                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                  ______________

                                      No. 08-4395
                                     _____________

                            UNITED STATES OF AMERICA

                                            v.

                              BRUCE GORDON LOW, JR.,

                                                 Appellant

                                     _____________

                         On Appeal from the United States District Court
                                  for the District of New Jersey
                                 (Crim. No. 1-06-cr-00791-001)
                            District Judge: Hon. Joseph H. Rodriguez

                                   Argued: October 26, 2010

       Before: McKEE, Chief Judge, SLOVITER and RENDELL, Circuit Judges


                            (Opinion filed: December 1, 2010)


ANNETTE VERDESCO, ESQ. (Argued)
Caruso Pope Edell Picini, P.C.
60 Route 46 East
Fairfield, NJ 07004

Attorney for Appellant

PAUL J. FISHMAN, ESQ.
United States Attorney
GEORGE S. LEONE, ESQ.
Chief, Appeals Division


                                                 1
Office of the United States Attorney
970 Broad Street
Newark, NJ 07102
NORMAN GROSS, ESQ. (Argued)
Assistant United States Attorney
Camden Federal Building and United States Courthouse
401 Market Street, 4 th Floor
Camden, NJ 08101

Attorneys for Appellee

                                        __________

                                         OPINION
                                        _________


McKEE, Chief Judge.

      Bruce Gordon Low appeals from the district court’s judgment of sentence arguing

that the district court deprived him of his Sixth Amendment right to counsel by directing

him to proceed pro se at his sentencing hearing. He also challenges the resulting sentence

on numerous grounds. Although the district court was presented with an obviously

vexing set of circumstances and tried to respond appropriately, we nevertheless conclude

that the court did not afford Low his Sixth Amendment right to be represented by counsel

at sentencing. Accordingly, for the reasons set forth below, we will vacate Low’s

sentence and remand for resentencing.

                                            I.

      Because we write primarily for the parties, we will recite only the facts and

procedural history that are necessary for the disposition of this appeal. Although Low’s

change of plea colloquy and guilty plea occurred on September 28, 2006, his sentencing



                                                 2
hearing did not occur until October 21, 2008. Four different attorneys represented Low

during the lengthy period that began with Low’s guilty plea and ended with his

sentencing hearing. Prior to appointing the fourth attorney to represent Low, the court

warned Low that it would not appoint another. The court explained:

              [T]hree attorneys have already been involved already. . . . Now, Mr.
       Low, giving greater respect to your right to counsel can be strained to the
       point where a Court can consider itself at the end of the line. . . . I’m going
       to appoint another counsel. . . . If you have any dispute with that counsel, he
       will not be relieved, he’ll be standby counsel and you’ll proceed pro se.
       There’s a limit to how many lawyers can be assigned to you under the
       circumstances of this case. So I’m saying very clearly this is the last person
       who will respond to the motion. If you have a disagreement with him, you
       argue it yourself pro se, he’ll be standby to assist you . . . . So I want you to
       understand that clearly, this is the last lawyer.

S.A. 52-53.

       Despite the court’s warning that Low’s fourth attorney would be his last, Low sent

a letter asking the district court to remove his fourth attorney from the case and requesting

appointment of a fifth attorney. The district court dismissed Low’s fourth attorney as

Low requested. However, the court refused to appoint another attorney and ordered Low

to proceed pro se at his sentencing hearing, with his fourth attorney serving as standby

counsel.

       Immediately following the hearing, the government sent a letter to the court

stating:

       As you know, during yesterday’s proceedings in this case, Your Honor
       granted the defendant’s motion to represent himself at sentencing, and
       directed Mr. Renner to no longer actively represent the defendant. After
       that hearing, it belatedly occurred to me that, before sentencing takes place,
       the Court should conduct a colloquy of the defendant pursuant to Faretta v.
       California, 422 U.S. 806 (1975), in order to insure that his decision to


                                                  3
       proceed pro se is knowing and voluntary. . . . I therefor[e] request that you
       conduct a Faretta colloquy of the defendant before the start of the
       sentencing hearing.

S.A. 93. In response to the government’s request for a Faretta colloquy, Low wrote a

letter to the court objecting to any hearing and to the government’s representation that he

had elected to proceed pro se, reiterating that he was forced to do so despite requesting

appointment of new counsel.

       Low’s sentencing hearing finally proceeded on October 21, 2008, with Low acting

pro se and his fourth attorney serving as standby counsel. At sentencing, the district court

explained to Low some of the dangers of proceeding pro se and told Low that he had

waived his right to counsel by his conduct. However, the court’s explanation did not

serve to warn Low of the risks of proceeding pro se because Low was already acting pro

se at the time he received this information, and he was not given the opportunity to

proceed at sentencing with his fourth attorney acting as counsel. At the conclusion of

Low’s sentencing hearing, the district court sentenced Low to 151 months of

imprisonment on the drug offense and a concurrent sentence of 120 months of

imprisonment on the firearms offense.

                                            II.1

       Although Low does not contest that the district court properly deemed his conduct

sufficiently dilatory to trigger a waiver by conduct, Low argues any such waiver was not

valid because the district court failed to warn him of the dangers of proceeding pro se



1
       We have jurisdiction pursuant to 28 U.S.C. § 1291.


                                                   4
before forcing him to do so, and that his Sixth Amendment right to counsel was thereby

violated.

       We exercise plenary review over Low’s claim that the district court violated his

Sixth Amendment right to counsel “since it is tantamount to a claim of an ineffective

waiver of a constitutional right.” United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir.

1995). The Sixth Amendment provides, “In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.

amend. VI. “It is well settled that the erroneous deprivation of a criminal defendant’s

fundamental right to the assistance of counsel is per se reversible error.” Goldberg, 67

F.3d at 1103.

       A waiver of the right to counsel is only valid if it is knowing, voluntary, and

intelligent. Id. at 1099. In Faretta v. California, 422 U.S. 806, 835 (1975), the Supreme

Court held that a trial court must warn the defendant of the dangers of proceeding pro se

as a constitutional prerequisite to a valid waiver of the right to counsel. Moreover, in

United States v. Welty, 674 F.2d 185, 189 (3d Cir. 1982), we held that “a defendant’s

waiver of counsel can be deemed effective only where the district court judge has made a

searching inquiry sufficient to satisfy him that the defendant’s waiver was understanding

and voluntary.” Thus, “our decision in Welty mandates that trial courts conduct a

Faretta-type inquiry before permitting a defendant who asks to represent himself to do

so.” Goldberg, 67 F.3d at 1099.

       Although Low did not expressly waive his right to counsel, we have held that

“[o]nce a defendant has been warned that he will lose his attorney if he engages in


                                                 5
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.” Id. at 1100. However, a valid

waiver by conduct “requires that a defendant be warned about the consequences of his

conduct, including the risks of proceeding pro se.” Id. at 1101. In Goldberg, we held that

there was no valid waiver by conduct because the district court had failed to provide the

defendant with a Faretta/Welty colloquy concerning the risks of proceeding pro se. Id. at

1102-03.

       It is undisputed that Low did not receive a Faretta/Welty colloquy. The conclusion

that naturally flows from our holding in Goldberg is that Low did not validly waive his

right to counsel by his conduct. The government argues that, unlike Goldberg where the

defendant was forced to proceed pro se at trial, Low was only forced to proceed pro se at

sentencing and therefore, a formal colloquy was not required.2

       The distinction between proceeding pro se at sentencing as opposed to trial “is

clearly relevant to the content of the colloquy which the court must have with the

defendant. It does not, however, eliminate the need for the district court to make an

inquiry sufficient to support a finding that the waiver of counsel is voluntary, knowing


2
        The government also attempts to rely on Low’s response to the letter the
government sent to the court requesting that Low be given a Faretta colloquy. The
government claims that Low’s response constitutes invited error. The argument is
frivolous.
       The doctrine of invited error rests on the fact that “‘[a] defendant cannot complain
on appeal of alleged errors invited or induced by himself.’” United States v. Console, 13
F.3d 641, 660 (3d Cir. 1993) (quoting United States v. Lewis, 524 F.2d 991, 992 (5th Cir.
1975)). Nothing on this record suggests that the court relied on the uncounseled
statements of a vexatious defendant in determining how to proceed or what the Sixth
Amendment required.


                                                6
and intelligent.” United States v. Salemo, 61 F.3d 214, 219 (3d Cir. 1995). “Neither

logic nor precedent supports carving out an exception when the waiver occurs at

sentencing. Of course, the inquiry at sentencing need only be tailored to that proceeding

and the consequences that may flow from it.” Id.

       In Salemo, the defendant, who requested to proceed pro se, was allowed to do so at

sentencing without receiving a Faretta/Welty colloquy; however, the court assigned him

standby counsel. Id. at 222. Despite the assignment of standby counsel at the

defendant’s sentencing hearing, we held that the defendant’s Sixth Amendment right to

counsel was violated because he did not receive a Faretta/Welty colloquy. Id. We

reached this holding based on our conclusion that standby counsel at sentencing was not a

substitute for a valid waiver of counsel because “it did not satisfy the court’s

‘responsibility of ensuring that any choice of self-representation is made . . . with an

awareness of the dangers and disadvantages inherent in representing oneself.’” Id.

(quoting Welty, 674 F.2d at 188).

       Similarly, Low received no Faretta/Welty colloquy, but he was assigned standby

counsel. As we have already held in Salemo, in the absence of a Faretta/Welty colloquy,

a trial court’s assignment of standby counsel to a defendant proceeding pro se does not

sufficiently protect a defendant’s Sixth Amendment right to counsel. Moreover, unlike

the defendant in Salemo, Low did not request to proceed pro se. Therefore, we hold that

the district court violated Low’s Sixth Amendment right to counsel when it forced him to

proceed pro se without providing an adequate Faretta/Welty colloquy.3
3
       The government is correct that “we have on occasion looked beyond the District


                                                  7
                                             III.

       Before concluding, it is worth reiterating that we understand that the district court

was faced with a vexatious defendant who insisted on dismissing attorney after attorney

and who may well have been trying to do little more than “game the system.” Moreover,

the record is sufficiently clear that we need not resort to reading between the lines to

know that Low’s attorneys were consistently frustrated when dealing with him. Faced

with this situation, the district court was quite properly concerned with not allowing Low

to sabotage the proceedings or to impose his will on the court by constantly dismissing

attorneys and requesting new representation. Nevertheless, it is clear from our precedent,

as well as from the Court’s opinion in Faretta, that this will often be the situation when

Faretta is implicated. If Low was acting out of bad faith, he is no less entitled to know

the perils of his conduct than those who may want to proceed pro se for what they believe


Court’s colloquy to determine whether a defendant understood the charges and sentence.”
 United States v. Jones, 452 F.3d 223, 232 (3d Cir. 2006). However, it is the court’s
“usual obligation to conduct a detailed and comprehensive inquiry.” Id. at 233. The
government points to Low’s Rule 11 colloquy as evidence that he received some
warnings regarding the risks of proceeding pro se. However, his plea hearing occurred
almost two years before the court forced Low to proceed pro se. Any warnings given at
this time were insufficient, especially since Low never received any formal Faretta/Welty
colloquy.
        The government also points to warnings that the district court gave Low at his
sentencing hearing after it had already forced Low to proceed pro se. Clearly, any
warnings given after the court ordered Low to proceed pro se were insufficient because
warning someone of an event that has already occurred is not actually a warning.
Additionally, this post hoc warning defeated the very purpose of the Faretta/Welty
colloquy which is to warn the defendant about the perils of proceeding pro se and to
allow the defendant, after receiving these warnings, to change his/her mind and proceed
with counsel, if s/he so desires. Low should have been warned of the perils of proceeding
pro se when his fourth attorney was appointed and the court warned him of the possibility
of a waiver.


                                                    8
to be the best of reasons. Accordingly, we must vacate this sentence and remand for a

new sentencing hearing preceded by warnings consistent with Faretta and Welty. If Low

then persists in dismissing his attorney, the court may deem that conduct to constitute a

waiver of his Sixth Amendment right to counsel.4




4
       Since we are remanding for a new sentencing hearing, we need not address Low’s
claims of sentencing errors.


                                                 9
United States v. Bruce Gordon Low, Jr., No. 08-4395

SLOVITER, Circuit Judge, Dissenting.

       No one could argue with Chief Judge McKee’s exemplary exposition of the legal

principles applicable when a defendant requests counsel and/or chooses to represent

himself. My quarrel with the majority lies in the application of those principles to the

case at hand. Low didn’t just request a counsel. He requested his fifth counsel. The

majority states that Low “may well have been trying to do little more than ‘game the

system.’” I think that Low was indeed gaming the system, and that we should not permit

him to do so.

       A brief recapitulation of the facts will show why.

       On September 28, 2006, Low and his court-appointed counsel, Lori Koch, both

signed a plea agreement whereby Low agreed to plea guilty to one count of knowingly

and intentionally distributing and possessing with the intent to distribute “more than fifty

grams of cocaine base, to wit, ‘crack’ cocaine” and one count of being a felon in

possession of a firearm. App. at 8. That same day, in the presence of counsel Low

entered his guilty plea after an extensive colloquy with the District Court, which the

District Court accepted.

       Low subsequently dismissed Attorney Koch and retained private counsel, Attorney

Ari Karpf. On May 30, 2007, the evening before his sentencing was scheduled to occur,

Attorney Karpf moved to withdraw based on irreconcilable differences. Low stated his

intent to have counsel withdraw and also moved to withdraw his guilty plea. Low

asserted that prior counsel coerced him into pleading guilty and that none of the

                                              1
substances he possessed contained crack. The District Court granted the counsel’s

motion to withdraw and appointed Attorney Frederick Klepp as the replacement. On

August 2, 2007, Low withdrew his motion to withdraw his guilty plea. However, on

August 13, 2007, Low reinstated his motion to withdraw his plea. Shortly thereafter, Low

moved to remove Klepp as counsel.

       During a hearing on the motions, the District Court instructed Low that he was

going to grant his motion for withdrawal of counsel and appoint another counsel. As the

majority points out, the District Court warned Low at length that “[i]f you have any

dispute with [new] counsel, he will not be relieved, he’ll be standby counsel and you’ll

proceed pro se.” Supp. App. at 52. Low replied that he “[u]nderstood.” Supp. App. at

53. Attorney John Renner was appointed as Low’s fourth counsel. During an April 23,

2008 hearing, Low again withdrew the motion to withdraw his plea and stated, under

oath, that he understood that at sentencing he would not be challenging the type of

narcotics described in the plea agreement.

       On June 7, 2008, Low asked that he be relieved of Attorney Renner and be

appointed a fifth attorney. During a July 22, 2008 hearing, the Court granted Low’s

motion to remove Attorney Renner but, pursuant to its previous warning, refused to

provide Low with another attorney. However, the Court instructed Attorney Renner to

remain available as standby counsel.

       The next day, the Government wrote to the District Court, noting that because Low

was now proceeding pro se, the Court should conduct a colloquy to warn Low of the

potential pitfalls of self-representation pursuant to Faretta v. California, 422 U.S. 806

                                              2
(1975). Low responded by letter stating, “I . . . object to this hearing,” Supp. App. at 95

(emphasis in original), and stated, “I am prepared to move forward with sentencing on my

own.” Id. Low also objected to Renner “step[ing] in and handl[ing] the sentencing

hearing . . . .” Id. (internal quotation marks omitted).

       Notwithstanding Low’s objection, at the beginning of the sentencing hearing, the

District Court specifically called to Low’s attention the dangers of pro se representation.

App. at 105-06. The Court told Low that it wanted to be sure that “you’re fully aware

that in proceeding without an attorney that you could be potentially subjecting yourself to

additional problems because of the lack of full knowledge of the situations that are

involved, or the law, and what they may very well mean with respect to your eventual

outcome in this case.” App. at 105. The Court then asked if Low understood these

potential problems and whether he understood, specifically as to sentencing, the “issues

involved with respect to acceptance of responsibility, [and] other calculations within the

Presentence Report . . . .” App. at 106. While at first not understanding the question,

upon clarification Low stated that he did understand. However, Low continued to insist

that he was not choosing to proceed pro se. The Court responded that by rejecting four

lawyers, Low had, by his actions, waived his right to an attorney.

       However, the Court directed that Attorney Renner be present in order to safeguard

Low’s rights, should Low need assistance. During sentencing, Low consulted Renner at

least twenty times on a variety of issues. Indeed, he even referred to Renner as “my

lawyer.” See, e.g., App. at 116 (“Mr. Low: Can I have one second to talk to my

lawyer?”). In fact, Renner called two witnesses on Low’s behalf.

                                              3
       We review de novo a defendant’s claim that he was denied his Sixth Amendment

right to counsel. United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995).

Application of the facts to the legal principles articulated by Chief Judge McKee

demonstrates that Low’s Sixth Amendment rights were satisfied.

       It is undisputed that Low was warned by the District Court that should he fail to

cooperate with his fourth attorney, he would not be appointed a fifth and would have to

proceed pro se. The Court’s warning, while clearly indicating that Low’s right to counsel

would be waived by continued misconduct, did not contain all of the details set forth in

Faretta regarding the risks of proceeding pro se. However, Low had evinced an

understanding of the importance of counsel, his rights, and the sentencing process.

       He did so first on July 22, 2008, before the motion to withdraw Renner had been

granted, when Low stated his understanding that he was at risk of losing three points for

acceptance of responsibility at sentencing, Supp. App. at 76,1 later when he objected to

the Faretta colloquy, Supp. App. at 95, and thereafter when, in response to the Court’s

inquiry, he affirmed that he understood the perils of proceeding without counsel and that

he felt comfortable navigating the sentencing procedures himself. App. at 106.

       Although a waiver of counsel at sentencing must be knowing and intelligent, “the

inquiry at sentencing need only be tailored to that proceeding and the consequences that
1

     As the majority notes, “we have on occasion looked beyond the District Court’s
    colloquy to determine whether a defendant understood the charges and sentence.”
    United States v. Jones, 452 F.3d 223, 232 (3d Cir. 2006). In United States v.
    McFadden, where the defendant had dismissed just two counsel, we looked beyond
    the court’s warning to the advice competent counsel had given because the defendant
    “was not entitled to employ complaints against counsel as a dilatory tactic.” 630 F.2d
    963, 972 (3d Cir. 1980).
                                             4
may flow from it. Therefore, it need not be as exhaustive and searching as a similar

inquiry before the conclusion of trial.” Salemo, 61 F.3d at 219. Here, the District Court

specifically warned Low of the risks of proceeding pro se.

       Additionally, Low made extensive use of standby counsel during sentencing, all of

which is noted in the transcript. We have stated that the availability and use of standby

counsel is a factor militating against a finding that the Sixth Amendment was violated.

See, e.g., Gov’t of Virgin Islands v. James, 934 F.2d 468, 472-73 (3d Cir. 1991).

       Accordingly, I would reject Low’s contention that he was deprived of his right to

counsel. The District Court adequately balanced the “defendant’s Sixth Amendment right

to counsel with [the] district court’s legitimate interest in guarding against manipulation

and delay.” Goldberg, 67 F.3d at 1098. In any event, Renner did in fact act as Low’s

counsel and Low took full advantage of his services. I would affirm the judgment of

sentence.




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