                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                               No.   97-51051



UNITED STATES OF AMERICA
                                                Plaintiff-Appellee,
versus


DUDLEY EDWARD VANDERGRIFF
                                                Defendant-Appellant.


             Appeal from the United States District Court
                   for the Western District of Texas
                             (P-97-CR-66-1)

                           February 17, 1999

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:*

        Defendant-appellant,     Dudley    Vandergriff,       appeals    his

conviction for possession of a firearm by a felon.              On appeal,

Vandergriff    contends   that   his   warrantless   arrest    was   without

probable cause, and therefore the evidence seized pursuant to his

arrest should have been suppressed.        Vandergriff also appeals his

alleged denial of his right to waive counsel and represent himself

at trial.     Because we conclude that Vandergriff was denied his

Sixth Amendment right to self-representation, we do not reach the

issue of the constitutionality of his warrantless arrest.                We,



    *
     Pursuant to 5th CIR.R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5th CIR.R. 47.5.4.

                                     -1-
therefore, vacate and remand.

     The record evidence tends to prove the following facts.              On

April 27, 1997, members of an organization known as the “Republic

of Texas” kidnaped two residents of the Fort Davis Resort at

gunpoint in their home.    The members occupied the home and held the

residents captive for a number of hours until Texas Department of

Public Safety (TDPS) officials negotiated a release of the hostages

in return for permitting the kidnappers to return to the “Embassy

of the Republic of Texas.”1      On April 29, the “Republic of Texas”

issued a “call to arms” over the Internet, commanding defense

forces to proceed to Balmorhea, Texas where they would be met by

other militias.       The day after this “call to arms,” the Pecos

Police   Department    (PPD),   received   a   teletype   from   TDPS   that

indicated that a tan Suburban containing four males was traveling

west on Interstate 20, presumably in response to the call to arms.

The teletype instructed the police to “DEVELOP OWN PROBABLE CAUSE

FOR STOP . . . .”      Balmorhea is approximately 45 miles South of

Pecos.

     The PPD observed not only the Suburban as it entered Pecos,

but also a blue Oldsmobile that appeared to be traveling with the

Suburban.   An officer of the PPD followed the vehicles until they

stopped at a truck stop (“Flying J”).      According to the record, the

Oldsmobile followed close behind the tan Suburban, and pulled

alongside the Suburban after entering the parking area of the


    1
     The “Embassy” was essentially a shack-like structure located
in the Davis Mountains near Fort Davis, Texas.

                                   -2-
Flying J.     Thereafter, the occupants of the vehicles appeared to

have a conversation.      After the vehicles parked, five white males

exited the vehicles and entered the Flying J.

      The Texas Rangers met the PPD at the Flying J and observed

that the license plate of the Suburban matched the license plate

number in the teletype.        As the Rangers approached the Oldsmobile

and Suburban, they observed two male passengers, one asleep in the

Oldsmobile and one asleep in the Suburban, and a partial view of a

gun barrel in the rear portion of the Suburban.

      The officers woke the sleeping occupants of the Oldsmobile and

Suburban and told them to exit the vehicles and lie on the ground.

The officers then proceeded to handcuff the occupants.               As these

events transpired, two of the males that had entered the Flying J

happened to exit, one of whom was Vandergriff.                   The officers

instructed them to lie on the ground, and they were subsequently

handcuffed.       Thereafter, the officers entered the Flying J and

escorted the remaining three men outside and ordered them to lie on

the   ground,     and   they   were     handcuffed.     The    officers    then

transported all of the handcuffed individuals to the Revees County

Sheriff’s    Office.      Additionally,       the   officers   impounded   the

Oldsmobile and Suburban, and brought them to the Revees County

Sheriff’s Office.

      After an inventory search of the vehicles at the Sheriff’s

Office,     the    officers     found     several     weapons,    ammunition,

paramilitary gear with ROT insignia, and ROT paraphernalia in both

vehicles.     Items that were specifically found in the Oldsmobile


                                        -3-
were two loaded SKS rifles, hundreds of rounds of ammunition, a

military backpack with supplies, low grade explosive powder, and

Kevlar   helmets,    all    located   in    the   trunk;   as    well   as   title

information that indicated that the car belonged to Mrs. Elizabeth

Vandergriff, Vandergriff’s mother, and a Bible that was inscribed

“Presented to Dudley Vandergriff.”

     At the Sheriff’s Office, approximately eight an a half hours

after the events transpired at the Flying J, a Texas Ranger

interviewed Vandergriff. Vandergriff waived his rights, and denied

any knowledge of the Fort Davis standoff and any knowledge of the

blue Oldsmobile.      He told the officer that he was riding in the

Suburban, and that he was traveling to go hunting for hogs.                   Not

fully    satisfied   with    Vandergriff’s        explanation,    the   officers

transported Vandergriff to the Reeves County Detention Center.

     A background check revealed that Vandergriff had a previous

felony conviction for possession of cocaine.                    In the criminal

Complaint, the Government charged Vandergriff with Possession of a

Firearm by Felon, 18 U.S.C. § 922(g), because of the weapons found

in the trunk of the Oldsmobile.            Vandergriff’s motion to suppress

the evidence found in the Oldsmobile was overruled at trial, and

after a jury trial he was convicted and sentenced to 102 months in

jail.

     At a pre-trial hearing, Vandergriff voiced his intent to

represent himself.     The district court inquired into Vandergriff’s

formal education and other training, and ordered a psychiatric

examination to determine if he had the mental competency to stand


                                      -4-
trial.

         Thereafter, the counsel for Vandergriff filed a Motion to

Withdraw     as   Attorney   because   Vandergriff      wrote   him   a   letter

instructing him to do so.        At a hearing in response to the Motion

to   Withdraw,    Vandergriff    seemed      to   ambiguously   assent    to   be

represented by counsel.2        Soon after this hearing, the Government

     2
     The following colloquy occurred between the Appellant and the
Court:
COURT:         But you indicated that you wanted to charge Mr.
               Leahey [Vandergriff’s attorney] with defamation and
               slander and a few other things, and that you wanted
               him to withdraw as counsel in this case. You are
               aware of that, are you not?
APPELLANT:     Yes, sir, I am.
COURT:         And the reason we have to have this hearing is
               because I want to know if you still feel that way
               about getting rid of Mr. Leahey.
APPELLANT:     Okay. Well, sir, a question that would come to my
               mind first -
COURT:         Yes, sir.
APPELLANT:     Would be if indeed I do recuse Mr. Leahey of my
               services, would I therefore still be under the
               contract to have another court appointed attorney?
COURT:         Yes.
APPELLANT:     Assigned by this Court?
COURT:         Yes, sir.
APPELLANT:     So I would not have the choice of standing sui
               juris or hiring another attorney?
COURT:         You hire anybody you want to, as long as he is a
               lawyer, Mr. Vandergriff. And certainly if you can
               afford an attorney, or members of your family can
               afford an attorney, certainly you have the right to
               do so. The case is still set for September 8th, you
               understand, because you are in custody and I can’t
               put it off. But if you want to hire somebody in
               the place of Mr. Leahey, certainly you may do so.
APPELLANT:     But are you also telling me that I may not proceed
               sui juris?
COURT:         I am also telling you that you are going to have a
               lawyer in this courtroom when you go to trial.
APPELLANT:     And that I have no choice in that matter?
COURT:         No, sir, you don’t.
APPELLANT:     All right. Then at this point in time I choose to
               retract the letter that I sent you as well as the
               motion to dismiss my attorney.

                                       -5-
brought a Motion Urging Reconsideration of Defendant’s Motion to

Represent Himself at Trial. Specifically, the Government asked the

district court to “reconsider its previous order, to conduct an

extensive colloquy with Mr. Vandergriff about the pitfalls of self

representation, to obtain a knowing and intelligent waiver of

counsel, and to appoint standby counsel in case Mr. Vandergriff

becomes obstructionist [sic] or changes his mind.”

     This Motion was heard the day jury selection began in the

present case, and the court participated in extensive colloquy with

the Appellant.3   Ultimately, the trial commenced with Vandergriff

    3
     The following colloquy occurred between the Appellant and the
court:
THE COURT:     Now let me ask you this, Mr. Vandergriff . . .you
               indicated to me that you wanted to represent
               yourself and I attempted to counsel with you and
               told you I didn’t think that was too good of an
               idea, and you agreed at that time to allow Mr.
               Leahy to proceed to represent you. Since that time
               the Federal Government has filed a motion in this
               Court asking me to reconsider what I did the last
               time, stating it was their belief that the law in
               this country is that if one wished to represent
               himself in a trial he has that absolute right
               within some constraints, as long as we are not, you
               know having a big problem in Court and all that
               sort of stuff. What I need to know in connection
               with that motion, do you want me, Mr. Vandergriff,
               to reconsider and let you proceed by yourself or do
               you want to go ahead and let’s go on with Mr.
               Leahy?
APPELLANT:     Okay I want to make this perfectly clear to the
               Court, and that is that I do not wish to represent
               myself. I wish to be heard alone, and there is a
               difference. I only have one counsel and my counsel
               is Jesus Christ . . . Sir, I wish to be heard by
               myself. I do not wish to represent myself, I do
               not wish a lawyer, I wish to be heard by myself.
                          *     *     *
APPELLANT:     I have the right to be heard by myself. Okay.
               Now, that’s what I chose to do. However, this man
               was thrust upon me, I was not informed completely.

                                -6-
represented by counsel.


               When I signed, when I signed that thing saying that
               I wanted a court appointed attorney, it was never
               explained to me that once I took an attorney that I
               could never retract that because you told me last
               week if I got rid of this guy that you were going
               to make me take another person, that I would have
               no choice.
THE COURT:     I’m not now.
APPELLANT:     You are not now?
THE COURT:     If you want to get rid of Mr. Leahey, I’m not going
               to force another lawyer on you as long as you don’t
               misbehave.
APPELLANT:     I don’t want to misbehave.
THE COURT:     I don’t want you to.

     Thereafter, the following exchange took place just prior to
the beginning of trial:

THE COURT:     Mr. Vandergriff, I’m going to bring the jury in in
               just a moment, but I need to get some sort of a
               sense of direction as to your participation in the
               trial.   If you don’t’ want Mr. Leahy, you don’t
               have to have him. I think you probably would be
               better off to have him, but I’m not trying to keep
               you from representing yourself. But I don’t know
               who to turn to when it comes to questioning the
               witnesses, whether you want to do the questioning
               or you want Mr. Leahy to do it.       I don’t know
               whether you want to make an opening statement
               following the Government’s opening statement in
               this case, Mr. Vandergriff. In order to have an
               orderly trial I have got to get some sense of
               direction sir.
APPELLANT:     Well, sir, officially I stand on the motion that I
               served this Court in that I want to stand alone.
               However, at this point, now that we have already
               proceeded to this degree, I’m not ready, I’m not
               prepared to do it on my own. But, you know, for the
               record, let me state that I did want to assert that
               right. However, now since we have no time for me
               to prepare, I have no choice but to stay with the
               attorney.
THE COURT:     How long do you think it would take to prepare?
APPELLANT:     There is no telling.
THE COURT:     Well, you see, we have got a little problems with
               that, Mr. Vandergriff, in that we have speedy trial
               problems and I cannot remand you to the custody of
               the Marshal, you know, three years to prepare your
               case. I can’t do that.

                               -7-
       The Supreme Court recognized in Faretta v. California, 422

U.S.    806    (1975),   that    the    right    of    self-representation      is

guaranteed by the Sixth Amendment.              The exercise of this right,

however,      is   conditioned   on    the    “knowingly    and   intelligently”

relinquishment of the right to counsel.               Chapman v. United States,

553 F.2d 886, 895 (5th Cir. 1977), citing Faretta, 422 U.S. at 835;

Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938).                   To this end, a

district court should certify that the defendant is aware of the

perils of self-representation, and make sure that the record

reflects the defendant’s voluntary decision.               Faretta, 422 U.S. at

835.     Essentially,     the    district      court    must   ensure   that   the

defendant “‘knows what he is doing and his choice is made with eyes

open.’” Id., quoting Adams v. United States ex rel. McCann, 317

U.S. 269, 279 (1943).       In the present case, Vandergriff’s knowing

and intelligent waiver of counsel and assertion of his right to

represent himself was directly and unequivocally communicated to

the district court on three different occasions:                  At the pretrial

hearing, at the hearing of his attorney’s Motion to Withdraw, and

at the Government’s Motion Urging Reconsideration of Defendant’s

Motion to Represent Himself at Trial.

       The nature of the denial of the right of self-representation

is different from other constitutional violations, in that the

harmless error doctrine does not apply to save the district court’s

error.     As this court stated in Chapman v. United States, the

defendant’s right to self-representation does not exist to increase

the chance of winning his case, but exists because of the “notion


                                        -8-
that each person is ultimately responsible for choosing his own

fate.”    Id. at 891.         Therefore, the sole inquiry is not whether

the   error    of    denial   was    harmful,       but     rather    did     the   court

wrongfully deny the defendant his right to represent himself at

trial.    McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8 (1984).                         See

also Chapman, 553 F.2d at 891-92.

      Additionally, this court has consistently held that the right

to self-representation can be timely asserted anytime before jury

is empaneled as long as there is no evidence in the record that

assertion of the right was a tactic to secure delay.                    Chapman, 553

F.2d at 894.         Evidence that the request was designed to achieve

delay can be inferred from the circumstances surrounding the

request, such as a pattern of dilatory conduct by the defendant.

United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989).

      In the present case, when Vandergriff asserted his right to

represent himself on the third occasion, the trial judge found that

Vandergriff had knowingly and intelligently waived the right to

counsel       and    asserted       the    right      to      self-representation.

Accordingly, the trial court informed Vandergriff that the could

represent      himself.       However,      when    the     trial     court    informed

Vandergriff that the trial would commence immediately and refused

the defendant’s request for time to prepare his case, Vandergriff

acquiesced      in    allowing      the    government-appointed             counsel    to

represent him.        Vandergriff pointed out to the court that at his

previous appearance        the   court      had    informed     him    he     could   not

represent      himself    and    for      that     reason     had    made     no    trial


                                          -9-
preparations.         Under    these   circumstances,        we   conclude     that

Vandergriff     did    not    voluntarily     waive    his    right     to   self-

representation.       In forcing Vandergriff, under these circumstances

where he was not attempting to secure an unwarranted delay, to

accept against his will a government-appointed attorney, the court

deprived him     of    his    constitutional   right    to    conduct    his    own

defense.

     Accordingly, the judgment before us is vacated and the case is

remanded for proceedings not inconsistent with this opinion.

VACATED AND REMANDED




                                       -10-
