                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4871


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES EUGENE VENABLE, a/k/a James E. Venable,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00199-RLW-1)


Submitted:   February 23, 2010            Decided:   April 14, 2010


Before KING and GREGORY, Circuit Judges, and Joseph R. GOODWIN,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.


Reversed and remanded by unpublished opinion.      Judge Gregory
wrote the opinion, in which Judge King and Judge Goodwin joined.


Pleasant S. Brodnax, III, LAW OFFICE OF PLEASANT S. BRODNAX,
Washington, D.C., for Appellant.       Neil H. MacBride, United
States   Attorney,  Alexandria,   Virginia,  Richard D.  Cooke,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

     Defendant       James     Eugene    Venable             (“Venable”)        appeals       his

conviction, claiming that the district court violated his Sixth

Amendment    right      to   counsel    in       not    obtaining         a    voluntary      and

knowing waiver and forcing him to proceed pro se.                               We agree and

reverse his conviction.



                                             I.

     On April 21, 2008, Venable was indicted on one count of

possession    of    a    firearm/ammunition             by    a    convicted         felon,    in

violation    of    18    U.S.C.   § 922(g)(1).               One    day       later,   Venable

received appointed counsel from the Federal Public Defender’s

Office.     He then pled not guilty.                    In a motion dated May 20,

2008,     Venable       requested      new        appointed        counsel,          asserting

numerous    claims,      including     that:           (1)    “months         have    gone    by”

without counsel doing as he wanted; (2) counsel refused to call

Venable’s    former       attorney      about          immunity      Venable         allegedly

received at the Commonwealth’s Attorney’s Office; (3) counsel

refused to investigate Venable’s claim that he received immunity

when his home was searched; (4) counsel and Venable “can’t see

eye to eye”; and (5) he “[found] it very hard to communicate




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with counsel” and wanted a new attorney not from the Federal

Public Defender’s Office.            J.A. 23-24. 1

     At the hearing on his motion, Venable stated that he did

not “feel comfortable” with counsel and that, although he had

“nothing personal against” counsel, they were “not seeing eye-

to-eye on things.”               J.A. 29.         After hearing several similar

statements, the court denied Venable’s motion for new counsel,

explaining    that       while    Venable     did    have    a     right   to   appointed

counsel,     he    did     not    have    a   right     to    counsel      he   “feel[s]

comfortable       with,”    and    that    the      court    had    appointed     capable

defense counsel.         J.A. 30.        Without conducting any colloquy with

Venable about waiver of his right to counsel and without giving

Venable the choice of proceeding with the counsel the court had

appointed, the court ordered Venable to proceed pro se:

     Well Mr. Venable, the Constitution guarantees you the
     right to have counsel appointed.      The Court very
     carefully appoints lawyers that are competent and
     capable of handling the type case that is brought
     against you.    The Constitution also gives you an
     absolute right to represent yourself, and my policy
     has always been, and I stick to it in any number of
     these cases, that where I have appointed competent
     counsel to represent a defendant there is nothing in
     the Constitution that says that you are entitled to a
     lawyer that agrees with you, that you feel comfortable
     with, compatible with, that you have personality fits
     and that sort of thing.     So I am now denying your
     motion to replace the counsel that you have, but I

     1
       Citations to J.A. __ refer to the Joint Appendix filed by
the parties upon appeal.




                                              3
       will keep her in the case on a stand-by basis.     And
       you are now pro se, and you get to represent yourself.
       And she is not to participate in your case unless you
       specifically request her.

J.A.   29-30.         At    the     conclusion     of    the   hearing,      the    court

reiterated      its    ruling       on    the     motion    for    new    counsel    and

encouraged him to enter into a plea agreement:

       Mr. Venable let me suggest that it would be in your
       best interest to read what appears to be a plea
       agreement that has previously been negotiated, but
       read it over and see if it serves your best interest,
       because you get so many advantages out of something
       like this that you can’t believe it.     And you will
       have stand-by counsel, and she will talk to you. And
       I am satisfied that she is more than competent to
       handle cases of this nature.   She has had any number
       of them before me and my colleagues, so your motion
       for new counsel is denied. You are basically now pro
       se, but you will have stand-by counsel. And you can,
       if you feel that you are getting in over your head and
       you need her assistance, she will be required to give
       it to you. Do you understand that?

J.A. 35.       Although Venable responded that he understood, the

court never warned him of the dangers of self-representation and

never indicated that Venable had a choice to continue with his

appointed counsel rather than represent himself.                           In an order

issued later that day, the court clarified that Venable could

continue to be represented by appointed counsel.                        J.A. 37.

       After    the        government      filed     a     superseding       indictment

increasing      the        number    of    guns     Venable       was    charged     with

possessing, Venable appeared pro se before the district court to

be   arraigned.        At     the    arraignment,        Venable   again     complained



                                            4
about standby counsel, “I had asked counsel to help me get my

witnesses and all that, and she stated when we was [sic] here

that I am on my own, that she wasn’t going to help me.”                          J.A.

48.    The court responded that it had ordered standby counsel to

carry out Venable’s requests for assistance and that Assistant

Federal    Defender   Robert       Wagner    (“Wagner”)     agreed     his    office

would assist Venable.

       On July 7, 2008, Venable filed one of his many pro se

motions, this time asking for new standby counsel.                      He stated

that he “became Pro Se with out requesting for such status, and

the ineffective counsel . . . became standby counsel; who still

refuses to help Venable.”            J.A. 51.      On a separate motion the

same day, entitled “Motion to Object,” Venable claimed that he

“[a]t no time elected to proceed Pro Se, Nor [sic] did he ever

waived [sic] his Federal Constitutional Amendment under the 6

Six [sic] Amendment Right.”          J.A. 56.

       On July 23, 2008, the appointed standby counsel moved to

withdraw    because        “the    attorney-client         relationship         [had]

irreparable [sic] dissolved.”            J.A. 90.    She informed the court

that    responding    to    Venable’s        allegations    would      breach    the

attorney-client privilege, and that such response would “likely

be detrimental to the client.”           J.A. 89.

       Venable   appeared    pro    se   the   following    day   on    a    motions

hearing and to be arraigned on a second superseding indictment,


                                         5
which again increased the number of guns charged.              The court

granted standby counsel’s motion to withdraw but added “for the

record” that counsel had provided effective assistance.             J.A.

95.      The court then appointed Wagner as standby counsel and

turned to Venable’s motion to suppress.        After a confused cross-

examination of a government witness and an order that cross-

examination end, Venable stated that, “I would like to point out

that I am not an attorney.        And I am fighting hard to try to

make sense of all of this.”      J.A. 124.     At the conclusion of the

hearing, Wagner raised concern that he “[didn’t] believe that

[Venable] ever specifically requested that he represent himself”

and instead had simply asked for new appointed counsel.             J.A.

131.   The court held that:

       I ruled earlier that [Venable] had a right to
       represent himself, or he had a right to work with
       counsel.   He elected not to work with counsel that I
       had ruled was competent to represent him.   And so it
       follows that I then ruled that he elected to go pro
       se. And while he didn’t specifically say those magic
       words, this Court ruled that his actions speak louder
       than words.

J.A. 131-32.    Venable himself responded that he was “asking for

an attorney.”     J.A. 132.     The court told Venable that he was

really    insisting   on   a   right   to    pick-and-choose   appointed

counsel, to which Venable stated, “That ain’t what I did.”          J.A.

133.   However, the court continued:

       That is the sense of it. But you have no such right.
       You are entitled to a competent lawyer that the Court


                                   6
       designates to represent you. Once that designation is
       made, smart defendants will cooperate with their
       competent lawyer and let that lawyer represent them
       and take charge of the case.    You elected not to do
       that, so I have ruled because you refused to abide by
       the rules of the Court and accept a competent
       attorney[,] then the only other option is to proceed
       pro se.   And that is the option that you now have.
       And I won’t ever readdress the issue of you getting
       another lawyer. Do you understand that?

J.A.   133.         Venable    replied,    “No,      sir.”         The    court,      after

ordering the court in recess, stated that Venable “still [had]

the option to cooperate with Mr. Wagner.”                   J.A. 133.

       After seven additional pro se motions, the court issued an

order in which “the Court FINDS that at a status hearing held on

June 4, 2008, the defendant waived his Sixth Amendment right to

counsel      and    irrevocably    chose      to    represent      himself      pro   se.”

J.A. 135.          On August 11, 2008, Venable proceeded to represent

himself at trial.           After proceedings in which Venable constantly

expressed his confusion, the jury found him guilty.

       Wagner subsequently filed a motion requesting that Venable

undergo      a     mental     health    evaluation          for    the      purpose     of

determining mitigation evidence at sentencing.                           On January 21,

2009, the court ordered a mental health evaluation of Venable.

During the sentencing hearing, the government informed the court

that   the    evaluation      found    that    Venable      “has    a     low   level   of

intellectual        functioning.       And     it    says    his    problem-solving,

reasoning, and judgment are likely to be impaired as a result.”



                                           7
J.A. 289.      The report concluded that “given [Venable’s] limited

cognitive      functioning[,]        self-representation             may     not   be   a

realistic      goal.”    J.A.       346.         Based   on   its    assessment     that

Venable   suffered      from    severe      mental       deficiencies,       the   court

granted Venable a downward variance from the guideline range of

seventy-seven to ninety-six months to a sentence of sixty months

in prison.

     Venable timely appealed his conviction, claiming that the

court violated his Sixth Amendment right to counsel in failing

to obtain a valid waiver and forcing him to proceed pro se.



                                           II.

     “Determination of a waiver of the right to counsel is a

question of law, and thus we review it de novo.”                       United States

v. Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997) (citation

omitted).



                                           III.

                                            a.

     “Although a defendant may waive his right to counsel, the

courts entertain every reasonable presumption against the waiver

of this fundamental constitutional right.”                          United States v.

Johnson, 659 F.2d 415, 416 (4th Cir. 1981).                         “In order for a

waiver    to    be   valid,    it    must        be   shown   that     the    defendant


                                            8
intentionally relinquished a known right.”                   Id.    Thus, “[w]aiver

of the right to counsel, as of constitutional rights in the

criminal    process    generally,        must      be   a   ‘knowing,   intelligent

ac[t]     done     with    sufficient          awareness       of    the    relevant

circumstances.’”       Iowa v. Tovar, 541 U.S. 77, 81 (2004) (quoting

Brady v. United States, 397 U.S. 742, 748 (1970)).

     It is the government’s burden to prove that Venable waived

his right to counsel.         See Brewer v. Williams, 430 U.S. 387, 404

(1977).     Here, the government concedes that because the district

court “did initially err in ordering the defendant to represent

himself without giving him the choice of retaining his existing

counsel,     and   never     provided     any       meaningful      explanation   to

defendant     about    the    dangers         of    self-representation,      . . .

defendant’s      conviction       must   be    vacated.”        Respt.’s    Br.   32.

Because the government agrees that Venable did not intentionally

and knowingly waive his right to counsel, it follows that it did

not meet its burden of proving the validity of such waiver.

Therefore,    although     typically      the      government’s      confession   of

error “does not relieve this Court of the performance of the

judicial function,” Young v. United States, 315 U.S. 257, 258

(1942), the admission of error in this case requires that we

reverse Venable’s conviction.

     Even    putting      aside    the   government’s         concession,   Venable

plainly did not waive his right to counsel.                         Nothing in the


                                          9
record can be construed as a voluntary waiver.                   The basis for

the court’s forcing Venable to proceed pro se was a handwritten

motion in which Venable expressed discomfort with his appointed

counsel.     Nothing in this note or Venable’s argument to the

court demonstrates a clear and unequivocal waiver of the right

to counsel.       Venable not once expressed a desire to represent

himself.      Rather,    Venable     repeatedly    asserted     that    he    never

requested to proceed pro se and did not understand why he had no

representation.

     Even if he had expressed a desire to represent himself,

such waiver would not have been knowingly and intelligently made

because the court failed to inform Venable of his options or

conduct any inquiry into whether Venable waived the right to

counsel.    While neither the Supreme Court nor the Fourth Circuit

has mandated the exact type of inquiry a court must conduct to

determine if a defendant has waived the right to counsel, see

Tovar, 541 U.S. at 88, some inquiry must occur “so that [the

district judge] may know, and the record may demonstrate, beyond

cavil, that an accused knows that he has a right to employ and

consult    with   an   attorney    . . .    and   that    he   voluntarily     and

intelligently     relinquishes       that   right.”        Townes      v.    United

States, 371 F.2d 930, 934 (4th Cir. 1966).                This inquiry should

include    “[w]arnings    of   the    pitfalls    of     proceeding     to    trial




                                       10
without counsel.”           Tovar, 541 U.S. at 89 (internal quotation

marks and citations omitted).

      Here, no warnings were given at all.                     Based on Venable’s

motion claiming differences with appointed counsel, the court,

without    further      inquiry,      found      Venable    must    proceed     pro   se.

J.A. 30.     Although the court sought to clarify after the fact,

it    initially      gave      Venable        no    option     other      than    self-

representation.         Venable was not, as is required, aware of the

“‘relevant      circumstances.’”            Tovar,    541    U.S.    at   81    (quoting

Brady,    397    U.S.    at    748).        In     addition,       despite     Venable’s

numerous statements that he did not want to represent himself,

the court did not inquire into whether Venable waived his right

to counsel or whether Venable’s waiver was voluntary, knowing,

and   intelligent. 2          Thus,   the     court   violated       Venable’s    Sixth

Amendment right to counsel in forcing him to proceed pro se in

the absence of a valid waiver.

      2
       The district court, in refusing to hear Venable’s express
desire to not waive his right to counsel, found Venable’s
“actions [spoke] louder than words.”   J.A. 131-32.   While some
law outside this Circuit supports the general proposition that a
defendant can waive the right to counsel without affirmatively
invoking his right to self-representation, the same case law
provides   that   waiver  is   only  valid   if  knowingly   and
intelligently made. See United States v. Garey, 540 F.3d 1253,
1265-66 (11th Cir. 2008) (“[W]hen an indigent defendant rejects
competent, conflict-free counsel, he may waive his right to
counsel by his uncooperative conduct, so long as his decision is
made with knowledge of his options and the consequences of his
choice.”).



                                            11
                                          b.

     Although        both    parties    agree       that    this    case       should     be

remanded, they differ on the appropriate relief.                        The government

argues   that     the      mental    health    evaluation         was   not     conducted

according    to      any    statutory    authority,         and     that       on   remand,

Venable’s competency to stand trial should be evaluated under 18

U.S.C. § 4241.        We need not decide whether the court took proper

notice of the evaluation at issue because we do not consider the

propriety    of      Venable’s       sentence.          Likewise,        although        the

district    court     is,    of     course,    free    to   conduct        a   competency

hearing on remand, such issue is beyond this appeal.                                  On the

other hand, Venable argues that we should dismiss his case with

prejudice,   but      such    remedy    is    not     appropriate       for     the    Sixth

Amendment violation before us.



                                         IV.

     Based      on    the    foregoing       analysis,      we     reverse      Venable’s

conviction and remand the case for a new trial.



                                                             REVERSED AND REMANDED




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