                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 11, 2014
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                 Nos. 12-8084 and 13-8008
 v.                                           (D.C. No. 2:10-CR-00280-NDF-1)
                                                          (D. Wyo.)
 ERIC BEHRENS,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL, and KELLY, Circuit Judges.


      After a jury trial, Eric Behrens was convicted on one count of conspiracy to

possess with intent to distribute and to distribute methamphetamine, 21 U.S.C.

§§ 846, 841(a)(1), (b)(1)(A), and one count of possession with intent to distribute

methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C). He was sentenced to 240

months’ imprisonment on each count, to run concurrently, and supervised release

of ten years on the first count and six years on the second, also to run

concurrently. He appeals his conviction, arguing that the district court erred in



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
denying his motion to suppress and that his waiver of the right to counsel was

invalid. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                                    Background

A.    The Traffic Stop

      On August 29, 2010, a Minnesota State Trooper observed Mr. Behrens

driving a vehicle that appeared to have no rear license plate. 1 R. 69, 71. The

trooper initiated a traffic stop, and after exiting his patrol car and walking toward

Mr. Behrens’ vehicle saw a temporary registration tag from Wyoming in the rear

window. 1 R. 69-70. The trooper noticed the tag was extremely faded, torn and

tattered, but the expiration date was written in bold marker and was not faded. 1

Supp. R. 29-30. The trooper later testified that in Minnesota temporary tags are

“made to fade,” so that when they expire they are “almost unreadable” and easy

for law enforcement to identify. 1 Supp. R. 40-41. The trooper noticed that the

temporary tag was registered to “Leslie Healy,” and that the driver of the vehicle,

Mr. Behrens, was male. 1 Supp. R. 29-30. The trooper also noticed that the tag

appeared to be valid for 90 days, which he testified was longer than any period of

validity he had ever seen. 1. Supp. R. 30. The trooper testified that he suspected

the tag was fake or had been altered, or the vehicle stolen. 1 Supp. R. 36.

      After questioning Mr. Behrens and receiving less than satisfactory answers,

the trooper arrested him and obtained a warrant to search the vehicle (which Mr.

                                        -2-
Behrens does not challenge). 1 R. 71. The search resulted in the seizure of 160

grams of methamphetamine. Id.

      Mr. Behrens moved before trial to suppress all evidence seized as a result

of the search of his vehicle. 1 R. 56-57. The district court denied his motion,

finding no dispute that the traffic stop was reasonable at its inception, and that the

trooper had reasonable suspicion to detain and investigate Mr. Behrens. 1 R. 75-

77. The case proceeded toward trial.

B.    Mr. Behrens Waives His Right to Counsel

      On November 3, 2011, Mr. Behrens filed a motion to continue his trial, set

to begin four days later, asserting that his attorney was unprepared to try the case

and had been busy with another client’s six-week jury trial. 1 R. 301. The

district court denied the motion, noting that Mr. Behrens’ trial had been continued

multiple times before, and that counsel should have been prepared to try the case

by the previous trial date, August 29, 2011. 1 R. 305-07.

      On the opening day of trial, Mr. Behrens addressed the court and reiterated

his concern that his attorney was unprepared. 4 R. 101-02. He asserted that he

(Mr. Behrens) had not had adequate time to review discovery materials, that his

attorney had not prepared a witness list to his satisfaction, that his attorney had

not identified experts to call, and that his attorney’s ineffectiveness would “be

[his] downfall.” 4 R. 101-02. The attorney responded, “[T]here are things that I

would like to do in this case that I, quite frankly, haven’t done, and there are

                                         -3-
witnesses that . . . I may still try and call that I haven’t yet called or interviewed.”

4 R. 103. When pressed by the court (“I don’t quite know what you’re trying to

communicate”), the attorney continued: “[E]very lawyer wants more time. That’s

just the nature of the beast . . . . I have worked hard in [Mr. Behrens’] case. . . . I

am going to do my best to represent him zealously and aggressively and all of that

for the next five or six days.” 4 R. 104. After comments from the government,

Mr. Behrens’ attorney elaborated once more:

             The witnesses that Mr. Behrens would like me to contact
             and to work on are witnesses that, as the attorney
             making the decision in the matter . . . I wouldn’t contact
             them . . . . I do give my clients a great deal of
             autonomy. So if it were up to me, I wouldn’t call the
             witnesses . . . . If I sit here and I were to make the call
             as to what witnesses I would talk to or deal with or try
             to put on, there is one that I have not contacted that I
             will contact. The rest of them are people that he would
             like me to contact and put on, and I wouldn’t ordinarily
             be inclined to do so . . . .

4 R. 106-07. When asked about the “one” witness, the attorney responded, “[I]t

was a witness who was identified off and on. The importance of the witness

didn’t really strike me until today. And I will contact that witness tonight.” 4 R.

108.

       The court concluded that there had been adequate time for preparation, that

the matters Mr. Behrens took issue with were “strategic matters,” and that the

trial would proceed. 4 R. 109-10. Mr. Behrens then asked for a new lawyer, and

his attorney moved to withdraw. 4 R. 110. The court denied the motion, and Mr.

                                           -4-
Behrens, distraught, explained that a witness whose testimony he believed would

prove exculpatory was not being called. 4 R. 111. The proceedings continued.

      After jury selection, Mr. Behrens asserted his right to proceed without

counsel, stating that he was “the only one at this point qualified to represent my

life on the line.” 4 R. 295, 297. The court then questioned Mr. Behrens about his

decision to ensure it was knowing and voluntary. The court asked Mr. Behrens if

he had studied law, which he had not. 4 R. 297-98. The court then conducted a

colloquy about the charges, potential penalties involved, and the risks and

consequences of self-representation. 4 R. 298-303. Mr. Behrens was advised to

reconsider his decision, but he did not relent. 4 R. 303-05. After confirming that

his decision was knowing and voluntary, the court appointed Mr. Behrens’

attorney as stand-by counsel. 4 R. 308. In a written order, the district court

found that Mr. Behrens’ request for self-representation was unequivocal, timely,

and knowing and intelligent. 1 R. 311-14. Mr. Behrens was convicted on two of

three charges, and this appeal followed.



                                     Discussion

A.    Reasonableness of the Traffic Stop

      In reviewing the denial of a motion to suppress, we accept the district

court’s factual findings unless clearly erroneous and view the evidence in the

light most favorable to the government. United States v. Trestyn, 646 F.3d 732,

                                           -5-
741 (10th Cir. 2011). The ultimate determination of Fourth Amendment

reasonableness is a question of law we review de novo. Id.

      A traffic stop is a “seizure” under the Fourth Amendment and is analyzed

under the framework set out in Terry v. Ohio, 392 U.S. 1 (1968), for investigative

detentions. Trestyn, 646 F.3d at 741-42. That framework requires a stop to be

justified by objectively reasonable suspicion that the person detained has

committed or is about to commit a crime. United States v. De La Cruz, 703 F.3d

1193, 1196 (10th Cir. 2013). We look first to whether the detention was justified

at its inception, and second to whether the detention was “reasonably related in

scope” to the circumstances justifying it. Trestyn, 646 F.3d at 742. Once an

officer determines that a traffic violation has not occurred, the driver must be

allowed to proceed without further delay. Id.

      Mr. Behrens does not challenge the reasonableness of the stop at its

inception. Aplt. Br. 20. Instead, he argues that the stop became unreasonable

when the trooper’s suspicions should have been dispelled—i.e., when the trooper

saw that the car had a valid temporary tag in its rear window and learned that the

tag was validly registered to Leslie Healy. Id. at 20, 23.

      We cannot agree. Mr. Behrens is correct that continued detention violates

the Fourth Amendment when an officer’s suspicions are dispelled, and that we

have more than once found as much in cases involving temporary registration tags

or missing license plates. See Trestyn, 646 F.3d at 743-44; United States v. Pena-

                                         -6-
Montes, 589 F.3d 1048, 1054-55 (10th Cir. 2009); United States v. Edgerton, 438

F.3d 1043, 1051 (10th Cir. 2006); United States v. McSwain, 29 F.3d 558, 561

(10th Cir. 1994). But, given the district court’s factual findings, the trooper’s

suspicion of a fraudulent temporary tag was not reasonably dispelled in these

circumstances. The court credited the trooper’s testimony about his observations

of the tag, its condition, and his experience with faded tags being illegally reused.

1 R. 75-76. As such, the trooper had a “particularized and objective basis for

suspecting” that the temporary tag was a fake, or that the car was stolen. See

United States v. Winder, 557 F.3d 1129, 1133 (10th Cir. 2009) (quoting United

States v. Cortez, 449 U.S. 411, 417-418 (1981)) (internal quotation marks

omitted). The registration to Leslie Healy was not enough to dispel the trooper’s

suspicion, and he was justified in questioning Mr. Behrens to determine if he was

Healy, or at least had some connection with Healy. Accordingly, continued

detention and investigation was reasonable under the Fourth Amendment.

B.    Waiver of the Right to Counsel

      We review the validity of a waiver of the right to counsel de novo and the

underlying factual findings for clear error. United States v. Turner, 287 F.3d 980,

983 (10th Cir. 2002). A trial court must be satisfied of three factors before

allowing a criminal defendant to exercise his right to proceed pro se: the

defendant must voluntarily assert his right to represent himself; the waiver must

be knowing and intelligent; and the waiver must be timely. Id.

                                         -7-
      Mr. Behrens presents two theories as to why his waiver was invalid. First

he argues that his waiver was not voluntary because he was forced to choose

between appearing pro se or proceeding with unprepared counsel. Aplt. Br. 26-

29. He also argues that his waiver was not “knowing and intelligent” because the

district court failed to inform him of the nature of the conspiracy charge and

possible defenses. Id. at 29-32. We address each theory in turn.

      “A defendant forced to choose between incompetent or unprepared counsel

and appearing pro se faces ‘a dilemma of constitutional magnitude.’” United

States v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987) (quoting Maynard v.

Meachum, 545 F.2d 273, 278 (1st Cir. 1976)). Thus, a waiver of the right to

counsel is not voluntary if the defendant shows that he was entitled to a

substitution of counsel. Id. To be entitled to new counsel, “the defendant must

show good cause, such as a conflict of interest, a complete breakdown of

communication or an irreconcilable conflict which leads to an apparently unjust

verdict.” Id. (quoting McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981)).

      Mr. Behrens was not entitled to substitute counsel. There was no conflict

of interest, breakdown of communication, or irreconcilable conflict between Mr.

Behrens and his attorney. And while these grounds for substitution are not

exhaustive, their absence supports the district court’s finding that Mr. Behrens’

concerns were primarily strategic; and counsel’s refusal to structure a defense

precisely as the defendant directs is not good cause for substitution of counsel.

                                        -8-
Id. at 956. Mr. Behrens’s case is analogous to Padilla, in which we held the

defendant’s complaint that his attorney refused to pursue a particular defense

theory was insufficient to warrant substitute counsel, and thus his decision to

proceed pro se was voluntary. Id. at 955-56.

      We have, however, distinguished in this context between complaints about

legal strategy and complaints about preparation. Sanchez v. Mondragon, 858 F.2d

1462, 1466 (10th Cir. 1988), overruled on other grounds by United States v.

Allen, 895 F.2d 1577 (10th Cir. 1990). But while Mr. Behrens complained

extensively of his attorney’s lack of preparation, and the attorney asserted he had

been preoccupied with other matters, the record does not reflect that he was

incapable of providing effective representation. The district court inquired into

the details of Mr. Behrens’ complaint as it was required to do. See United States

v. Silkwood, 893 F.2d 245, 248 (10th Cir. 1989). The exchange that followed

indicates that the attorney would have provided constitutionally adequate

representation, notwithstanding the disagreement on some aspects of trial strategy

and his request for more time to accommodate Mr. Behrens’ requests (with which,

in his professional judgment, he did not agree). Counsel was not unfamiliar with

the case, as he had represented Mr. Behrens since 2010, 1 R. 36, filed the motion

to suppress, 1 R. 56-57, and planned to call at least two witnesses at trial, 4 R.

134-35. As the dissent notes, the primary evidence of counsel’s claimed

unpreparedness is that he had yet to contact one witness whose importance he had

                                         -9-
not yet realized. Whether this delayed realization was the result of devoting time

to other matters or his own misapprehension is not clear. But the record reflects

that counsel did have an opportunity to contact that one witness, albeit at the last

minute. 4 R. 108. In the reality of trial and uncertain proof, it is not unheard of

to contact witnesses during the proceedings, as realizations such as this are made.

In our view, counsel could have provided reasonably effective assistance to Mr.

Behrens. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

      Although Mr. Behrens was dissatisfied with his attorney, he does not have

an absolute right to counsel of his choice, nor a right to have counsel follow his

instructions to the letter. Padilla, 819 F.2d at 956. Because he had the choice of

retaining present and competent counsel, Mr. Behrens’ decision to proceed pro se

was voluntary. See id. at 955.

      Next, Mr. Behrens argues that his waiver was not “knowing and

intelligent.” A waiver is knowing and intelligent if the defendant “was

reasonably informed by the court of the hazards of self-representation and had

sufficient understanding of those hazards.” Turner, 287 F.3d at 984. It is the

responsibility of the trial judge to ensure that a waiver is knowing and intelligent.

Id. at 983. The judge must ensure that the defendant understands “the nature of

the charges, the statutory offenses included within them, the range of allowable

punishments thereunder, possible defenses to the charges and circumstances in

mitigation thereof, and all other facts essential to a broad understanding of the

                                        - 10 -
whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724 (1948).

      Mr. Behrens asserts that because the district court failed to discuss the

nature of his conspiracy charge or any possible defenses with him, his waiver

cannot be knowing and intelligent. But we have described the Von Moltke factors

listed above as an ideal inquiry, United States v. Willie, 941 F.2d 1384, 1388

(10th Cir. 1991), and have stated that no precise litany of questions must be asked

of a defendant seeking to waive the right to counsel, Turner, 287 F.3d at 983.

The relevant inquiry focuses on whether the defendant was “aware of the dangers

and disadvantages of self-representation,” considering the record as a whole. See

Faretta v. California, 422 U.S. 806, 835 (1975); United States v. DeShazer, 554

F.3d 1281, 1288 (10th Cir. 2009).

      Having reviewed the record, we are satisfied that Mr. Behrens was aware of

the nature of the charges against him and the consequences of his decision to

proceed without counsel. While the district court did not suggest any defenses,

its failure to discuss that issue on the record does not warrant reversal because the

surrounding facts and circumstances indicate that Mr. Behrens understood his

rights and the risk he was taking. See Willie, 941 F.2d at 1388-89. The same is

true of the district court’s explanation of the conspiracy charge. We note that Mr.

Behrens had previously pled guilty to both the conspiracy and one possession

charge (later withdrawn), and acknowledged that he understood the nature and

elements of both crimes. 2 R. 26. When he entered that plea, the court explained

                                        - 11 -
the elements of each crime. 4 R. 1323-24. As the case progressed to trial, the

court none too strongly and repeatedly informed Mr. Behrens of the dangers of

self-representation. The court followed a model set of questions in its colloquy

with Mr. Behrens, see Fed. Judicial Ctr., Benchbook for U.S. District Court

Judges 6-7 (6th ed. 2013), and then it allowed him to make his choice. 4 R. 298-

308. We find that Mr. Behrens’ waiver of the right to counsel was knowing and

intelligent.

       AFFIRMED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       - 12 -
United States v. Behrens, No. 12-8084

EBEL, J., concurring in part and dissenting in part

       I agree with the majority’s conclusion that the traffic stop and subsequent

detention of Mr. Behrens was justified by a reasonable articulable suspicion of unlawful

activity and, therefore, lawful. I therefore concur in affirming the district court’s denial

of Mr. Behrens’ motion to suppress. I also agree with the majority’s conclusion that Mr.

Behrens knowingly and intelligently waived his right to court-appointed counsel. Mr.

Behrens was thoroughly advised both of the advantages of being represented by an

attorney and of the dangers of proceeding pro se, and our precedent requires no more or

no less. I cannot agree, however, with the majority’s conclusion that Mr. Behrens’

waiver was likewise voluntarily made. In the face of his attorney’s unpreparedness, the

record makes clear that Mr. Behrens felt he had no choice but to waive his court-

appointed counsel and proceed to trial pro se. His decision to represent himself was not

voluntarily made, in other words, because waiving representation by unprepared counsel

was merely the lesser of two evils, and thus not truly voluntary. I must therefore dissent

from the majority’s conclusion that Mr. Behrens’ Faretta waiver was valid.

                                              *

       This court has long held that a defendant’s decision to represent himself is not

voluntary if his only other option is to proceed to trial with “incompetent or unprepared

counsel.” United States v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987). Such a “choice”,

we have recognized, presents “a dilemma of constitutional magnitude,” id. (internal

quotation marks omitted), and is really no choice at all: the defendant must either face the

                                         Page 1 of 10
beast alone or cross his fingers and hope that his counsel’s failings will not hinder his

defense. In such a situation, the defendant will be caught between a rock and a hard

place—somewhere between Powell v. Alabama, 287 U.S. 45 (1932) and Strickland v.

Washington, 466 U.S. 668 (1984)—and no matter which option he chooses, his

fundamental right to a fair trial has not been preserved. Although a pro se defendant

typically “lacks both the skill and knowledge adequately to prepare his defense,” Powell,

287 U.S. at 69, so too does the lawyer who fails to fulfill his “duty to bring to bear such

skill and knowledge as will render the trial a reliable adversarial testing process.”

Strickland, 466 U.S. 688. To put it another way, while “[i]t is undeniable that in most

criminal prosecutions defendants could better defend with counsel’s guidance than by

their own unskilled efforts,” Faretta v. California, 422 U.S. 806, 834 (1975), that

presumption falls away when the defendant’s court-appointed counsel is unprepared or

incompetent. Under this court’s precedent, then, if a defendant can demonstrate that his

court-appointed counsel was incompetent or unprepared, he will have had “good cause

for his dissatisfaction and his waiver of counsel [will] not be voluntary.” Sanchez v.

Mondragon, 858 F.2d 1462, 1467 (10th Cir. 1988), overruled on other grounds by United

States v. Allen, 895 F.2d 1577 (10th Cir. 1990).

       The majority does not disagree but concludes that Mr. Behrens has not shown

good cause on this record that his counsel was constitutionally inadequate. Tracking

language from this court’s decision in Padilla, the majority argues that Mr. Behrens has

not shown good cause because “[t]here was no conflict of interest, breakdown of

communication, or irreconcilable conflict between Mr. Behrens and his attorney.” Maj.

                                        Page 2 of 10
Op., at 8. The lack of such factors, however, is a red herring because Padilla made clear

that such factors were not exclusive, see 819 F.2d at 955, and Mr. Behrens has never

contended that those particular factors motivated his decision to represent himself at trial.

His argument throughout has been that his waiver was motivated by his more

fundamental concern that his court-appointed counsel was not adequately prepared to

mount an effective defense at trial. This weakens much of the government’s argument

because, as this court recognized in Sanchez, there is an important distinction between

waiving counsel because he will not “pursue a certain line of defense,” which is typically

not a legitimate ground for dissatisfaction, and rejecting counsel because he is “not

sufficiently prepared,” which is a legitimate ground for dissatisfaction. See 858 F.2d at

1466-67. Simply put, the reliance on Padilla is inapposite: “the issue here . . . is not legal

strategy, but preparation.” Id. at 1466.

         The majority comes to acknowledge this distinction, but it maintains that Mr.

Behrens’ attorney was not unprepared because he “was not unfamiliar with the case, as

he had represented Mr. Behrens since 2010, filed the motion to suppress, and planned to

call at least two witnesses to trial,” see Maj. Op., at 9 (internal citations omitted). As an

initial matter, a general familiarity with a case is not the same as being prepared to take

that case to trial.1 A more fundamental problem with the majority’s analysis, however, is

that it places too much weight on what Mr. Behrens’ counsel did, and not enough

1
 To this end, the majority appears to have fallen into a similar trap as the district court did when it denied Mr.
Behrens’ motion to continue on the ground that his “counsel could have been prepared through the exercise of due
diligence” and thus “should have been prepared to try this case for several months,” see 1 R. 306-07 (emphasis
added). The question, of course, is not whether Mr. Behrens’ court-appointed counsel could or should have been
prepared based on his past relationship with the case, but is whether his attorney was, in fact, prepared to provide a
competent and effective defense at trial.

                                                    Page 3 of 10
emphasis on what he failed to do. The gravamen of Mr. Behrens’ argument is that his

attorney had failed to contact a witness who was crucial to the defense’s theory of the

case. If true, it is simply not relevant that Mr. Behrens’ counsel was appointed in 2010,

or filed a motion to suppress, or even planned to call two witnesses other than the witness

who Mr. Behrens alleges his attorney failed to contact or investigate. The only relevant

questions are whether Mr. Behrens’ counsel in fact failed to contact a crucial defense

witness, and whether that deficient pre-trial preparation was sufficient to render Mr.

Behrens’ Faretta waiver involuntary. On this record under the prevailing evidentiary

rules, we must answer both questions in the affirmative; we have no choice, therefore, but

to reverse and remand for a new trial.

                                             **

       Four days before his trial was set to begin, Mr. Behrens received a phone call from

his attorney who relayed that he (the attorney) was not prepared for trial and wanted to

know if Mr. Behrens would be willing to postpone the matter. See 4 R. 102. Mr.

Behrens obliged, as any defendant presumably would when so informed by his counsel,

and his attorney moved for a continuance, asserting that he was “currently involved in

[different] multi-week, multi-defendant case” and that he thus needed “additional

preparation time in order to properly represent Mr. Behrens.” 1 R. 304. Although the

district court denied the continuance on the ground that Mr. Behrens’ attorney “could”

and “should” have been prepared for trial, it never determined that Mr. Behrens’ attorney

was in fact prepared to present Mr. Behrens’ defense. Not surprisingly, therefore, that

order did little to allay Mr. Behrens’ now well-founded fear that he was heading to trial

                                         Page 4 of 10
with counsel who had just informed him that he was not adequately prepared to present

his defense. In his next available chance to personally address the court, Mr. Behrens

rose midway through voir dire and conveyed his “belie[f] that [his attorney] [wa]s not

prepared for this trial whatsoever.” 4 R. 101. According to Mr. Behrens, that

unpreparedness was palpable even before his attorney had admitted it: among other

things, it was manifested in the fact that he had repeatedly urged Mr. Behrens to plead

guilty, had forgot to bring his discovery files to their consultations on multiple occasions,

and had failed to contact both his state attorney and certain witnesses that were

“prominent to [his] innocence.” Id. His attorney’s unpreparedness, Mr. Behrens pleaded,

“will be my downfall.” Id. at 102.

       When the district court gave Mr. Behrens’ attorney a chance to respond to Mr.

Behrens’ concerns, his attorney’s colloquy exasperated rather than mitigated those

concerns, as the majority suggests. After responding that “there are things that I would

like to do in this case that I, quite frankly, haven’t done,” he noted specifically that,

“there are witnesses . . . that I haven’t yet called or interviewed.” 4 R. 103. He

continued, “I will do the best I can for Mr. Behrens. But the . . . facts are that for the last

two months I have been working on other matters. And I’m going to work for Mr.

Behrens, but I can understand his concerns.” Id. When pressed by the district court to

explain “what you’re trying to communicate in terms of the status of Mr. Behrens’ case

and his ability to go forward with a fair and adequate defense,” id. at 104, counsel

responded, “I am going to do my best to represent him zealously and aggressively and all

of that” but reiterated that “I filed the motion [to continue] like Mr. Behrens allowed me

                                         Page 5 of 10
to do, and I have nothing else . . . unless the Court has any questions for me.” Id. at 104-

05.

       The government was then given a chance to respond, and its characterization of

the situation is also telling. Recognizing the distinction between trial strategy and

preparation discussed above, the prosecutor began by suggesting that district court might

be misperceiving Mr. Behrens’ argument: “just because Mr. Behrens and [counsel] may

have strategic differences, that’s not a valid complaint. But when [counsel] makes a

statement that there are witnesses he wishes he could have had time to speak to, that

concerns me.” 4 R. 105. She continued, “[w]hether they’re called or not, I don’t know if

that makes a difference, even if Mr. Behrens disagrees. But certainly [counsel] should

have an opportunity to speak to these people to make that determination.” Id. at 105-06

(emphasis added). At that point, Mr. Behrens’ attorney rose once more and

acknowledged that, although he and Mr. Behrens had disagreed over certain strategic

matters (including whether to call particular witnesses), they agreed that “there [wa]s one

[witness] that I have not contacted that I will contact.” Id. at 107. When the court

inquired whether that witness “was identified today,” counsel responded, “No, it was a

witness who was identified off and on. The importance of the witness didn’t really strike

me until today. And I will contact that witness tonight.” Id. at 108. He continued, “the

witness that I am going to contact tonight could be an important witness based on my

theory of the case, and I will be contacting him tonight.” Id. at 109 (emphasis added).

       After both sides were given the opportunity to weigh in, the district court

characterized the issue as follows, “[i]t seems as though counsel’s position is to contact

                                        Page 6 of 10
the one witness to see whether that witness is an important witness to the defense, and we

may hear about that later, or we may not, depending upon what that contact discloses.” 4

R. 109. Despite acknowledging that some pretrial investigation still needed to be

conducted, the district court held, without further explanation, “that there’s no good

reason, other than perhaps a dispute between client and counsel over trial strategy

matters, which are soundly invested in the counsel and not the client, as to why this

matter should proceed.” Id. at 110. At that point, Mr. Behrens’ counsel moved to

withdraw, and the district court denied that motion as well, asserting, “I’m not convinced

that there is an attorney within our respected Wyoming State Bar that could do a better

job of advocacy.” Id. The next day, Behrens asserted his right to represent himself and

explicitly tied that decision to his attorney’s unpreparedness: “At this point I feel that due

to the fact that we could not have an extension for my attorney to prepare . . . I need to at

this point go ahead and represent himself.” Id. at 297.

                                             ***

       In light of the on-the-record concerns that Mr. Behrens, his attorney, and even the

government voiced about counsel’s need to conduct additional pretrial investigation, I

simply cannot agree with the majority that the record reflects that Mr. Behrens’ attorney

was prepared for trial. It is undisputed that counsel’s preoccupation with another case

prevented him from interviewing a potential defense witness. It is similarly undisputed

that counsel failed even to contact that potentially important witness despite Mr. Behrens’

repeated urgings to the contrary. And it is undisputed that counsel recognized that the

potential witness could be crucial to, not just Mr. Behrens’ theory of the case, but to his

                                         Page 7 of 10
own theory of the case. It is undisputed, in other words, that Mr. Behrens’ attorney was

“insufficiently prepared” to represent Mr. Behrens at trial, and for that reason, Mr.

Behrens had “good cause for his dissatisfaction” and “his waiver of counsel [c]ould not

be voluntary.” See Sanchez, 858 F.2d 1467; accord Fisher v. Gibson, 282 F.3d 1283,

1291 (10th Cir. 2002) (“In order to make the adversarial process meaningful, counsel has

a duty to investigate all reasonable lines of defense.”); Towns v. Smith, 395 F.3d 251,

258 (6th Cir. 2005) (“This duty includes the obligation to investigate all witnesses who

may have information concerning his or her client's guilt or innocence.”).2

       While the majority states that the district court characterized Mr. Behrens’

complaint as a mere disagreement over trial strategy, that overlooks the fact that the

district court also found that Mr. Behrens’ attorney still needed to “contact the one

witness to see whether that witness [was] an important witness to the defense,” see 4 R.

109. Although the decision to call any given witness is a matter of trial strategy, reserved

to the sound discretion of a defendant’s attorney, “[t]he decision to interview a potential

witness is not a decision related to trial strategy. Rather, it is a decision related to


2
 The majority suggests that “the record reflects that counsel did have an opportunity to
contact that one witness,” Maj. Op., at 11 (emphasis in original), but to be clear, the
record merely reflects that counsel assured the court that he intended to contact the
witness. See 4 R. 108. We have no idea whether counsel in fact contacted, let alone had
the time to interview, the witness because the district court never followed up on the
matter at Mr. Behrens’ Faretta hearing. See 4 R. 297-308. In any event, it is no answer
to assert that counsel intended to contact that potentially important witness after the jury
had been selected and the night before he was to present Mr. Behrens’ defense. See
Fisher, 282 F.3d at 1296 (“Porter's decision not to undertake substantial pretrial
investigation and instead to ‘investigate’ the case during the trial was not only
uninformed, it was patently unreasonable.” (emphasis in original)).

                                          Page 8 of 10
adequate preparation for trial.” Chambers v. Armontrout, 907 F.2d 825, 828 (8th Cir.

1990) (emphasis added). Indeed, one would assume it is beyond peradventure that there

is nothing strategic about an attorney’s failure to contact a witness who his client has

repeatedly urged him to contact and who he himself recognizes could be an important

witness under his theory of the case.

       It is alas important to note that it was the district court, and not defense counsel,

who asserted that counsel’s failure to interview the potentially exculpatory witness was a

matter of trial strategy. For his part, counsel made clear that his failure to investigate was

not the result of a deliberate choice, let alone a grand plan, but was merely a consequence

of the fact “that for the last two months [he had] been working on other matters” and

“[t]he importance of the witness didn’t really strike [him] until [the morning of voir

dire].” 4 R. 103, 108. As someone who sits by designation at the district court from time

to time myself, I sympathize with the district court’s desire to move her docket along, and

“[t]he prompt disposition of criminal cases is to be commended and encouraged.”

Powell, 287 U.S. at 59. “But in reaching that result a defendant, charged with a serious

crime, must not be stripped of his right to have sufficient time to advise with counsel and

prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated

justice . . . .” Id. The district court may well have been correct that Mr. Behrens’

attorney could or should have been prepared for trial, but the record makes clear that he

was not actually prepared to properly represent Mr. Behrens at trial.

       On this record, we must credit Mr. Behrens’ belief that his only hope was to

represent himself rather than to proceed with unconstitutionally prepared counsel. That

                                         Page 9 of 10
negates any suggestion that he voluntarily waived his right to court-appointed counsel.

      I respectfully dissent.




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