     10-1766-cr
     United States v. Culbertson




 1                                      UNITED STATES COURT OF APPEALS
 2                                          FOR THE SECOND CIRCUIT
 3
 4
 5                                                        August Term, 2011
 6
 7                           (Argued: December 2, 2011                     Decided: February 3, 2012)
 8
 9
10                                                     Docket No. 10-1766-cr
11
12
13    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
14
15    UNITED STATES OF AMERICA,
16
17                        Appellee,
18
19    v.
20
21    TROY CULBERTSON,
22
23                        Defendant-Appellant.
24
25    ---------------------------------------X
26
27    Before: HALL, LYNCH and LOHIER, Circuit Judges.
28
29           Troy Culbertson pleaded guilty to four counts of a multi-count superseding indictment,
30    including a charge of conspiracy to import 100 grams or more of heroin and five kilograms or
31    more of cocaine, and was sentenced to 120 months’ imprisonment. He now appeals his
32    conviction and sentence. Because there was an inadequate factual basis for Culbertson’s guilty
33    plea with respect to the quantity of drugs for which he was responsible, we remand to the District
34    Court with instructions to vacate the judgment of conviction and for further proceedings not
35    inconsistent with this opinion.
36
37                                                                LAURIE S. HERSHEY, Manhasset, NY, for
38                                                                Defendant-Appellant.
39


                                                                      1
     10-1766-cr
     United States v. Culbertson


 1                                                   STEPHEN J. MEYER, Emily Berger (on the brief),
 2                                                   for Loretta E. Lynch, United States Attorney,
 3                                                   Eastern District of New York, for Appellee.
 4
 5    LOHIER, Circuit Judge:
 6
 7            Defendant-appellant Troy Culbertson appeals from a judgment of conviction entered in

 8    the United States District Court for the Eastern District of New York (Johnson, J.). Culbertson’s

 9    conviction arose from his plea of guilty to four counts of an eleven-count superseding

10    indictment, including a count for conspiracy to import 100 grams or more of heroin and five

11    kilograms or more of cocaine, in violation of 21 U.S.C. §§ 963, 960(b)(1)(B)(ii), and

12    960(b)(2)(A), and 18 U.S.C. §§ 3551 et seq. The District Court sentenced him principally to a

13    term of imprisonment of 120 months. Culbertson is currently serving his sentence.

14            On appeal, Culbertson makes two arguments. First, he argues that the District Court

15    erred in accepting his guilty plea without first “determin[ing] that there [was] a factual basis for

16    the plea.” Fed. R. Crim. P. 11(b)(3). In particular, Culbertson contends that the District Court

17    lacked a factual basis to accept his plea to the statutorily prescribed drug quantity of five

18    kilograms or more of cocaine, which triggers a mandatory minimum sentence of ten years’

19    imprisonment, because he insisted during the plea that he was responsible for only three

20    kilograms of cocaine. Second, Culbertson argues that he was deprived of his Sixth Amendment

21    right to counsel because the District Court denied his motion to substitute counsel and his

22    “standby counsel” during the plea rendered ineffective assistance.

23



                                                        2
     10-1766-cr
     United States v. Culbertson


 1            As we conclude that Culbertson’s plea failed to satisfy the requirements of Rule 11(b)(3)

 2    of the Federal Rules of Criminal Procedure, we do not resolve Culbertson’s second basis for

 3    challenging his conviction. We remand with instructions to the District Court to vacate the

 4    judgment of conviction.

 5                                             BACKGROUND
 6
 7            1. Investigation and Arrest
 8
 9            In 2007, federal agents started investigating an international narcotics trafficking ring

10    that imported heroin and cocaine from Trinidad to cities in the United States. The agents learned

11    of Culbertson’s involvement in that ring on January 9, 2008, when his girlfriend, Patricia

12    Lancaster, arrived at John F. Kennedy International Airport from Trinidad. Customs officials

13    discovered that Lancaster’s suitcase contained just over ten kilograms (10,369 grams) of cocaine

14    and about 909 grams of heroin. Lancaster was arrested and immediately started to cooperate.

15    She explained that Culbertson and another man had offered her $5,000 to smuggle narcotics

16    from Trinidad to New York and had assured her that two other individuals would meet her at the

17    airport to retrieve the drugs.

18            While the agents were questioning Lancaster, Culbertson called the airport’s Customs

19    and Border Protection office inquiring about Lancaster’s whereabouts. Under the agents’

20    supervision, Lancaster called Culbertson and asked that he pick her up, as no one had met her at

21    the airport. Culbertson responded that he would meet Lancaster at the airport because her

22    luggage contained a “product” that needed to be retrieved. The agents arrested Culbertson as

23    soon as he arrived.


                                                        3
     10-1766-cr
     United States v. Culbertson


 1            2. The Charges
 2
 3            In March 2008, a grand jury indicted Culbertson on four counts as part of a broader,

 4    superseding indictment in which Lancaster and others were also named as defendants. The

 5    indictment charged Culbertson with (1) conspiring to import and importing five kilograms or

 6    more of cocaine and 100 grams or more of heroin, principally in violation of 21 U.S.C. §§ 963,

 7    960(b)(1)(B)(ii), and 960(b)(2)(A) (Counts One and Five); and (2) conspiring and attempting to

 8    possess with intent to distribute the same amount of cocaine and heroin, principally in violation

 9    of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II), and 841(b)(1)(B)(i) (Counts Two and Seven).

10            3. Pre-Plea Proceedings

11            At a pretrial conference on May 15, 2008, Allen Lashley, Culbertson’s fourth appointed

12    attorney of record,1 reported that he and Culbertson had argued over his refusal to file a

13    “frivolous motion” and that Culbertson had fired him. Culbertson complained: “I can’t get my

14    lawyer to do anything for me, and I don’t know the law.” The District Court responded as

15    follows:
16
17                    This is what I am going to do. Mr. Lashley, you are the fourth
18                    lawyer. I am not going to relieve you. Mr. Culbertson will be trying
19                    this case or handling this case himself, pro se. You will be standby
20                    counsel to assist him should he need assistance but anything else he
21                    will do himself. I am not in the business of providing free lawyers to
22                    defendant at his particular whim.
23




              1
               Culbertson’s first attorney had been relieved because of a conflict of interest, and two
      others had been relieved because of disputes with Culbertson.

                                                        4
     10-1766-cr
     United States v. Culbertson


 1    When Culbertson protested that he did not want to proceed pro se and that he “need[ed] help,”

 2    the District Court responded that he was “on [his] own,” but also told him, “If you need help and

 3    you want to call Mr. Lashley, you are free to do it.” In the ensuing months, Lashley continued to

 4    appear at pretrial conferences as Culbertson’s standby counsel. Culbertson later filed a pro se

 5    “Motion for Appointment of Counsel,” in which he asserted that each of his lawyers had been

 6    unfit and that he was incapable of representing himself. The District Court denied the motion,

 7    referring to its broad discretion to decline to appoint new counsel and noting that an indigent

 8    defendant is not entitled to his counsel of choice.

 9            The District Court set a trial date of February 9, 2009. During a conference only a few

10    weeks prior to trial, after reviewing Culbertson’s history with prior counsel, the court observed

11    that Culbertson was set to proceed pro se at trial, and sought to clarify Lashley’s role as “standby

12    counsel”:
13
14                    I’m here to inform you that when we do go to trial there will
15                    be no hybrid representation. You will either represent
16                    yourself from beginning to end or, if you want, you still have
17                    time, Mr. Lashley will represent you from beginning to end.
18                    I’m just putting you on notice so you have to make a decision
19                    what you want to do.
20
21    Culbertson responded, “I don’t want to go pro se. I don’t want Mr. Lashley because he’s not

22    doing anything for me,” and “I’m asking the court for a lawyer.” The District Court confirmed

23    that Lashley would serve as standby counsel at trial if Culbertson wished, but that Culbertson

24    was otherwise “on [his] own.” Again, Culbertson protested that he did not want to proceed pro

25    se because he did not “know how to do a trial from beginning to end.”


                                                        5
     10-1766-cr
     United States v. Culbertson


 1            4. The Plea Proceeding

 2            On January 21, 2009, the District Court held another conference, which culminated in

 3    Culbertson’s guilty plea. At the start of the conference, the court re-emphasized that

 4    Culbertson’s options were to proceed pro se or accept Lashley as his attorney. Lashley advised

 5    the Court that he had been unsuccessful in “tr[ying] to obtain a plea bargain to Mr. Culbertson’s

 6    satisfaction.” Lashley explained, “I advised [Culbertson] he doesn’t have to plead to the plea

 7    agreement, he could plead to the indictment, and then at the time of sentence or before sentence

 8    we can bring up all of the arguments that he has concerning what type of sentence he should get

 9    from the Court.” The District Court briefly adjourned the conference to permit Culbertson,

10    Lashley, and the Government to continue discussing a possible disposition.

11            When the parties returned, Lashley stated that Culbertson wished to plead guilty to all the

12    counts against him in the superseding indictment, although no formal plea agreement had been

13    reached and the Government had not delivered a letter pursuant to United States v. Pimentel, 932

14    F.2d 1029 (2d Cir. 1991). Before proceeding with the plea, the Government confirmed that

15    Culbertson had reserved his rights to an evidentiary hearing regarding drug quantity.

16            During the plea proceeding, the District Court verified that Culbertson was competent,

17    that he had discussed the charges against him with his “legal advisor,” Lashley, and that he

18    understood Lashley’s advice regarding the charges. Culbertson said that he understood that he

19    faced a maximum sentence of life imprisonment and a minimum sentence of ten years. The

20    Government then proffered that its proof against Culbertson consisted principally of an audio



                                                       6
     10-1766-cr
     United States v. Culbertson


 1    recording of Culbertson speaking by phone with Lancaster about importing the drugs in her

 2    suitcase, which included over one hundred grams of heroin and over five kilograms of cocaine.

 3    Culbertson allocuted that he had recruited Lancaster to bring narcotics into the United States

 4    from Trinidad. After the allocution, the District Court asked Culbertson whether he knew that

 5    Lancaster was “coming into this country with narcotics,” and Culbertson responded, “Yes. We

 6    made an agreement for three kilos of cocaine.” The court then asked the Government if it had

 7    any additional questions, which prompted the following colloquy:

 8                   The Government: The government would proffer, it would be able
 9                   to prove that the amount that [Lancaster], who the defendant is
10                   referring to, what she brought into the country was greater than one
11                   hundred grams or more of heroin and greater than five kilos –
12                   The Court: Says three kilos of coke. Did you know about the
13                   heroin?
14                   The Defendant: She made a proffer with the government in which
15                   she agreement we made three and when she plead guilty she plead
16                   guilty to three. That’s all I know.
17                   The Court: It’s part of a conspiracy?
18                   The Government: Correct, your Honor.
19
20   After describing the charges against Culbertson without further mentioning drug quantity or

21   advising Culbertson of the elements of each charge, the District Court accepted Culbertson’s plea.

22           5. Post-Plea Proceedings and Sentencing

23           Prior to his plea, Culbertson had requested a Fatico hearing to determine the amount of

24   cocaine for which he was responsible. After the plea, the Government responded that, for

25   sentencing purposes, it would rely solely on the five-kilogram minimum weight necessary to

26   trigger the ten-year mandatory minimum sentence, rendering a Fatico hearing unnecessary. The



                                                      7
     10-1766-cr
     United States v. Culbertson


 1   District Court denied the request for a Fatico hearing as “moot in light of the government’s

 2   response.”

 3           Before sentencing, Culbertson filed a pro se motion to withdraw his guilty plea, arguing,

 4   among other things, that he had entered the plea under pressure and that he had been

 5   unconstitutionally denied the assistance of counsel during his plea proceeding. Culbertson also

 6   filed a pro se motion requesting that the District Court impose a sentence below the ten-year

 7   statutory minimum because he was responsible for only three, not five, kilograms of cocaine.

 8   Under the Controlled Substances Act, a plea to three kilograms of cocaine would have triggered

 9   only a five-year mandatory minimum sentence.

10           At Culbertson’s sentencing, the District Court accepted the presentence report’s

11   calculation that Culbertson’s Guidelines range was 57 to 71 months.2 However, having

12   determined that Culbertson was subject to a ten-year mandatory minimum sentence because his

13   offense involved at least five kilograms of cocaine, the court concluded that it was without

14   authority to impose a lesser sentence. Culbertson again insisted that he should be sentenced

15   based on three rather than five kilograms of cocaine because he had pleaded guilty to “three

16   kilos” and had sought a Fatico hearing. The court responded, “Whatever count that you pled to

17   calls for a mandatory minimum.” It then sentenced Culbertson to 120 months’ imprisonment.

18           This appeal followed.


              2
                The presentence report concluded that Culbertson’s criminal history category was III
      and his base offense level was 30, but that he was eligible for a four-level “minimal role”
      reduction under § 3B1.2(a) of the United States Sentencing Guidelines. An additional three-
      level downward adjustment for acceptance of responsibility yielded an adjusted offense level of
      23, for a Sentencing Guidelines range of 57 to 71 months, not accounting for the ten-year
      mandatory minimum.

                                                      8
     10-1766-cr
     United States v. Culbertson


 1                                              DISCUSSION
 2
 3           1. The Factual Basis for the Guilty Plea

 4           Culbertson argues that the District Court violated Federal Rule of Criminal Procedure

 5   11(b)(3) by accepting his guilty plea without an adequate factual basis. He contends that he

 6   consistently and explicitly challenged the statutorily prescribed drug quantity of five kilograms or

 7   more of cocaine and maintained that he was responsible for only three kilograms.

 8                   a. Standard of Review

 9           “We review for . . . abuse of discretion a district court’s decision that a defendant’s factual

10   admissions support conviction on the charge to which he has pleaded guilty.” United States v.

11   Adams, 448 F.3d 492, 498 (2d Cir. 2006). In the wake of Apprendi v. New Jersey, 530 U.S. 466

12   (2000), however, we recognize that “a defendant cannot be convicted on an aggravated [drug]

13   offense unless the statutory drug quantity is proved to a jury or admitted by the defendant.”

14   United States v. Gonzalez, 420 F.3d 111, 124 (2d Cir. 2005).

15                   b. Factual Basis for Drug Quantity
16
17           We have previously held that in order to provide a factual basis for a plea to a drug

18   conspiracy charge under 21 U.S.C. § 841(b)(1)(A), an allocution must establish that the “drug

19   type and quantity were at least reasonably foreseeable to the co-conspirator defendant.” Adams,

20   448 F.3d at 499. In United States v. Gonzalez, for example, we reviewed the adequacy of a plea

21   allocution regarding drug quantity under Rule 11(b)(3) by a defendant who was charged

22   under § 841(b)(1)(A) with conspiring to distribute 50 grams or more of crack cocaine, an amount

23   that carried a twenty-year mandatory minimum sentence. Gonzalez, 420 F.3d at 119, 121, 133.

24   Gonzalez, the defendant, “specifically declined to plead guilty to conspiring to distribute the

                                                        9
     10-1766-cr
     United States v. Culbertson


 1   charged fifty grams or more of crack, explaining . . . that he had never intended to sell the

 2   informant a kilogram of real crack,” but had intended to sell only a counterfeit substance. Id. at

 3   117. We held “that Gonzalez’s failure to admit – indeed, his explicit challenge to – the statutorily

 4   prescribed quantity meant that his plea did not provide the court with an adequate factual basis to

 5   enter judgment against him on the charged crime,” and we remanded to the district court with

 6   instructions to vacate the judgment of conviction. Id. at 133-34.

 7           In United States v. Adams, we considered another Rule 11(b)(3) challenge to a plea by a

 8   defendant who allocuted that he had participated in a scheme to “transport eighty-five to ninety

 9   pounds of marijuana,” but who was ultimately convicted of conspiring to transport five kilograms

10   or more of cocaine. 448 F.3d at 495. After the allocution, the Government clarified that Adams,

11   the defendant, had stipulated that he would be sentenced based on at least five kilograms of

12   cocaine. Alerted to the inconsistency, the court asked Adams two questions before accepting his

13   plea: (1) “whether he realized that he had agreed to sentencing for a cocaine conspiracy,” and (2)

14   “[a]lthough [he] didn’t know that the load was coke at the time,” whether “[he] did know that it

15   was a drug and it was illegal.” Id. at 496. Adams answered both questions “in the affirmative.”

16   Id. We nevertheless concluded that there was an insufficient factual basis for the plea and that the

17   district court had “failed to elicit an admission that [the defendant] actually knew he was

18   conspiring to distribute at least five kilograms of cocaine,” because Adams had “insisted that he

19   knew of and agreed to only a marijuana conspiracy.” Id. at 499.

20           Our holdings in Gonzalez and Adams extend to Culbertson’s conviction under

21   21 U.S.C. § 963, which, like 21 U.S.C. § 846, requires a showing that the defendant “knew of his

22   co-conspirator’s illicit activities or [that] the activities were reasonably foreseeable by him.”

                                                       10
     10-1766-cr
     United States v. Culbertson


 1   United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003). Like the defendants in those cases,

 2   Culbertson “specifically declined” to plead guilty to a drug quantity involving more than five

 3   kilograms, Gonzalez, 420 F.3d at 117, and “insisted that he knew of and agreed to” a conspiracy

 4   to transport only three kilograms, Adams, 448 F.3d at 499. When asked to describe the conduct

 5   that led him to believe he was guilty, Culbertson responded that he had agreed with Lancaster to

 6   transport three kilograms of cocaine. Immediately after the Government proffered that Lancaster

 7   had in fact transported five kilograms of cocaine, the District Court referred to “three kilos of

 8   coke,” a reference that prompted Culbertson to repeat that he was responsible for only three

 9   kilograms of cocaine, and to point out that Lancaster had pleaded guilty to only three kilograms.

10   Culbertson’s persistent disavowal of responsibility for any amount in excess of three kilograms of

11   cocaine compels us to conclude that the District Court lacked a factual basis for his plea.

12                The Government contends that its proffer of proof during Culbertson’s plea provided a

13     sufficient factual basis under Rule 11. We disagree. It is true that, to establish the factual basis

14     required by Rule 11, the district court may rely on representations of “the defendant, of the

15     attorneys for the government and the defense, [or] of the presentence report when one is

16     available,” and indeed may use “whatever means is appropriate in a specific case.” United

17     States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997) (quoting Fed. R. Crim. P. 11, Advisory

18     Committee Note (1974)). But it is error for the court to find that a factual basis exists when the

19     defendant actively contests a fact constituting an element of the offense.3 See, e.g.,


              3
                For example, if during a guilty plea for murder the prosecutor proffers that the
      defendant committed the murder with which he is charged, and the defendant and his counsel
      flatly deny it but acknowledge some other crime, the result is not to accept the Government’s
      proffer, but to reject the murder plea and proceed to trial.

                                                        11
     10-1766-cr
     United States v. Culbertson


 1     Montgomery v. United States, 853 F.2d 83, 85-86 (2d Cir. 1988) (vacating guilty plea where

 2     defendant admitted only to conspiring with government agents and informants, but “flatly

 3     refused to admit” conspiring with the person named in the indictment); cf. United States v.

 4     Navedo, 516 F.2d 293, 297-98 (2d Cir. 1975) (upholding lower court’s rejection of a guilty plea

 5     where the defendant denied knowledge of, and intent to participate in, a drug conspiracy).

 6     Under Rule 11, moreover, the court must “assure itself . . . that the conduct to which the

 7     defendant admits is in fact an offense under the statutory provision under which he is pleading

 8     guilty.” Maher, 108 F.3d at 1524. In doing so, it is “essential . . . that the court determine by

 9     some means that the defendant actually understands the nature of the charges.” Id. at 1521.

10             Again, far from admitting that he knew or reasonably could have foreseen that Lancaster

11     was transporting over five kilograms of cocaine, or that the Government could prove the

12     foreseeability of this amount, Culbertson affirmatively disputed this essential element of the

13     charged crime. In addition, the District Court’s mistaken reference to “three kilos of coke” after

14     the Government’s proffer served to muddle rather than clarify the quantity to which Culbertson

15     was pleading guilty.

16             Relying on United States v. Andino, 627 F.3d 41 (2d Cir. 2010), the Government urges

17     us to affirm Culbertson’s conviction on the ground that he personally and directly participated

18     in the drug transaction underlying the conspiracy charges against him, and that under these

19     circumstances the Government need not prove knowledge or foreseeability. Id. at 47.

20     Accordingly, the Government submits, Culbertson should be held responsible for the actual

21     amount of cocaine found in Lancaster’s suitcase – an amount that it claims he never disputed.

22     This argument is unpersuasive for two reasons.

                                                       12
     10-1766-cr
     United States v. Culbertson


 1             First, Culbertson appears to have challenged the actual amount of cocaine in Lancaster’s

 2     suitcase, as well as his knowledge of that amount. Culbertson never acknowledged that

 3     Lancaster was found with five kilograms of cocaine and, indeed, insisted that Lancaster’s plea

 4     reflected that she had only three kilograms of cocaine. Second, the record belies the

 5     Government’s contention that Culbertson personally and directly participated in the drug

 6     transaction. In Andino, we held that the Government need not “prove scienter as to drug type or

 7     quantity when a defendant personally and directly participates in a drug transaction underlying

 8     a conspiracy charge.” 627 F.3d at 47. We concluded that a defendant who retrieved a package

 9     containing drugs addressed to him and transported it to another building had personally and

10     directly participated in that transaction and could be sentenced based on the type and quantity of

11     drugs in the package, even if those were not reasonably foreseeable to him. Id. We were

12     careful to contrast Andino’s case, however, with cases such as Adams, in which the defendant

13     merely “recruited another individual to transport drugs on his behalf.” Id. at 47 n.3 (citing

14     Adams, 448 F.3d at 495).

15             Here, Culbertson recruited Lancaster to transport cocaine from Trinidad, but there is no

16     evidence that he actually handled the cocaine or was involved beyond the recruitment.

17     Moreover, the District Court found that Culbertson was entitled to a significant downward

18     adjustment under the Sentencing Guidelines for playing a “minimal role” in the offense. This

19     adjustment is available only to “a defendant who plays a part in committing the offense that

20     makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2(a)

21     (commentary n.3(A)). That finding indicates that Culbertson’s role was far from direct.

22


                                                       13
     10-1766-cr
     United States v. Culbertson


 1                     c. Harmless Error

 2             Having determined that the District Court erred in accepting Culbertson’s plea without a

 3     sufficient factual basis, we turn to whether the “variance from the requirements of” Rule 11

 4     constituted “harmless error” or instead “affect[ed] substantial rights.” Fed. R. Crim. P. 11(h).

 5             “[T]he kinds of Rule 11 violations that can properly be considered harmless error are

 6     ‘fairly limited.’” Maher, 108 F.3d at 1521 (quoting Fed. R. Crim. P. 11, Advisory Committee

 7     Note (1983) (Rule 11(h)). In Gonzalez, we described drug quantity as “presumptively

 8     significant” because of its “potential impact on any term of incarceration, both in terms of the

 9     statutory minimum and the Sentencing Guidelines.” 420 F.3d at 132, 133. We explained that

10     drug quantity is particularly significant when “[t]he record plainly demonstrates that” it is “the

11     only fact [the defendant] wished to contest with respect to the charged conspiracy.” Id. at 132-

12     33. After Gonzalez, we made the following pronouncement:

13                     A lack of a factual basis for a plea is a substantial defect calling into
14                     question the validity of the plea. ‘Such defects are not technical, but
15                     are so fundamental as to cast serious doubt on the voluntariness of
16                     the plea,’ and require reversal and remand so that the defendant may
17                     plead anew or stand trial.

18     Adams, 448 F.3d at 502 (quoting Godwin v. United States, 687 F.2d 585, 591 (2d Cir. 1982)

19     (internal citations omitted)).

20             Culbertson clearly disputed the Government’s proffer regarding drug quantity. As

21     evidenced by his request for a Fatico hearing, he also appears to have understood the impact the

22     issue of drug quantity would have at his sentencing. In view of Culbertson’s explicit challenge

23     to this element of the offense, and its effect on his term of incarceration, we conclude that the




                                                          14
     10-1766-cr
     United States v. Culbertson


 1     District Court’s error in accepting Culbertson’s plea was not harmless. We therefore remand to

 2     the District Court with instructions to vacate the judgment of conviction.4
 3
 4
 5
 6                2. Additional Arguments
 7
 8                Although Culbertson’s conviction must be vacated because of the lack of a factual basis

 9     for his plea, in order to avoid problems on remand we also address his argument that the district

10     court erred by requiring him to proceed pro se after disagreements with his fourth court-

11     appointed counsel.

12                While the Sixth Amendment guarantees a right to competent court-appointed counsel in

13     criminal cases, “a trial court may require a defendant to proceed to trial with counsel not of

14     defendant’s choosing.” United States v. Oberoi, 547 F.3d 436, 458 (2d Cir. 2008) (internal

15     citation and quotation marks omitted). Particularly where, as here, the court has already

16     replaced counsel more than once, and the case approaches trial, it is reasonable for the court to

17     require an intractable defendant either to proceed with the current appointed lawyer, or to

18     proceed pro se. See, e.g., United States v. Eltayib, 88 F.3d 157, 168-69 (2d Cir. 1996); McKee

19     v. Harris, 649 F.2d 927, 931-32 (2d Cir. 1981).

20                A defendant faced with a choice between retaining his current court-appointed counsel

21     and proceeding pro se is entitled to elect the latter option, because “the Sixth Amendment right

              4
                During oral argument, the Government noted that it had refrained from filing a prior
      felony information against Culbertson prior to his plea but reserved its right to do so in the event
      that we vacated the judgment of conviction. If, on remand, the Government properly files a prior
      felony information and Culbertson is convicted based on five kilograms or more of cocaine, he
      will face a mandatory minimum sentence of twenty years’ imprisonment. Nothing we have said
      herein is intended to preclude the District Court from deciding in the first instance whether a
      felony information has been properly filed or is otherwise subject to challenge.

                                                         15
     10-1766-cr
     United States v. Culbertson


 1     to the assistance of counsel implicitly embodies a correlative right to dispense with a lawyer’s

 2     help.” Faretta v. California, 422 U.S. 806, 835 (1975) (internal quotation marks and citation

 3     omitted). But this is a choice that the defendant himself must make, and he must be given a full

 4     and fair opportunity to consider his options before waiving his Sixth Amendment right in a

 5     knowing and voluntary manner. The able and experienced District Judge may well have been

 6     right to decline to appoint new counsel. In doing so, however, the District Judge failed to inform

 7     Culbertson of the consequences of waiving his rights under the Sixth Amendment and

 8     proceeding pro se. Although a district court may, “under certain circumstances, require the

 9     defendant to select from a limited set of options a course of conduct regarding his

10     representation,” McKee, 649 F.2d at 931, it must “strive for a full and calm discussion with the

11     defendant in order to satisfy itself that he has the requisite capacity to understand and sufficient

12     knowledge to make a rational choice.” United States v. Tracy, 12 F.3d 1186, 1192 (2d Cir.

13     1993) (internal quotation marks and citation omitted); see also Torres v. United States, 140 F.3d

14     392, 401 (2d Cir. 1998) (“[T]he district court should engage the defendant in an on-the-record

15     discussion to ensure that she fully understands the ramifications of her decision.”).

16             Thus, a defendant who, wisely or not, seeks to represent himself “should be made aware

17     of the dangers and disadvantages of self-representation, so that the record will establish that he

18     knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835

19     (internal quotation marks and citation omitted). Without resort to any particular “talismanic

20     procedures,” a district court should establish that “the defendant understood that he had a choice

21     between proceeding pro se [or] with assigned counsel, . . . understood the advantages of having

22     one trained in the law to represent him, and . . . had the capacity to make an intelligent choice.”


                                                        16
     10-1766-cr
     United States v. Culbertson


1      United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (citations and internal quotation marks

2      omitted).

3              Here, notwithstanding Culbertson’s assertions that he was unable to represent himself at

4      trial, the District Court did not apprise him of the consequences of proceeding pro se or assess

5      his capacity to make an informed choice. On remand, if the District Court still finds it

6      appropriate to deny the request for new counsel, Culbertson must be allowed to make his own

 7     decision as to whether to proceed pro se or accept his (competent) court-appointed counsel, after

 8     a full Faretta hearing. Of course, the District Court retains discretion to appoint new counsel on

 9     remand if that is appropriate.

10
11                                              CONCLUSION
12
13             For the reasons stated, we REMAND the case to the District Court with instructions to

14     vacate the judgment of conviction and for further proceedings not inconsistent with this opinion.

15




                                                       17
