                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 12-2529
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                               GREGORY GRISWOLD,
                                             Appellant
                                  _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Crim. No. 09-cr-00568-001)
                    District Judge: Honorable Paul S. Diamond
                                   ____________

             Before: FUENTES, CHAGARES and BARRY, Circuit Judges
                                ____________

                    SUR PETITION FOR PANEL REHEARING
                      AND ORDER AMENDING OPINION
                       _______________________________

      The petition for rehearing filed by appellee, having been submitted to the judges

who participated in the decision of this Court, is GRANTED, and the Not Precedential

Opinion and judgment, filed May 2, 2013, are vacated. An amended opinion shall be

issued. The amendment to the opinion follows:

      Section II, last paragraph, is hereby amended to now read:

             Here, Griswold made a timely request3 to proceed pro se, and we are

      3
          Although made on the day of trial, the jury had yet to be empanelled. Bankoff,
613 F.3d at 373 (noting a request is untimely if made “after trial has commenced—i.e . . .
. after the jury has been empanelled”).
       satisfied on this record that the Peppers requirements were met. Although
       the District Court may have believed that Griswold’s request was made to
       obstruct the proceedings and delay trial, 4 it did not conclude that the
       request itself was equivocal or that Griswold’s waiver of counsel was not
       knowing, voluntary and intelligent or made by a defendant who was not
       competent to stand trial. Cf. Buhl v. Cooksey, 233 F.3d 783, 797 (3d Cir.
       2000) (“A court may conclude that a defendant who intends nothing more
       than disruption and delay is not actually tendering a knowing, voluntary
       and intelligent waiver of counsel, and has not unequivocally asserted the
       constitutional right to conduct his/her own defense”). The Court’s desire to
       prevent trial delay is certainly understandable, as is its frustration at
       Griswold’s last minute decision to proceed pro se. Nevertheless, the Court
       erred by denying Griswold’s request.

                                   BY THE COURT:

                                   /s/Maryanne Trump Barry
                                   Circuit Judge



Dated: May 22, 2013




       4
         The District Court stated that under Bankoff “the timing of the request is only one
factor that a Court must consider” and that the Court is “obligated to balance the
prejudice to the Defendant’s legitimate interests against any potential disruption that a
self-representation request would cause.” (J.A. vol. II at 34). This discretionary
balancing only occurs, however, when the right to proceed pro se is “curtailed” by an
untimely request. Bankoff, 613 F.3d at 373. The request here was timely, and thus the
Court should not have reached this balancing inquiry.
                                             2
