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            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           April 27, 2012

                                       No. 11-30151                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

ALMOND J. RICHARDSON,

                                                  Defendant - Appellant



                  Appeals from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CR-34-1


Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
        Almond Richardson stands convicted of selling drugs to confidential
informants on two occasions, the second occasion while on bail for his first crime.
Richardson was indicted in seven counts stemming from both incidents. Before
trial, Richardson filed several motions to suppress evidence, a motion for a
Franks hearing, and a motion to proceed pro se. The district court denied all of
these motions. Richardson was convicted of five counts and acquitted on two
counts.

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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       On appeal, Richardson argues that the district court erred by denying each
of his motions and thus raises Fourth and Sixth Amendment issues. We find no
merit to Richardson’s contentions that the district court erred by denying his
motions to suppress and his motion for a Franks hearing, and we therefore
AFFIRM the district court’s rulings on those motions.1 We do, however, hold
that the district court erred by denying Richardson’s motion to proceed pro se.
We therefore hold that Richardson is entitled to a new trial and thus VACATE
all convictions and sentences and REMAND for further proceedings not
inconsistent with this opinion.
                                             I.
       During the last week of February 2006, the East Baton Rouge Sheriff’s
Department received a tip that there was rampant drug dealing in Apartment
Two of the O’Neal Lane apartment complex. On March 1, four members of the
East Baton Rouge Sheriff’s Department’s Special Community Anti-Crime Team,
Officers Kenneth Huber, Malcom Hall, Kama Roussell and John Knapp, began
surveillance of Apartment Two.
       Officer Huber, the leader of the surveillance operation, who was positioned
inside one of the O’Neal Lane Apartments, observed people entering and exiting
through Apartment Two’s side door. Officer Huber saw a white male visit
Apartment Two, walk to the complex’s parking lot, and sell drugs to Barry
Anderson, a white male sitting in a pick-up truck. Officer Huber radioed
Officers Roussell and Knapp about the drug deal, and they followed Anderson’s
truck out of the apartment complex’s parking lot. The officers stopped the truck
and searched Anderson for drugs. The officers found a rock of crack cocaine in
Anderson’s pocket and arrested him.


       1
         A Franks hearing is a hearing to determine whether a police officer’s affidavit used
to obtain a search warrant was based on false statements by the police officer. Franks v.
Delaware, 438 U.S. 154 (1978).

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      Following the arrest, Officers Roussell and Knapp questioned Anderson,
who said that he knew a black male named “Omar” who was selling drugs in
Apartment Two. Anderson informed the officers that he wanted to work as a
confidential informant and buy drugs from “Omar.”
       Officers Roussell and Knapp took Anderson to the sheriff’s department
substation for booking. After the booking, Officer Hall searched Anderson for
contraband and then drove him from the station back to the apartment complex
in an unmarked car.      With Officer Huber still watching the side door of
Apartment Two, Anderson went to the side door and asked Almond Richardson,
whom Anderson knew as “Omar,” for forty dollars worth of crack cocaine. At
that point, Anderson entered the apartment, and the officers did not see any
more of Anderson’s interaction with Richardson. After Anderson left the
apartment, he immediately returned to Officer Hall’s truck and told Officer Hall
that he bought forty dollars worth of crack cocaine from Richardson. After
another search of Anderson’s person, Officer Hall recovered almost a gram of
crack cocaine from Anderson.
      The next day, on March 2, Officer Huber filed a warrant affidavit, seeking
a search warrant for Richardson’s apartment and vehicle (“March 2 warrant”
or the “March 2, 2006 warrant”); the warrant was primarily supported by the
controlled buy. The affidavit for the search warrant stated that a confidential
informant contacted Huber and that the confidential informant volunteered to
participate in a controlled buy. The affidavit further indicated that the officers
had constant visual surveillance of the outside of Apartment Two before and
after the buy. A state court magistrate granted the sheriff’s department the
search warrant on the basis of the facts contained in Officer Huber’s warrant
affidavit.
      The sheriff’s department executed the warrant on that same day. After
a search of Richardson’s apartment, the police found crack cocaine, a loaded

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                                        No. 11-30151

rifle, marijuana, and marijuana plants. The police found more marijuana in
Richardson’s car.
      After finding Richardson’s collection of various and sundry drugs, the
officers read Richardson his Miranda rights; Richardson stated that he
understood his rights and signed a form to such effect.                 Richardson told the
police that he sold cocaine and marijuana and that the marijuana plants
belonged to him. Richardson was then arrested.
      On February 15, 2007, a federal grand jury returned a four-count
indictment charging Richardson with crimes related to the March 2, 2006
warrant, including: distribution of cocaine base (Count 1),2 being a felon in
possession of a firearm (Count 2),3 possession with the intent to distribute
marijuana (Count 3),4 and possession of marijuana plants (Count 4).5
      In May 2007, more than a year after Richardson’s previous arrest and
when he was out on bail, Richardson began selling drugs from his girlfriend’s
apartment in the St. Jeanne apartment complex. A confidential informant
(“CI”), who lived in the apartment complex and was tired of the seedy
characters that Richardson’s drug dealing attracted to the apartment, contacted
the East Baton Rouge Sheriff’s Department. The CI informed the department
that Richardson was selling drugs from the apartment as well as his business,
Just 4 U Fashion. The CI further volunteered to participate in a controlled buy
from Richardson.




      2
          Distributing cocaine base violates 21 U.S.C. § 841(a)(1).
      3
          Felons possessing firearms violate 18 U.S.C. § 922(g)(1).
      4
          Possession with the intent to distribute marijuana violates 21 U.S.C. § 841(a)(1).
      5
          Growing marijuana plants violates 21 U.S.C. § 841(a)(1).

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      On May 17, the CI approached Richardson’s girlfriend’s apartment and
bought fifty ecstasy pills from Richardson with five bills previously marked by
the sheriff’s department.
      With probable cause established by the controlled buy, the sheriff’s
department obtained a search warrant for Richardson’s girlfriend’s apartment
and an arrest warrant for Richardson. The sheriff’s department delayed
execution of the warrants because they did not yet have probable cause to
obtain a search warrant for Richardson’s store, Just 4 U Fashion.
      The next day, May 18, the sheriff’s department started surveilling Just
4 U Fashion, which was not yet open to the general public, as indicated by a
sign outside the store that stated “Just For You Coming Soon.” A white Honda
Civic soon pulled up to the store. Three people got out of the car, knocked on
the store’s door, entered the store, and returned to their car three to four
minutes later.      Shortly afterward, another car pulled up to the store.
Richardson went up to the car and conducted a hand-to-hand deal with the
driver. Finally, a four-wheeler ATV pulled up to the store, and the officer saw
Richardson conduct another hand-to-hand deal. After this third, apparent drug
deal at Just 4 U Fashion, two officers knocked on the business’ door to execute
Richardson’s arrest warrant. After the arrest, the officers conducted a search
of Richardson, and recovered two of the marked, one-hundred-dollar bills that
the CI had used the day before in the controlled buy.
      During the time that Richardson was being arrested at the store, other
officers executed the search warrant at Richardson’s girlfriend’s apartment,
which did not yield any contraband. However, based on the information
obtained from the CI and the officer’s observation of three apparent drug deals,
the sheriff’s department decided to obtain a search warrant for Just 4 U
Fashion. That night, an officer contacted Judge Marabella, a Louisiana state
magistrate judge, via telephone and read a warrant affidavit to the judge (the

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                                        No. 11-30151

“May 18 warrant” or the “May 18, 2007 warrant”). The warrant affidavit
indicated that the surveilling officer had observed several hand-to-hand drug
transactions, that customers had to knock on the business’ door to enter into the
business, and that customers did not stay longer than five minutes. The
warrant affidavit did not mention that Richardson’s store was not yet open to
the public and had a “coming soon” sign outside.
       After the judge approved the warrant affidavit, the sheriff’s department
searched Richardson’s store. The officers found 287 ecstasy pills and 11.2
grams of marijuana.
       On October 17, 2007, a grand jury returned a seven-count superseding
indictment against Richardson. The first four counts related to the March 2,
2006, search warrant and were identical to the charges listed in the first
indictment. The additional three counts related to the May 18, 2007, search
warrant and included: distribution of MDMA (commonly referred to as ecstasy)
(Count 5),6 possession with the intent to distribute MDMA (Count 6),7 and
possession of marijuana (Count 7).8
       As we have earlier noted, Richardson filed several pre-trial motions to
suppress evidence against him, which were addressed in three suppression
hearings conducted by the district court. In addition to filing motions to
suppress, Richardson effectively requested a Franks hearing to allow him to
offer evidence calling into question the truth or falsity of the sheriff’s
department’s statements in the warrant affidavits.




       6
           Distribution of MDMA violates 21 U.S.C. § 841(a)(1).
      7
         Richardson’s possession with the intent to distribute MDMA violated 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 3147(1).
      8
        The indictment alleged that Richardson’s possession of marijuana violated 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 3147(1).

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      The district court conducted suppression hearings on February 5, May 14,
and June 3, 2009. The court considered whether there was probable cause
supporting the March 2 and May 18 warrants and whether the warrants were
otherwise flawed. The district court also stated that it would accept testimony
during the suppression hearings as part of a Franks hearing or find that a
Franks hearing was unnecessary. On August 5, 2009, the district court issued
an order denying each of Richardson’s motions to suppress, finding that the
sheriff’s department had probable cause to initiate and execute the warrants.
The district court further held that “[t]o the extent the defendant is also asking
for a Franks hearing, that motion is also denied.”
      Four days before trial, Richardson’s attorney filed a motion to withdraw
as Richardson’s counsel, because Richardson had invoked his right to act as his
own counsel. On August 10, 2009, one day before trial was supposed to start,
the district court held a Faretta hearing.9 The court denied Richardson’s motion
to proceed pro se, holding that “the defendant’s method of insisting on what he
believes to be the law and what he believes lawyers should do or not do will
interfere with his right to a fair trial.”
      Richardson went to trial on August 11, 2009. After a three-day trial, the
jury convicted Richardson on the counts relating to being a felon in possession
of a firearm (Count 2), possession of marijuana plants (Count 4), distribution
of MDMA (Count 5), possession with the intent to distribute MDMA (Count 6),
and possession of marijuana (Count 7). Richardson was acquitted of two of the
charges relating to the March 2, 2006, warrant: distribution of cocaine base




      9
        A Faretta hearing is a hearing conducted to gauge whether a defendant has invoked
his or her right to self-representation knowingly, voluntarily, and competently; the judge
conducting the hearing must also warn the defendant of the dangers and pitfalls of self-
representation. Faretta v. California, 422 U.S. 806 (1975).

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(Count 1) and possession with the intent to distribute marijuana (Count 3). The
district court sentenced Richardson to serve 240 months of imprisonment.
      Richardson now appeals arguing that the district court erred by denying
his motion to suppress the evidence seized in the execution of the March 2, 2006
search warrant, that the district court erred by denying his motion to suppress
the evidence seized in the execution of the May 18, 2007, search warrant, that
the district court erred by denying his motion for a Franks hearing, and, finally,
that his Sixth Amendment rights were violated when the district court denied
him the right to act as his own counsel at trial.
                                       II.
                                       A.
      We are now prepared to address Richardson’s arguments. His first
argument is that the district court erred in denying his motion to suppress the
evidence seized in the execution of the March 2, 2006, search warrant.
      When considering an appeal of a denial of a motion to suppress, we review
legal questions de novo and the district court’s factual findings for clear error.
United States v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001). Furthermore, we
must view the evidence in the light most favorable to the party who prevailed
in district court. Id.
      The Fourth Amendment provides that “no warrants shall issue but upon
probable cause, supported by oath or affirmation.” U.S. Const. amend. IV. The
exclusionary rule mandates that “evidence obtained in violation of the Fourth
Amendment cannot be used in a criminal proceeding against the victim of the
illegal search and seizure.” United States v. Calandra, 414 U.S. 338, 347 (1974)
(citations omitted). When considering cases where a search is supported by a
warrant, we employ a two-step process for reviewing the district court’s denial
of a motion to suppress. See United States v. Cherna, 184 F.3d 403, 407 (5th
Cir. 1999). First, we establish whether the good-faith exception to the

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exclusionary rule applies. Id.; see also United States v. Leon, 468 U.S. 897, 920-
21 (1984). The good faith exception applies unless “a reasonably well trained
officer would have known that the search was illegal despite the magistrate’s
authorization.” Id. at 922 n.23. Thus, the good-faith exception does not apply
if the warrant affidavit contains a false statement that was made intentionally
or with reckless disregard for the truth. United States v. Cavazos, 288 F.3d 706,
709-10 (5th Cir. 2002). If the good-faith exception applies, the police officer is
assumed to have acted reasonably under the circumstances and we must deny
a motion to suppress, regardless of whether the warrant is actually supported
by probable cause. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010).
        If the officer’s conduct is such that the good-faith exception does not
apply, we must progress to the second step and determine whether, without the
false or misleading information, the magistrate issuing the warrant had a
substantial basis for believing there was probable cause for the search. Cherna,
184 F.3d at 407; Cavazos, 288 F.3d at 710.
       Here, Richardson argues that he presented incontrovertible evidence
indicating that the controlled buy between Anderson and Richardson, which
was the primary source of probable cause in the March 2 warrant affidavit,
never happened. More specifically, Richardson points to the testimony of
Officer Roussell, who indicated that he arrested Anderson and transported
Anderson to parish prison. Roussell testified that the controlled buy did not
occur and that it could not have happened, because it was not mentioned in his
arrest report. Officer Knapp, the other officer present during Anderson’s arrest,
also testified at the suppression hearing that the controlled buy did not occur.10
       Richardson further argues that there was no evidence linking Richardson
to the identity of “Omar,” nor was there any corroborating evidence supporting

       10
        At trial, Officer Knapp stated that the controlled buy did occur and that his earlier
testimony was mistaken.

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the controlled buy. The sheriff’s department did not use marked bills or a wire
when the purchase was allegedly made. Thus, Richardson contends that he
established that the controlled buy was fabricated in the warrant affidavit and
that the district court erred by upholding the search warrant and by allowing
the admission of the fruits of the warrant.
      Although Richardson has introduced evidence that challenges Officer
Huber’s truthfulness in the warrant affidavit, both officers Hall and Huber
testified at the suppression hearing that the controlled buy did, in fact, occur.
Thus, the district court was presented with conflicting evidence concerning the
existence of the controlled buy. We are not in the position to reweigh and
second-guess the district court’s consideration of valid, contradictory evidence,
especially on questions of credibility. Thus, we reject Richardson’s argument
that the district court erred by denying his motion to suppress the evidence
seized in the execution of the March 2 warrant on the grounds of conflicting
evidence as to whether the controlled buy actually occurred.
                                       B.
      Richardson also argues that the March 2 warrant should be invalidated
on the grounds that Officer Huber purposefully omitted facts from the warrant
affidavit which would call into question Barry Anderson’s reliability as an
informant. Richardson also argues that Officer Huber lied in the warrant
affidavit about how he came into contact with Anderson.
      Fourth Amendment jurisprudence requires that information fabricated
by officers be excluded from a warrant affidavit. See Leon, 468 U.S. at 924.
Similarly, the Fourth Amendment forbids officers from omitting information
from a search warrant affidavit if (1) the omission was knowingly and
intentionally made or was made in reckless disregard for the truth, and (2) the
inclusion of the omitted information would render the affidavit insufficient to



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                                 No. 11-30151

support a finding of probable cause. United States v. Martin, 615 F.2d 318, 328
(5th Cir. 1980).
      The record indeed shows that Anderson never approached Huber and
volunteered to perform the controlled buy, as is suggested by Huber in the
search warrant affidavit. Furthermore, Huber, in fact, excluded information
that might reflect negatively on Anderson’s reliability as an informant.
Nevertheless, the fact remains that even if the warrant affidavit was amended
to correct Huber’s misstatements and omissions, the affidavit still establishes
probable cause to search Richardson’s apartment. The remaining affidavit
contains all of the pertinent information relating to Anderson conducting the
controlled buy with Richardson, as set out earlier in this opinion, including
that: officers searched Anderson before the buy and found that he was
contraband-free, Huber saw Anderson approach the side door of Apartment
Two; officers saw Richardson answer the apartment door; officers heard
Anderson tell Richardson that he wanted to buy forty dollars worth of crack
cocaine; and, upon his return from the buy, Anderson gave Officer Hall the
crack cocaine that he had purchased from Richardson.          This evidence is
sufficient basis for probable cause to search Richardson’s apartment.
                                     III.
      Thus, having rejected Richardson’s arguments for suppressing the
evidence seized in the execution of the March 2 warrant, we will proceed to
address Richardson’s second argument: that the May 18, 2007, warrant was
insufficiently supported by probable cause.
      Richardson argues that the sheriff’s department made misleading
statements and significant omissions in its affidavit for a search warrant for
Just 4 U Fashion. For example, Richardson contends that the warrant affidavit
did not mention the fact that Just 4 U Fashion had a “coming soon” sign outside
and was not yet open for business, which would have clarified the erroneous

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impression that all of the visitors to Richardson’s store had to knock to enter as
in a “speak easy” context. In fact, only one transaction involved a door knock,
and the other transactions occurred in the business’ parking lot. Nevertheless,
even if the warrant affidavit had stated that the store was not yet open and not
all of Richardson’s customers had to knock to enter, it is difficult to see how
these facts make a notable difference. There was probable cause to issue the
warrant based on the information provided by the CI, including that Richardson
kept most of his narcotics at his store, the controlled buy involving the CI, that
officers found two of the marked bills used during the controlled buy when they
executed the arrest warrant on Richardson (which occurred before the officer’s
application for a search warrant of the business), that Richardson was under
surveillance based on the sheriff’s department’s suspicion of his drug dealing,
and that an officer observed Richardson initiate drug deals. This is sufficient.
      Richardson also argues that the alleged facts asserted by the officers call
into question the affidavit’s credibility.    First, Richardson contends that
although the officers stated in the warrant affidavit that they saw two drug
transactions occur in Just 4 U Fashion’s parking lot, the officers did not stop or
question the persons involved in the alleged transactions. Thus, Richardson
argues that the officers’ failure to pursue the people involved in the transactions
shows that these hand-to-hand transactions never occurred. Moreover, the
warrant affidavit is suspicious because it contains a file stamp date for May 21,
2007, three days after the search occurred.
      Richardson’s contentions involve factual determinations resolved by the
district court. The testimony showed that, before conducting the search, the
officers called Judge Marabella from Just 4 U Fashion for judicial authority to
conduct the search. It is not clearly erroneous for the district court, based on
the testimony before it, to have concluded that Judge Marabella authorized the
search of Richardson’s business on May 18 and the warrant affidavit was

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processed by the clerk’s office on May 21. Nor is it clearly erroneous for the
district court to have concluded that the credibility of the officers is not affected
by the fact that the officers did not immediately arrest the buyers of the
narcotics.
       In sum, the district court did not err in denying Richardson’s motion to
suppress the evidence seized in the execution of the May 18 warrant.11
                                            IV.
       Finally, we now take up Richardson’s fourth claim of error: that the
district court erred by violating his Sixth Amendment right to represent himself
at trial.
       Because we are addressing a constitutional right, we review de novo the
district court’s denial of Richardson’s motion. United States v. Joseph, 333 F.3d
587, 589 (5th Cir. 2003). The district court’s factual findings to support its
ruling are reviewed for clear error. United States v. Jones, 421 F.3d 359, 361
(5th Cir. 2005).
       A competent criminal defendant has a Sixth Amendment right to
represent himself at trial if he knowingly and intelligently waives his right to
counsel. Id. at 363; see also 28 U.S.C. § 1654. Furthermore, “forcing a lawyer
upon an unwilling defendant is contrary to his basic right to defend himself if
he truly wants to do so.” Faretta, 422 U.S. at 817. Before granting a defendant’s


       11
          In addition to the claims of error regarding the suppression of evidence, Richardson
also contends that the district court erred by not conducting a Franks hearing addressing the
factual circumstances surrounding the warrant affidavits. Franks, 438 U.S. at 154. Although
the district court did not conduct a formal Franks hearing, during the suppression hearings,
the district judge allowed Richardson to introduce any and all evidence he had that might
prove that the officers included false statements and misleading omissions in the warrant
affidavits. Thus, because the judge heard all of Richardson’s evidence and considered the
truth or falsity of the officers’ statements in the warrant affidavits during the suppression
hearings, Richardson’s rights were protected; the purpose of a Franks hearing was served;
and, consequently, the district court did not err. See United States v. Martin, 615 F.2d 318,
328 (5th Cir. 1980); accord United States v. Namer, 680 F.2d 1088, 1093 n.10 (5th Cir. 1982).


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request to proceed pro se, however, the court must establish that the defendant
“knows what he is doing and his choice is made with eyes open.” Joseph, 333
F.3d at 590 (citations omitted).      To determine whether a defendant has
effectively waived the right to counsel, the district court should consider various
factors, including the defendant’s “age, education, background, experience, and
conduct.” Id. The court must ensure that “the waiver is not the result of
coercion or mistreatment, and must be satisfied that the accused understands
the nature of the charges, the consequences of the proceedings, and the
practicality of waiving the right to counsel.” Id.
      Even so, the right of self-representation is limited by the trial court’s
responsibility to maintain order and safety and to prevent disruption and delay.
See United States v. Long, 597 F.3d 720, 726 (5th Cir. 2010); see also Martinez
v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000)
(“Even at the trial level, therefore, the government’s interest in ensuring the
integrity and efficiency of the trial at times outweighs the defendant’s interest
in acting as his own lawyer.”). A defendant’s request to represent himself at
trial may be rejected if it is intended to cause delay or some tactical advantage.
Chapman v. United States, 553 F.2d 886, 894 (5th Cir. 1977). However, we
consider a motion for self-representation timely so long as it is filed before the
jury has been impaneled. Id.
      An erroneous denial of the right of self-representation, if established,
requires reversal without further analysis for harmless error. United States v.
Majors, 328 F.3d 791, 794 (5th Cir. 2003).
      In addressing Richardson’s argument that he was constitutionally
entitled to represent himself, we begin by noting that it is uncontested on
appeal that Richardson was competent to represent himself and that
Richardson made a knowing and intelligent waiver of counsel. Furthermore,
Richardson repeatedly insisted that he wanted to proceed pro se, indicating the

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                                        No. 11-30151

voluntariness of his request. The district judge thoroughly fulfilled his duty to
warn Richardson, stating: “If you represent yourself, you’re going to be
convicted because, you know what? You know a little bit [about the law] that’s
causing you to think you know a lot. And thinking you know a lot is going to
put you in the Bureau of Prisons for a long, long time.” In spite of the district
court’s graphic warnings about the practical consequences of acting as his own
counsel, Richardson maintained throughout the hearing that he was aware of
the consequences and that he wished to represent himself.
       The Government makes the following arguments supporting the district
court’s denial of self-representation: that Richardson’s motion to represent
himself was untimely, that it was made for the purpose of delay, and that
Richardson waived his right to represent himself by being disruptive and
disorderly. The Government’s arguments have no merit.
       First, it is well established that a motion to represent oneself is timely so
long as it is made before the jury is impaneled. Chapman, 553 F.2d at 894-95.
Because Richardson filed his motion four days before trial, his motion was
timely. Second, he expressly stipulated that he was not seeking a continuance
or any other delay of the trial. In short, there is no substantial basis to contend
that Richardson’s motion was a diversionary tactic.
       Finally, there is no indication in the record that the district judge
determined that Richardson intended to be physically disruptive so as to
obstruct the trial. A review of the Faretta hearing transcript makes it quite
clear that the judge simply concluded that having professional counsel was a
wiser course of action that would make for a cleaner and fairer trial.12 The trial


       12
          We recognize that the district judge expressed concern that “based on the defendant’s
actions . . . and statements both in the in-camera proceeding as well as in open court, as well
as during the motions to suppress, that the defendant’s behavior – and I’m not talking about
trying to hurt someone – but his unwillingness to accept a ruling . . . will jeopardize his right
to a fair trial.” We understand the district court’s frustration. Pro se defendants are often

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                                       No. 11-30151

judge explained that “the real concern of the Court is injecting extraneous and
irrelevant subject matter into the record” and that “the defendant’s method of
insisting on what he believes to be the law and what he believes lawyers should
do or not do will interfere with his right to a fair trial.” This is not, however, a
sufficient basis to refuse a defendant the right to act as his or her own counsel,
nor is it equivalent to finding that a defendant will obstruct justice by being
disruptive. Faretta itself appears to address and resolve the instant argument,
holding that “technical legal knowledge” is “not relevant” to an assessment of
his knowing exercise of the right to defend himself. Faretta, 422 U.S. at 836.
       In sum, because Richardson knowingly and voluntarily filed the pro se
motion and because there was no constitutionally permissible reason to deny
Richardson the right to represent himself under Faretta and its progeny, we
hold that the district court erred in denying Richardson’s Sixth Amendment
right to self-representation and therefore each of his convictions and sentences
are vacated. Richardson is entitled to a new trial on all counts of the indictment
for which he was convicted; the acquittals on the two counts remain.
                                              V.
       To review our resolution of this appeal, we hold that the district court did
not err in denying Richardson’s motions to suppress the March 2 and May 18
search warrants. Moreover, because the district court considered all of the
evidence that would have been presented during a Franks hearing, the district
court did not err by denying Richardson’s motion for a separate hearing to



burdensome on a trial judge’s time, resources, and patience. Yet, a court cannot deny a motion
for self-representation for reasons that would be common to most untrained pro se criminal
defendants. Cf. United States v. Vernier, 381 F. App’x 325, 329 (5th Cir. 2010) (holding that
a defendant did not have the right to represent himself at trial when he “posed a risk of
violence and escape, . . . was defiant and troublesome, and . . . boasted that he wanted to go
out in a bloody confrontation, to disrupt his trial, and to make news”); accord Buhl v. Cooksey,
233 F.3d 783, 797 (3d Cir. 2000). Otherwise, the right to self representation would be
constructively abrogated.

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  Case: 11-30151       Document: 00511838278          Page: 17      Date Filed: 04/27/2012



                                       No. 11-30151

resolve his Franks claim.13 We therefore AFFIRM the district court’s denial of
Richardson’s motions to suppress and for a Franks hearing.
       However, the right to self-representation in a criminal trial is a
constitutional right under the Sixth Amendment.                         Here, Richardson
competently, knowingly, and intelligently invoked this right. Because there
was no constitutionally cognizable justification for denying Richardson’s right
to self-representation, we VACATE each of his convictions and sentences and
REMAND for further proceedings not inconsistent with this opinion.




       13
         In the event a new trial is conducted on remand, our disposition in this appeal of all
motions, which were presented to the district court before Richardson invoked his right to self-
representation, are unaffected by our vacating Richardson’s convictions and sentences on Sixth
Amendment grounds and will be controlling in any proceeding on remand.

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