. 302 F.3d at 136-37.4


      4
          These questions are as follows:

              1. Have you ever studied law?
              2. Have you ever represented
              yourself in a criminal action?
              3. Do you understand that you are
              charged with these crimes: [state
              the crimes with which the
              defendant is charged]?
              4. Do you understand that the U.S.
              Sentencing Commission has issued
              sentencing guidelines that will be
              used in determining your sentence
              if you are found guilty?
              5. Do you understand that if you
              are found guilty of the crime
              charged in Count 1, the Court must
              impose an assessment of $___, and
              could sentence you to as many as
              ___ years in prison and fine you as
              much as $ ___? [Ask defendant
              this question for each count of the

                               16
indictment or information.]
6. Do you understand that if you
are found guilty of more than one
of these crimes, this Court can
order that the sentences be served
consecutively, that is, one after
another?
7. Do you understand that if you
represent yourself, you are on your
own? I cannot tell you — or even
advise you — as to how you should
try your case.
7a. Do you know what defenses
there might be to the offenses with
which you are charged? Do you
understand that an attorney may be
aware of ways of defending against
these charges that may not occur to
you since you are not a lawyer? Do
you understand that I cannot give
you any advice about these
matters?
8. Are you familiar with the Federal
Rules of Evidence?
8a. Do you understand that the
Federal Rules of Evidence govern
what evidence may or may not be
introduced at trial and that, in
representing yourself, you must
abide by those rules?

                17
9. Are you familiar with the Federal
Rules of Criminal Procedure?
9a. Do you understand that these
rules govern the way a criminal
action is tried in federal court? Do
you understand that you must
follow these rules?
10. Do you understand that you
must proceed by calling witnesses
and asking them questions, and
that, except when and if you
yourself testify, you will not be
permitted to tell the jury matters
that you wish them to consider as
evidence?
10a. Do you understand that it may
be much easier for an attorney to
contact potential witnesses, gather
evidence, and question witnesses
than it may be for you?
11. I must advise you that in my
opinion a trained lawyer would
defend you far better than you
could defend yourself. I think it
unwise of you to try to represent
yourself. You are not familiar with
the law. You are not familiar with
court procedure. You are not
familiar with the rules of evidence.
I strongly urge you not to try to

                18
       Our review of a defendant’s decision to proceed pro se is
plenary, see Stubbs, 281 F.3d at 113 n.2, and we “must indulge
every reasonable presumption against a waiver of counsel.”
Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir. 2000). When a
waiver is deemed ineffective (i.e., not knowing, intelligent, and
voluntary), there is no harmless error review, and the conviction
must be vacated and the case remanded for a new trial. Stubbs,
281 F.3d at 117, 121.



              represent yourself.
              12. Now, in light of the penalties
              that you might suffer if you are
              found guilty, and in light of all of
              the difficulties of representing
              yourself, do you still desire to
              represent yourself and to give up
              your right to be represented by a
              lawyer?
              13. Are you making this decision
              freely, and does it reflect your
              personal desire?
              14. Do you have any questions, or
              do you want me to clarify or
              explain further anything that we
              have discussed here?

Peppers, 302 F.3d at 136-37 (citing Fed. Judicial Ctr., Bench
Book for U.S. Dist. Ct. Judges § 1.02 (4th ed. 2000)) (footnotes
omitted; bracketed material in original).

                               19
                          III. Analysis

       A.     Clear and Unequivocal Waiver

        Much as we appreciate the difficult balancing required of
district judges in cases like this one, we cannot conclude that
Jones clearly and unequivocally waived his right to counsel. To
review, Jones stated several times that he only wished to
proceed pro se if the Court would not appoint another attorney
to replace Rymsza. The Court did not approve new counsel at
the outset, and examined Jones on his desire and ability to
represent himself. The Court also told Jones that “[t]he only
reason we appoint counsel, if you try this case yourself, is that
if the situation gets so bad that we no longer can permit you to
try it yourself,” standby counsel would step in. The Court
informed Jones that standby counsel could not give him legal
advice or examine him if he testified.5


       5
          The District Court took an overly restrictive view of the
role of standby counsel in this manner. We have expressly
approved arrangements in which standby counsel advises a pro
se defendant, makes opening or closing statements, and
questions the defendant if he testifies in his own defense. See
United States v. McFadden, 630 F.2d 963, 969 & n.12 (3d Cir.
1980); see also United States v. Bertoli, 994 F.2d 1002, 1019
(3d Cir. 1993) (noting that standby counsel “must be available
if and when the accused requests help,” “must be ready to step
in if the accused wishes to terminate his own representation,”
may “explain and enforce the basic rules of courtroom protocol

                                20
       The Court later agreed to appoint a new attorney. Jones
asked whether counsel could examine him on the stand if he
wished to proceed pro se, and the Court told him no and asked
if he would object if the case were listed for trial in October.
Jones replied, “No. Your Honor, I would rather proceed pro se,
but I would — I would accept that if it was on the October list.”
The Court then asked if Jones wanted to proceed pro se “despite
the disadvantages of representing yourself . . . than have us
appoint new counsel for you,” and Jones replied that he did.
The Court considered the matter closed and decided that Jones
thereafter could proceed pro se.

        Particularly since we are to “indulge every reasonable
presumption against a waiver of counsel,” Buhl, 233 F.3d at
790, we cannot conclude that Jones clearly and unequivocally
wanted to proceed pro se instead of having the Court appoint
full counsel. Jones repeatedly asked for full counsel or, if he
was to proceed pro se, for standby counsel to advise him and
question him if he testified. The District Court understated the
role of standby counsel, and mentioned that new counsel could
not try the case until October. Jones replied that, although he
“would rather proceed pro se,” he would accept new counsel to
try the case in October. We believe it is reasonable to presume
that Jones was expressing his desire to represent himself with
the active assistance of standby counsel, but since the District


to the accused,” and serves to “overcome routine obstacles that
may hinder effective pro se representation”)

                               21
Court would not allow that, he would accept the appointment of
new counsel to try the case. Instead, the District Court took
Jones’ statement to be a request to proceed pro se regardless of
the limitations on standby counsel. The trial judge did not,
however, pursue this matter by asking additional questions;
rather, he simply asked Jones if he wanted to proceed pro se
rather than have full counsel appointed.

          The District Court apparently presumed that Jones’
comment that he “would rather proceed pro se” meant that,
despite the limitations the District Court placed on standby
counsel, Jones still wanted to represent himself. This choice is
not clear from the record, however, and we do not indulge
presumptions that support a waiver of counsel. As noted, we
think it equally likely that Jones meant he would rather represent
himself with the active assistance of standby counsel, but was
willing to accept the appointment of full counsel instead. This
backdrop does not allow us to conclude that Jones’ waiver was
clear and unequivocal.

       B.     District Court’s Colloquy

       We also observe that the District Court’s formal inquiry
of Jones regarding his decision and ability to proceed pro se
skipped several important bases. As noted above, this Court
requires a penetrating and comprehensive evaluation of the
defendant’s reasons for proceeding pro se and his capacity to do
so, which must include a detailed, on-the-record explanation of


                               22
the various problems and pitfalls the defendant may encounter.
As we explained in Peppers, the District Court’s inquiry must
establish that the defendant understands “all risks and
consequences associated with his decision for self-
representation,” and “even [if] the colloquy skips just one of the
[relevant] factors,” it fails to establish that the waiver is
knowing, intelligent, and voluntary. 302 F.3d at 135.6


       6
         The District Court conducted its colloquy with Jones ex
parte, without the Government’s participation. Although we
have found no authority prohibiting such an approach, we
believe it inadvisable. As the Seventh Circuit noted in Bell, the
Assistant United States Attorney serves a useful function in
assuring that a district court’s colloquy is sufficient. See 901
F.2d at 578 (“As an officer of the court, the AUSA has some
responsibility to ensure, as far as may be reasonably possible,
the integrity of the proceedings. To this end, the AUSA should
have assisted the magistrate by calling to his attention the
possible inadequacy of [the] warnings.”). Indeed, the prosecutor
has a strong self-interest in doing so, for if the colloquy is
inadequate, the prosecutor will be forced to retry the case.
        We believe the prosecutor’s presence would have been
especially advisable in this case. The District Court conducted
its colloquy at a hearing convened to consider Attorney
Rymsza’s motion to withdraw as Jones’ counsel. We of course
have no question that Rymsza acted in good faith and desired to
benefit his soon-to-be-former client as much as possible under
the circumstances, but that is beside the point. The fact remains
that, on such a motion, Rymsza’s interests were opposed to
those of Jones. Thus, the District Court’s question to Rymsza

                               23
       The District Court’s colloquy with Jones established six
things: (1) Jones did not wish to have Rymsza represent him; (2)
he wished to proceed pro se if he could not have a different
lawyer; (3) he had never studied law; (4) he could have standby
counsel, but standby counsel could not give him advice or
question him if he took the stand in his own defense; (5) he
would be responsible for “the presentation of [his] case”; and (6)
he was “somewhat” familiar with the Federal Rules of Evidence
and Criminal Procedure. These issues are, of course, part of the
“penetrating and comprehensive examination of all the
circumstances” we require.

        But other important issues escaped examination. The
District Court did not, for example, inquire whether Jones
understood the possible defenses available to him, nor did it
explain that it could not give him any assistance. It did not
discuss any of the potential problems that an incarcerated
defendant might encounter in obtaining evidence and locating
and questioning witnesses. Upon hearing that Jones was only
“somewhat” familiar with the Rules of Evidence and Criminal
Procedure, the Court did not ask any follow-up questions to
determine the extent of his understanding, and whether he knew
that these rules prohibited him from simply telling the jury his



whether he believed Jones knowingly, intelligently, and
voluntarily waived his right to counsel was misdirected; that
question would have been better addressed to the Government’s
attorney.

                               24
story. Moreover, the Court never informed Jones that
representing himself was inadvisable.

        The District Court also never informed Jones of the
magnitude of the sentence he could receive as a career offender
under the Sentencing Guidelines (which nearly quintupled the
sentence he would otherwise receive), or of the fact that his
prior drug convictions raised the statutory maximum punishment
to 30 years in prison. The Government argues that the possible
sentence was discussed at Jones’ initial appearance before a
Magistrate Judge in July 2003 (more than a year before the
colloquy that is our focus), and thus Jones knew what he faced.
As explained above, we reject the approach of some of our sister
Circuits that allows examination of the record as a whole in an
attempt to divine what the defendant understands about the
consequences of proceeding pro se. A complete, on-the-record
colloquy with the defendant, one that assures he understands all
the risks of proceeding without an attorney at the time he makes
that choice, is in our view a significantly better way of
protecting the right to counsel than the whole-record approach.


       Nonetheless, we have on occasion looked beyond the
District Court’s colloquy to determine whether a defendant
understood the charges and sentence, most notably in United
States v. McFadden, 630 F.2d 963 (3d Cir. 1980). McFadden
involved a defendant who “unquestionably” sought to “employ
complaints against counsel as a dilatory tactic in order to


                              25
postpone trial, raise a Speedy Trial Act claim, or await possible
death or unavailability of prosecution witnesses.” Id. at 972.
We recognized that in those circumstances the defendant was
not entitled to challenge the effectiveness of his waiver where
the District Court engaged in a lengthy examination of his
reasons for proceeding pro se and the record revealed that he
had been informed numerous times, by the Court and appointed
counsel, of the charges, possible sentence, available defenses,
evidence, and the limitations he would face if he refused to
accept counsel’s advice. In Welty (decided by a panel that
included two of the judges who considered McFadden), we
explained that McFadden “represents the furthest that this court
has gone in upholding a defendant’s waiver of counsel,” and
noted that the unique circumstances of that case — coupled with
the fact that McFadden was appointed standby counsel who
gave advice, examined McFadden on the stand, and made
opening and closing statements — presented a limited
circumstance in which we might look beyond the colloquy.
Welty, 674 F.2d at 192-93. We explained, however, that
McFadden provides “no authority” for relieving the District
Court of its usual obligation to conduct a detailed and
comprehensive inquiry. Id. at 193.7

       7
         In Stubbs, we stated that, in a case where the charges
and potential punishment were formally explained to the
defendant on at least three separate occasions, the trial judge
need not have reminded the defendant of them again during the
waiver-of-counsel colloquy. See 281 F.3d at 120 n. 9 (citing
McFadden, 630 F.2d at 972). The Government relies on this

                               26
        There is no suggestion that Jones sought to proceed pro
se for an improper purpose, such as to delay trial or beget a
Speedy Trial Act violation. Moreover, to the extent it is
relevant, Jones was not permitted the active assistance of
standby counsel. See Welty, 674 F.3d at 193 (distinguishing
McFadden, inter alia, on the ground that “the Court in [that
case], unlike the court in the instant case, appointed a . . . lawyer
to serve as standby counsel[,] . . . [who] sat at the counsel table
with McFadden, was available to give McFadden any legal
advice he needed, examined McFadden when he took the stand,
and made opening and closing statements on McFadden’s
behalf”). McFadden does not, therefore, control this case.

       Even if we were inclined to look beyond the District
Court’s colloquy, we note that the record contains no evidence
that Jones was ever directly informed of the punishment he
faced. At his initial appearance in July 2003, 13 months before
the District Court questioned him about his desire to proceed pro


statement for the expansive proposition that because the charges
and possible sentence a defendant faces are usually entered into
the record at the initial appearance, there is no need to include
these as part of the District Court’s examination. Our decision
in Stubbs held that numerous other problems with the District
Court’s colloquy in that case rendered the defendant’s waiver
ineffective, and thus the cited footnote was dicta. Also, as is
clear from the discussion below, Jones’ case is distinguishable
from the situation in Stubbs (and the situation in McFadden).


                                 27
se, the only mention of the potential punishment was a short
statement by the prosecutor to the Magistrate Judge, in Jones’
presence, that Jones was a “career criminal” who would face a
statutory maximum of 30 years in prison and a minimum
Guidelines sentence of 21 years. The Magistrate Judge did not
attempt to ascertain whether Jones understood this sentence, and
apparently it was never mentioned again. Indeed, there is
evidence in the record that Jones did not understand his possible
punishment: in his December 2003 letter to the District Court
requesting that his first attorney be replaced, Jones stated
(erroneously) that “the actual highest possible sentence I c[an]
receive [is] 20 yrs. (240 mths.).”

         In any event, the prosecutor’s single mention of the
potential punishment at a hearing more than a year before Jones
expressed his desire to proceed pro se was insufficient, as a
matter of law, to demonstrate that he was aware of the
magnitude of punishment he faced. We require a detailed
colloquy with the defendant explaining the various factors
relevant to his decision to represent himself, at the time he seeks
to waive counsel, precisely to avoid such problems. The
knowing, intelligent, and voluntary nature of a defendant’s
decision to waive his fundamental right to counsel should not
hinge on fuzzy inferences about his understanding of crucial
subjects gleaned from comments made by others at hearings
months or even years before.

                       *    *   *    *    *


                                28
       All of these matters are necessary components of the
penetrating and comprehensive examination of a defendant’s
request to waive counsel. Although no scripted recital is
required for this inquiry, we do require that all of the subjects
covered in the model questions set forth in Peppers be fully
explored in the inquiry, to the extent those subjects are relevant.8
The colloquy here did not satisfy this standard.

                                IV.

       We conclude that, on the record before us, Jones did
not express a clear and unequivocal desire to proceed pro se,

       8
          There is, of course, no need to explain factors that are
irrelevant to the defendant’s circumstances, and the District
Court is not required to probe the defendant’s understanding of
a particular issue more deeply if his initial answer to a question
regarding that issue is sufficient to satisfy the requirements of
the District Court’s inquiry. See, e.g., Peppers, 302 F.3d at 134
(noting that the District Court must inquire into the
circumstances “as thoroughly as needed to satisfy itself that the
defendant understands the nature of the charges, the range of
possible punishments, potential defenses, technical problems
that the defendant may encounter, and any other facts important
to a general understanding of the risks involved” (internal
quotation marks omitted)). Here, however, the District Court
did not ask about many factors that were relevant to Jones, and
did not follow up on questions to which Jones gave ambivalent
or tentative answers (such as his statement that he was only
“somewhat” familiar with the rules of trial).

                                29
nor can we determine that his waiver of the right to counsel
was knowing, intelligent, and voluntary. Regardless of the
strength of the evidence against Jones, we are constrained to
vacate his conviction and remand to the District Court for a
new trial.




                              30
