452 F.

3d 223

UNITED STATES of America

v.
Christopher D. JONES, Appellant.
No. 05-3001.

United States Court of Appeals, Third Circuit.

Argued April 21, 2006.
Opinion filed June 28, 2006.

COPYRIGHT MATERIAL OMITTED Stephen F. Becker, Esquire

(Argued), Shapiro & Becker, Lewisburg, PA, for Appellant.
Thomas A. Marino, United States Attorney, George J. Rocktashel
(Argued), Assistant United States Attorney, Office of the United States
Attorney, Williamsport, PA, for Appellee.
Before: SLOVITER and AMBRO, Circuit Judges, and DuBOIS,* District
Judge.
OPINION OF THE COURT
AMBRO, Circuit Judge.

Christopher D. Jones appeals his drug conviction and sentence entered in the
United States District Court for the Middle District of Pennsylvania. He
contends, inter alia, that his decision to proceed pro se was not knowing,
intelligent, and voluntary. We agree, vacate his conviction, and remand to the
District Court for a new trial.

I. Facts and Procedural History

A. Background
2

In July 2003, Pennsylvania State Trooper John Latin observed Jones driving at
over 80 miles per hour on an interstate highway. Trooper Latin attempted to get
Jones to stop, but he refused to comply and led Latin and other officers on a 14-

mile chase. During the chase, officers observed Jones throw a powdery
substance and a brown paper bag out the window of his car. The officers
eventually forced Jones off the road, and when he got out of his car they
observed white powder fall from his lap. They also observed white powder in
the interior of the car, discovered it at the various places along the highway
where Jones threw items out the window, and after obtaining a search warrant,
recovered hundreds of small plastic baggies and an electronic scale from the
car. A forensic examiner later determined that the white powder was cocaine,
with a total weight of slightly more than 100 grams.
B. Waiver of Right to Counsel
3

Jones was indicted on a single count of possession of cocaine with intent to

distribute in violation of 21 U.S.C. 841(a)(1). He pled not guilty and the
District Court appointed counsel. In December 2003, Jones wrote a letter to the
District Court Judge requesting new counsel. He contended that his appointed
counsel had not communicated with him about the case, misrepresented the
charges and possible sentence, and refused to file motions Jones wanted him to
file. In January 2004, the District Court held an ex parte hearing at which Jones
stated that he did not wish his appointed counsel to be removed. Two months
later, however, Jones renewed his objections, and his appointed counsel filed a
request to be relieved of his duties. The District Court granted this request and
appointed the Federal Defender's Office to represent Jones, which in turn
designated attorney Edward Rymsza.

Rymsza subsequently filed a motion to withdraw as counsel, and at an ex parte

hearing in August 2004, he informed the Court that Jones wished to proceed
pro se. Rymsza stated that the attorney-client relationship had been "rocky" and
that Jones had repeatedly questioned Rymsza's dedication to the case. Rymsza
also noted that Jones wanted to pursue trial strategies he could not condone,
and that Jones had been "very adamant in his desire to proceed pro se or not
have me on the case." The following colloquy then occurred between the Court
and Jones:

THE COURT: [D]o you wish Mr. Rymsza to continue to represent you in this
case?

DEFENDANT JONES: No, I don't.

THE COURT: Do you wish to proceed as your own attorney?

DEFENDANT JONES: Either that or be appointed another counsel.

THE COURT: I'm asking you whether you wish to proceed with your own
attorney. You have already had two attorneys in this case, and we just simply
can't keep appointing counsel after counsel after counsel in a given case.

10

Do you wish to proceed on your own as your own attorney?

11

DEFENDANT JONES: If the Court would not allow me to obtain new counsel,
then yes, I would like to proceed pro se.

12

THE COURT: Well, I'm going to ask you questions about whether or not you
should represent yourself and what your knowledge of the law is and that kind
of thing, but I'll make the decision after I hear your views later today or
possibly tomorrow as to whether we will appoint new counsel for you.

13

...

14

THE COURT: All right, now have you ever studied law?

15

DEFENDANT JONES: No.

16

THE COURT: Do you understand that if you represent yourself you are
completely on your own?

17

DEFENDANT JONES: I believe that would be the case. I would ask that the
counsel [sic] appoint someone to sit in for legal advice in case I want to be
cross examined or examined, that somebody would be there to question me.

18

THE COURT: Well, we do not appoint counsel in a stand-by position to give

you legal advice. The only reason we appoint counsel, if you try this case
yourself, is that if the situation gets so bad that we no longer can permit you to
try it yourself.

19

Assume you violate some rule or something like that or some order. Then
stand-by counsel would come in and take over the case. But stand-by counsel is
not appointed to give you advice. Do you understand that?

20

DEFENDANT JONES: Yes.

21

THE COURT: All right. Do you understand that if you represent yourself you
would be responsible for the presentation of your case, and you must abide by
the rules of evidence at the trial? Do you understand that?

22

DEFENDANT JONES: Yes.

23

THE COURT: Are you familiar with the Federal Rules of Evidence and
Criminal Procedure?

24

DEFENDANT JONES: Somewhat I am, yes.

25

THE COURT: You are somewhat?

26

DEFENDANT JONES: Somewhat, yes.

27

THE COURT: Do you still desire to represent yourself rather than have Mr.
Rymsza Mr. Rymsza represent you?

28

DEFENDANT JONES: Yes.

29

THE COURT: Is your decision entirely voluntary?

30

DEFENDANT JONES: Yes.

31

The Court then asked Rymsza if, in his opinion, Jones' decision to proceed pro
se was knowing, intelligent, and voluntary, and Rymsza stated that it was. The
Court concluded that Jones' waiver of his right to counsel was indeed knowing,
intelligent, and voluntary, and granted Rymsza's motion to withdraw.

32

After a short recess, the Court informed Jones that it had decided to appoint
new counsel, but noted that this was "the third attorney" he would have and "if
you disagree with the next one, we will not appoint additional counsel for you."
The Court also informed Jones that new counsel could not be ready to try the
case before October 2004, and asked if that was acceptable. Jones replied:

33

DEFENDANT JONES: Your Honor,. . . there would be no way to proceed pro

se with counsel that could directly examine me if I was going to want to testify
on my own behalf.

34

THE COURT: I don't understand what you're asking me. You want to act as

34

THE COURT: I don't understand what you're asking me. You want to act as
your attorney except you want some attorney to examine you when you are on
the stand?

35

DEFENDANT JONES: Yes.

36

THE COURT: We don't operate under those like that. If you represent
yourself, you can get on the stand and give your story. So we will only appoint
new counsel for you after this third one to act as stand-by counsel.

37

Do you do you object if we put this case on the October list?

38

DEFENDANT JONES: No. Your Honor, I would rather proceed pro se, but I
would I would accept that if it was on the October list.

39

THE COURT: You mean you would rather proceed pro se despite the
disadvantages of representing yourself . . . than have us appoint new counsel
for you? Is that what you're saying?

40

DEFENDANT JONES: Yes.

41

As a result of this colloquy, the District Court concluded that Jones "said he
wants to proceed pro se and I I think he seems capable certainly capable
of doing that. And I will make a finding that he knowingly, intelligently and
voluntarily waives his right to counsel and desires to proceed pro se."
C. Conviction and Sentence

42

Jones represented himself and was convicted. The District Court appointed new
counsel to represent Jones at sentencing. Before trial, the Government filed an
information pursuant to 21 U.S.C. 851(a) stating that it intended to seek an
enhanced sentence based on two prior felony drug convictions. Under U.S.S.G.
4B1.1, these convictions resulted in a "career offender" designation that
increased Jones' Sentencing Guidelines range from 57-71 months to 262-327
months in prison. Jones filed a motion for a downward departure on the ground
that his designation as a career offender overrepresented his criminal history.
The District Court denied this motion and sentenced Jones to 264 months in
prison, followed by 6 years of supervised release and a $100 special
assessment. Jones appealed.1
D. Appeal

43

Jones raises several issues on his appeal. First, he contends that his decision to
proceed pro se was not knowing, intelligent, and voluntary, and that the District
Court failed to conduct the proper inquiry to assure that the waiver of his right
to counsel was effective. Second, he argues that the District Court erred in
refusing to grant a mistrial based on two alleged trial errors: (1) Trooper Latin's
testimony (upon cross-examination by Jones) that the arresting officers knew
Jones had a criminal record; and (2) two statements by the prosecutor that, in
Jones' view, were adverse comments on his refusal to testify in his own
defense. Third, he contends that his sentence (as enhanced by the 4B1.1
career offender provision) is unreasonable because it does not comport with the
sentencing factors set forth in 18 U.S.C. 3553(a). Finally, he asserts that
because his prior convictions resulted in an enhanced statutory maximum under
21 U.S.C. 841(b)(1)(C), the Government should have charged them in the
indictment and proved their existence to the jury beyond a reasonable doubt.

44

As explained below, Jones' waiver of his right to counsel was ineffective, and
thus we must vacate his conviction and remand to the District Court for a new
trial. We have no cause, therefore, to reach any of Jones' other challenges to his
conviction and sentence.

II. Waiver of Right to Counsel

45

It is well established that the Sixth Amendment protects a defendant's right to

have counsel for his defense, and his right to refuse counsel and represent
himself. Faretta v. California, 422 U.S. 806, 814, 820, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975); United States v. Stubbs, 281 F.3d 109, 116 (3d Cir.2002).
A defendant who wishes to represent himself "must be allowed to make that
choice, even if it works ultimately to his own detriment." United States v.
Peppers, 302 F.3d 120, 130 (3d Cir.2002) (internal quotation marks omitted).
Before deciding a defendant's request to proceed pro se, however, "the trial
court [bears] the weighty responsibility of conducting a sufficiently penetrating
inquiry to satisfy itself that the defendant's waiver of counsel is knowing and
understanding as well as voluntary." Id. at 130-31; Stubbs, 281 F.3d at 118
(same); see also United States v. Welty, 674 F.2d 185, 187 (3d Cir.1982)
("Since the decision to proceed pro se involves a waiver of the defendant's sixth
amendment right to counsel, the district court . . . has the responsibility of
ensuring that any decision by the defendant to represent himself is intelligently
and competently made.").

46

In conducting this inquiry, "[p]erfunctory questioning is not sufficient." Welty,

674 F.2d at 187. Rather, a District Court must engage in a "penetrating and
comprehensive examination of all the circumstances." Peppers, 302 F.3d at 131

(internal quotation marks omitted); Stubbs, 281 F.3d at 118 (same); Welty, 674
F.2d at 189 (same).2 The purpose of the inquiry is to establish that the
defendant: (1) has "clearly and unequivocally" asserted his desire to represent
himself; (2) "understands the nature of the charges, the range of possible
punishments, potential defenses, technical problems that [he] may encounter,
and any other facts important to a general understanding of the risks involved";
and (3) is competent to stand trial. Peppers, 302 F.3d at 132, 134. 3 To satisfy
these criteria, the defendant must be "specific[ally] forewarn[ed] of the risks
that foregoing counsel's trained representation entails," id. at 133, and he must
be "made aware of the dangers and disadvantages of self-representation, so that
the record will establish that `he knows what he is doing and his choice is made
with eyes open.'" Faretta, 422 U.S. at 835, 95 S.Ct. 2525; Stubbs, 281 F.3d at
118 (same).
47

There is, of course, "no talismanic formula for the [district] court's inquiry."
Peppers, 302 F.3d at 135; see Welty, 674 F.2d at 189 (noting that "we do not
require a detailed listing of advice similar to that mandated for guilty plea
proceedings conducted pursuant to Rule 1 of the Federal Rules of Criminal
Procedure"). Nonetheless, in addition to the basic inquiry noted above, our
Court has noted that a district court must inform a defendant who wishes to
proceed pro se that: "he will have to conduct his defense in accordance with the
Federal Rules of Evidence and Criminal Procedure, rules with which he may
not be familiar; that the defendant may be hampered in presenting his best
defense by his lack of knowledge of the law; and that the effectiveness of his
defense may well be diminished by his dual role as attorney and accused."
Welty, 674 F.2d at 188. Indeed, in Peppers we set out model questions derived
from the Federal Judicial Center's Bench Book for United States District Court
Judges, which provide a "useful framework" in deciding whether a defendant
knowingly and voluntarily wishes to proceed pro se. 302 F.3d at 136-37.4

48

Our review of a defendant's decision to proceed pro se is plenary, see Stubbs,

281 F.3d at 113 n. 2, and we "must indulge every reasonable presumption
against a waiver of counsel." Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir.2000).
When a waiver is deemed ineffective (i.e., not knowing, intelligent, and
voluntary), there is no harmless error review, and the conviction must be
vacated and the case remanded for a new trial. Stubbs, 281 F.3d at 117, 121.

III. Analysis
A. Clear and Unequivocal Waiver
49

Much as we appreciate the difficult balancing required of district judges in

cases like this one, we cannot conclude that Jones clearly and unequivocally
waived his right to counsel. To review, Jones stated several times that he only
wished to proceed pro se if the Court would not appoint another attorney to
replace Rymsza. The Court did not approve new counsel at the outset, and
examined Jones on his desire and ability to represent himself. The Court also
told Jones that "[t]he only reason we appoint counsel, if you try this case
yourself, is that if the situation gets so bad that we no longer can permit you to
try it yourself," standby counsel would step in. The Court informed Jones that
standby counsel could not give him legal advice or examine him if he testified.5
50

The Court later agreed to appoint a new attorney. Jones asked whether counsel
could examine him on the stand if he wished to proceed pro se, and the Court
told him no and asked if he would object if the case were listed for trial in
October. Jones replied, "No. Your Honor, I would rather proceed pro se, but I
would I would accept that if it was on the October list." The Court then
asked if Jones wanted to proceed pro se "despite the disadvantages of
representing yourself . . . than have us appoint new counsel for you," and Jones
replied that he did. The Court considered the matter closed and decided that
Jones thereafter could proceed pro se.

51

Particularly since we are to "indulge every reasonable presumption against a

waiver of counsel," Buhl, 233 F.3d at 790, we cannot conclude that Jones
clearly and unequivocally wanted to proceed pro se instead of having the Court
appoint full counsel. Jones repeatedly asked for full counsel or, if he was to
proceed pro se, for standby counsel to advise him and question him if he
testified. The District Court understated the role of standby counsel, and
mentioned that new counsel could not try the case until October. Jones replied
that, although he "would rather proceed pro se," he would accept new counsel
to try the case in October. We believe it is reasonable to presume that Jones
was expressing his desire to represent himself with the active assistance of
standby counsel, but since the District Court would not allow that, he would
accept the appointment of new counsel to try the case. Instead, the District
Court took Jones' statement to be a request to proceed pro se regardless of the
limitations on standby counsel. The trial judge did not, however, pursue this
matter by asking additional questions; rather, he simply asked Jones if he
wanted to proceed pro se rather than have full counsel appointed.

52

The District Court apparently presumed that Jones' comment that he "would
rather proceed pro se" meant that, despite the limitations the District Court
placed on standby counsel, Jones still wanted to represent himself. This choice
is not clear from the record, however, and we do not indulge presumptions that
support a waiver of counsel. As noted, we think it equally likely that Jones

meant he would rather represent himself with the active assistance of standby
counsel, but was willing to accept the appointment of full counsel instead. This
backdrop does not allow us to conclude that Jones' waiver was clear and
unequivocal.
B. District Court's Colloquy
53

We also observe that the District Court's formal inquiry of Jones regarding his
decision and ability to proceed pro se skipped several important bases. As
noted above, this Court requires a penetrating and comprehensive evaluation of
the defendant's reasons for proceeding pro se and his capacity to do so, which
must include a detailed, on-the-record explanation of the various problems and
pitfalls the defendant may encounter. As we explained in Peppers, the District
Court's inquiry must establish that the defendant understands "all risks and
consequences associated with his decision for self-representation," and "even
[if] the colloquy skips just one of the [relevant] factors," it fails to establish that
the waiver is knowing, intelligent, and voluntary. 302 F.3d at 135.6

54

The District Court's colloquy with Jones established six things: (1) Jones did
not wish to have Rymsza represent him; (2) he wished to proceed pro se if he
could not have a different lawyer; (3) he had never studied law; (4) he could
have standby counsel, but standby counsel could not give him advice or
question him if he took the stand in his own defense; (5) he would be
responsible for "the presentation of [his] case"; and (6) he was "somewhat"
familiar with the Federal Rules of Evidence and Criminal Procedure. These
issues are, of course, part of the "penetrating and comprehensive examination
of all the circumstances" we require.

55

But other important issues escaped examination. The District Court did not, for
example, inquire whether Jones understood the possible defenses available to
him, nor did it explain that it could not give him any assistance. It did not
discuss any of the potential problems that an incarcerated defendant might
encounter in obtaining evidence and locating and questioning witnesses. Upon
hearing that Jones was only "somewhat" familiar with the Rules of Evidence
and Criminal Procedure, the Court did not ask any follow-up questions to
determine the extent of his understanding, and whether he knew that these rules
prohibited him from simply telling the jury his story. Moreover, the Court
never informed Jones that representing himself was inadvisable.

56

The District Court also never informed Jones of the magnitude of the sentence
he could receive as a career offender under the Sentencing Guidelines (which

nearly quintupled the sentence he would otherwise receive), or of the fact that
his prior drug convictions raised the statutory maximum punishment to 30
years in prison. The Government argues that the possible sentence was
discussed at Jones' initial appearance before a Magistrate Judge in July 2003
(more than a year before the colloquy that is our focus), and thus Jones knew
what he faced. As explained above, we reject the approach of some of our sister
Circuits that allows examination of the record as a whole in an attempt to divine
what the defendant understands about the consequences of proceeding pro se.
A complete, on-the-record colloquy with the defendant, one that assures he
understands all the risks of proceeding without an attorney at the time he makes
that choice, is in our view a significantly better way of protecting the right to
counsel than the whole-record approach.
57

Nonetheless, we have on occasion looked beyond the District Court's colloquy

to determine whether a defendant understood the charges and sentence, most
notably in United States v. McFadden, 630 F.2d 963 (3d Cir.1980). McFadden
involved a defendant who "unquestionably" sought to "employ complaints
against counsel as a dilatory tactic in order to postpone trial, raise a Speedy
Trial Act claim, or await possible death or unavailability of prosecution
witnesses." Id. at 972. We recognized that in those circumstances the defendant
was not entitled to challenge the effectiveness of his waiver where the District
Court engaged in a lengthy examination of his reasons for proceeding pro se
and the record revealed that he had been informed numerous times, by the
Court and appointed counsel, of the charges, possible sentence, available
defenses, evidence, and the limitations he would face if he refused to accept
counsel's advice. In Welty (decided by a panel that included two of the judges
who considered McFadden), we explained that McFadden "represents the
furthest that this court has gone in upholding a defendant's waiver of counsel,"
and noted that the unique circumstances of that case coupled with the fact
that McFadden was appointed standby counsel who gave advice, examined
McFadden on the stand, and made opening and closing statements presented
a limited circumstance in which we might look beyond the colloquy. Welty, 674
F.2d at 192-93. We explained, however, that McFadden provides "no authority"
for relieving the District Court of its usual obligation to conduct a detailed and
comprehensive inquiry. Id. at 193. 7

58

There is no suggestion that Jones sought to proceed pro se for an improper

purpose, such as to delay trial or beget a Speedy Trial Act violation. Moreover,
to the extent it is relevant, Jones was not permitted the active assistance of
standby counsel. See Welty, 674 F.2d at 193 (distinguishing McFadden, inter
alia, on the ground that "the Court in [that case], unlike the court in the instant
case, appointed a . . . lawyer to serve as standby counsel[,]. . . [who] sat at the

counsel table with McFadden, was available to give McFadden any legal advice
he needed, examined McFadden when he took the stand, and made opening and
closing statements on McFadden's behalf"). McFadden does not, therefore,
control this case.
59

Even if we were inclined to look beyond the District Court's colloquy, we note
that the record contains no evidence that Jones was ever directly informed of
the punishment he faced. At his initial appearance in July 2003, 13 months
before the District Court questioned him about his desire to proceed pro se, the
only mention of the potential punishment was a short statement by the
prosecutor to the Magistrate Judge, in Jones' presence, that Jones was a "career
criminal" who would face a statutory maximum of 30 years in prison and a
minimum Guidelines sentence of 21 years. The Magistrate Judge did not
attempt to ascertain whether Jones understood this sentence, and apparently it
was never mentioned again. Indeed, there is evidence in the record that Jones
did not understand his possible punishment: in his December 2003 letter to the
District Court requesting that his first attorney be replaced, Jones stated
(erroneously) that "the actual highest possible sentence I c[an] receive [is] 20
yrs. (240 mths.)."

60

In any event, the prosecutor's single mention of the potential punishment at a

hearing more than a year before Jones expressed his desire to proceed pro se
was insufficient, as a matter of law, to demonstrate that he was aware of the
magnitude of punishment he faced. We require a detailed colloquy with the
defendant explaining the various factors relevant to his decision to represent
himself, at the time he seeks to waive counsel, precisely to avoid such
problems. The knowing, intelligent, and voluntary nature of a defendant's
decision to waive his fundamental right to counsel should not hinge on fuzzy
inferences about his understanding of crucial subjects gleaned from comments
made by others at hearings months or even years before.

*****
61
62

IV.

All of these matters are necessary components of the penetrating and

comprehensive examination of a defendant's request to waive counsel.
Although no scripted recital is required for this inquiry, we do require that all of
the subjects covered in the model questions set forth in Peppers be fully
explored in the inquiry, to the extent those subjects are relevant.8 The colloquy
here did not satisfy this standard.

63

We conclude that, on the record before us, Jones did not express a clear and
unequivocal desire to proceed pro se, nor can we determine that his waiver of
the right to counsel was knowing, intelligent, and voluntary. Regardless of the
strength of the evidence against Jones, we are constrained to vacate his
conviction and remand to the District Court for a new trial.

Notes:
*

Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation

The District Court had subject matter jurisdiction over this case pursuant to 18
U.S.C. 3231, since it concerns offenses against the laws of the United States.
We have jurisdiction over the appeal under 28 U.S.C. 1291

A "penetrating and comprehensive examination" of the defendant's request to

proceedpro se is not required in every court. See, e.g., Ferguson v. Bruton, 217
F.3d 983, 985 (8th Cir.2000) (per curiam) (holding that "a specific warning on
the record of the dangers and disadvantages of self-representation is not an
absolute necessity in every case if the record shows that the defendant had this
required knowledge from other sources" (internal quotation marks omitted));
United States v. Singleton, 107 F.3d 1091, 1098 (4th Cir. 1997) (noting that a
District Court's "failure to conduct a formal inquiry [is not] per se reversible
error. . . . [T]he trial judge is merely required to determine the sufficiency of
the waiver from the record as a whole rather than from a formalistic, deliberate,
and searching inquiry." (internal quotation marks omitted)); see also United
States v. Bell, 901 F.2d 574, 577 n. 2 (7th Cir.1990) (noting "a split in the
circuits over the extent of inquiry necessary before allowing an accused to
waive his right to counsel," and citing our decision in Welty as among those
cases that "require either a `searching inquiry' or a special hearing to ensure that
the defendant understands the dangers of proceeding pro se" (citing McDowell
v. United States, 484 U.S. 980, 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987)
(White, J., dissenting from denial of certiorari))).

Jones' competence to stand trial is not at issue

These questions are as follows:

Have you ever studied law?

Have you ever represented yourself in a criminal action?

Do you understand that you are charged with these crimes: [state the crimes
with which the defendant is charged]?

Do you understand that the U.S. Sentencing Commission has issued sentencing
guidelines that will be used in determining your sentence if you are found
guilty?

Do you understand that if you are found guilty of the crime charged in Count 1,
the Court must impose an assessment of $ ______, and could sentence you to as
many as years in prison and fine you as much as $ ______? [Ask defendant this
question for each count of the indictment or information.]

Do you understand that if you are found guilty of more than one of these
crimes, this Court can order that the sentences be served consecutively, that is,
one after another?

Do you understand that if you represent yourself, you are on your own? I
cannot tell you or even advise you as to how you should try your case
7a. Do you know what defenses there might be to the offenses with which you
are charged? Do you understand that an attorney may be aware of ways of
defending against these charges that may not occur to you since you are not a
lawyer? Do you understand that I cannot give you any advice about these
matters?

Are you familiar with the Federal Rules of Evidence?

8a. Do you understand that the Federal Rules of Evidence govern what
evidence may or may not be introduced at trial and that, in representing
yourself, you must abide by those rules?

Are you familiar with the Federal Rules of Criminal Procedure?

9a. Do you understand that these rules govern the way a criminal action is tried
in federal court? Do you understand that you must follow these rules?

10

Do you understand that you must proceed by calling witnesses and asking them
questions, and that, except when and if you yourself testify, you will not be
permitted to tell the jury matters that you wish them to consider as evidence?

10a. Do you understand that it may be much easier for an attorney to contact
potential witnesses, gather evidence, and question witnesses than it may be for
you?
11

I must advise you that in my opinion a trained lawyer would defend you far
better than you could defend yourself. I think it unwise of you to try to
represent yourself. You are not familiar with the law. You are not familiar with
court procedure. You are not familiar with the rules of evidence. I strongly urge
you not to try to represent yourself

12

Now, in light of the penalties that you might suffer if you are found guilty, and
in light of all of the difficulties of representing yourself, do you still desire to
represent yourself and to give up your right to be represented by a lawyer?

13

Are you making this decision freely, and does it reflect your personal desire?

14

Do you have any questions, or do you want me to clarify or explain further

anything that we have discussed here?
Peppers, 302 F.3d at 136-37 (citing Fed. Judicial Ctr., Bench Book for U.S.
Dist. Ct. Judges 1.02 (4th ed.2000)) (footnotes omitted; bracketed material in
original).

The District Court took an overly restrictive view of the role of standby counsel
in this manner. We have expressly approved arrangements in which standby
counsel advises apro se defendant, makes opening or closing statements, and
questions the defendant if he testifies in his own defense. See United States v.
McFadden, 630 F.2d 963, 969 & n. 12 (3d Cir.1980); see also United States v.
Bertoli, 994 F.2d 1002, 1019 (3d Cir.1993) (noting that standby counsel "must
be available if and when the accused requests help," "must be ready to step in if
the accused wishes to terminate his own representation," may "explain and
enforce the basic rules of courtroom protocol to the accused," and serves to
"overcome routine obstacles that may hinder effective pro se representation")

The District Court conducted its colloquy with Jonesex parte, without the
Government's participation. Although we have found no authority prohibiting
such an approach, we believe it inadvisable. As the Seventh Circuit noted in
Bell, the Assistant United States Attorney serves a useful function in assuring
that a district court's colloquy is sufficient. See 901 F.2d at 578 ("As an officer
of the court, the AUSA has some responsibility to ensure, as far as may be
reasonably possible, the integrity of the proceedings. To this end, the AUSA
should have assisted the magistrate by calling to his attention the possible

inadequacy of [the] warnings."). Indeed, the prosecutor has a strong selfinterest in doing so, for if the colloquy is inadequate, the prosecutor will be
forced to retry the case.
We believe the prosecutor's presence would have been especially advisable in
this case. The District Court conducted its colloquy at a hearing convened to
consider Attorney Rymsza's motion to withdraw as Jones' counsel. We of
course have no question that Rymsza acted in good faith and desired to benefit
his soon-to-be-former client as much as possible under the circumstances, but
that is beside the point. The fact remains that, on such a motion, Rymsza's
interests were opposed to those of Jones. Thus, the District Court's question to
Rymsza whether he believed Jones knowingly, intelligently, and voluntarily
waived his right to counsel was misdirected; that question would have been
better addressed to the Government's attorney.
7

InStubbs, we stated that, in a case where the charges and potential punishment
were formally explained to the defendant on at least three separate occasions,
the trial judge need not have reminded the defendant of them again during the
waiver-of-counsel colloquy. See 281 F.3d at 120 n. 9 (citing McFadden, 630
F.2d at 972). The Government relies on this statement for the expansive
proposition that because the charges and possible sentence a defendant faces
are usually entered into the record at the initial appearance, there is no need to
include these as part of the District Court's examination. Our decision in Stubbs
held that numerous other problems with the District Court's colloquy in that
case rendered the defendant's waiver ineffective, and thus the cited footnote
was dicta. Also, as is clear from the discussion below, Jones' case is
distinguishable from the situation in Stubbs (and the situation in McFadden).

There is, of course, no need to explain factors that are irrelevant to the
defendant's circumstances, and the District Court is not required to probe the
defendant's understanding of a particular issue more deeply if his initial answer
to a question regarding that issue is sufficient to satisfy the requirements of the
District Court's inquirySee, e.g., Peppers, 302 F.3d at 134 (noting that the
District Court must inquire into the circumstances "as thoroughly as needed to
satisfy itself that the defendant understands the nature of the charges, the range
of possible punishments, potential defenses, technical problems that the
defendant may encounter, and any other facts important to a general
understanding of the risks involved" (internal quotation marks omitted)). Here,
however, the District Court did not ask about many factors that were relevant to
Jones, and did not follow up on questions to which Jones gave ambivalent or
tentative answers (such as his statement that he was only "somewhat" familiar
with the rules of trial).