United States v. Hansen , 929 F.3d 1238 ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
July 15, 2019
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-4159
LOUIS DELYNN HANSEN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:16-CR-00534-CW-1)
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Office of the Federal Public Defender, Denver,
Colorado, for Defendant-Appellant.
Gregory S. Knapp, Attorney (Richard E. Zuckerman, Principal Deputy Assistant
Attorney General; S. Robert Lyons, Chief, Criminal Appeals & Tax Enforcement
Policy Section; and Gregory Victor Davis, Attorney; with him on the brief), Tax
Division, U.S. Dept. of Justice, Washington, D.C. for Plaintiff-Appellee.
Before HOLMES, BALDOCK, and CARSON, Circuit Judges.
HOLMES, Circuit Judge.
Louis Hansen, a taxpayer who ascribes to legal theories associated with
sovereign-citizen and tax-protester movements, was indicted for tax evasion in
violation of 26 U.S.C. § 7201 and tax obstruction in violation of 26 U.S.C.
§ 7212(a). Before trial, Mr. Hansen purported to waive his right to counsel. The
district court held a hearing to determine whether this waiver was made
knowingly and intelligently. At that hearing, the district court asked Mr. Hansen,
among other things, whether he understood he would be required to follow federal
procedural and evidentiary rules if he proceeded without counsel. Mr. Hansen’s
response was at best ambiguous and unclear; at one juncture, he specifically told
the court that he did not understand that he would be required to abide by these
rules. Without seeking clarification from Mr. Hansen, the court accepted the
waiver. Mr. Hansen represented himself at trial, and the jury convicted him of
both tax evasion and tax obstruction.
On appeal, Mr. Hansen argues that his waiver of the right to counsel was
invalid because it was not made knowingly and intelligently. We recount the
relevant background and legal standards before agreeing with Mr. Hansen. We
conclude that the court incorrectly determined that Mr. Hansen’s waiver was
knowing and intelligent.
In particular, we determine that the court failed to engage in a sufficiently
thorough colloquy with Mr. Hansen that would properly warn him that—if he
proceeded pro se—he would be obliged to adhere to federal procedural and
evidentiary rules. We recognize that, under limited circumstances, certain case-
2
specific factors could permit us to conclude that, despite the district court’s
inadequate warnings, it nevertheless correctly determined that Mr. Hansen’s
waiver of the right to counsel was knowing and intelligent at the time it was
made. But, after careful consideration of the record, we discern no such case-
specific factors.
Accordingly, we reverse the district court’s waiver determination and
remand the case, instructing the court to vacate its judgment regarding Mr.
Hansen in full and to conduct further proceedings consistent with this opinion.
I
We start by describing (1) the conduct that led to Mr. Hansen’s indictment;
(2) his indictment, initial appearance, and surrounding events; (3) the
circumstances of the pretrial hearing that addressed the validity of Mr. Hansen’s
purported waiver of the right to counsel; and (4) pertinent aspects of Mr.
Hansen’s post-hearing conduct.
A
At trial, Mr. Hansen testified that he began falling behind on his taxes in
1999 after making the decision to pay various creditors “instead of paying the
IRS.” R., Vol. II, at 472, 546 (Trial Tr., dated July 7, 10–12, 2017); see also id.,Vol. III, at 68–69, ¶¶ 4–9 (Presentence Investigation Report (“PSR”), filed Sept.
14, 2017). Over time, Mr. Hansen’s tax liability grew, with penalties and interest
added to the original unpaid taxes. By 2012, Mr. Hansen owed the IRS $342,699.
3
Mr. Hansen initially tried to negotiate a payment plan with the IRS, but he
testified that he later made the unilateral decision to send the IRS multiple checks
written on closed accounts. He also sent the IRS a letter claiming that these
checks would pay his outstanding taxes. 1 While Mr. Hansen was sending these
checks, the IRS contacted Mr. Hansen—through a tax-resolution firm that he had
hired—to instruct him to stop sending the checks. Even after Mr. Hansen
received this admonishment, he continued to send additional checks written on
closed accounts to the IRS; the financial institution declined to honor these
checks because the accounts were closed. Mr. Hansen did make some valid
payments toward his outstanding taxes, however, but he never reached a
1
The idea to write checks on a closed account apparently grew out of
certain seminars that Mr. Hansen attended. These seminars taught taxpayers that
they could “setoff” tax debts using checks drawn on closed accounts. This
teaching appears to derive from an idiosyncratic reading of Black’s Law
Dictionary, which defines a “closed account” as “[a]n account that no further
credits or debits may be added to but that remains open for adjustment or setoff.”
Account, B LACK ’ S L AW D ICTIONARY 22 (11th ed. 2019) (emphasis added). Mr.
Hansen purported to believe, based on the seminars and this definition, that
“[w]hen someone closes their checking account, it remains open on the bank[’]s
side” for setoffs, and so a taxpayer could “utiliz[e] a closed account and an
[electronic funds transfer] written on that closed account to pay the IRS.” R.,
Vol. VI, Ex. 79 (Email from Mr. Hansen to Berkshire Capital, dated June 8, 2012)
(citing B LACK ’ S L AW D ICTIONARY ). But see Setoff, B LACK ’ S L AW D ICTIONARY
1648 (11th ed. 2019) (“A debtor’s right to reduce the amount of a debt by any sum
the creditor owes the debtor . . . .” (emphasis added)). While Mr. Hansen
professed to believe that these checks would pay off his tax delinquency, he
admitted at trial that he had “no idea” where the money would come from that
was supposedly being used to pay the IRS and that the whole endeavor was
“something desperate.” R., Vol. II, at 502.
4
settlement agreement with the IRS.
B
Mr. Hansen was subsequently charged with committing tax evasion in
violation of 26 U.S.C. § 7201 and tax obstruction in violation of 26 U.S.C.
§ 7212(a). Section 7201 imposes criminal penalties on “[a]ny person who
willfully attempts in any manner to evade or defeat any tax imposed by [the
Internal Revenue Code] or the payment thereof.” Section 7212(a) criminally
sanctions anyone who “corruptly . . . endeavors to . . . impede any officer or
employee of the United States acting in an official capacity under [the Internal
Revenue Code], or in any other way corruptly . . . obstructs or impedes, or
endeavors to obstruct or impede, the due administration of [the Internal Revenue
Code].” The operative indictment charged Mr. Hansen with violating these laws
by presenting the checks to the IRS drawn on closed accounts and by sending the
accompanying letter to the IRS claiming that the checks had paid his tax debt.
At Mr. Hansen’s initial appearance on these charges, a magistrate judge
informed him generally of his “right to be represented in this proceeding,” but
Mr. Hansen declined the appointment of counsel. R., Vol. IV, at 230–31, 235 (Tr.
of Initial Appearance, dated Nov. 17, 2016). Waiver of the right to counsel was
not discussed further at this hearing, though Mr. Hansen did indicate that he was
aware of the charges against him and the penalties associated with those charges.
He truthfully informed the magistrate judge that he did not have a prior criminal
5
record. See id. at 243–44 (“I don’t have a criminal history . . . .”). The remainder
of the hearing largely concerned Mr. Hansen’s challenge to the court’s
jurisdiction over him and whether Mr. Hansen should be released pending trial.
Even before this initial appearance, Mr. Hansen had begun peppering the
district court with filings questioning the court’s jurisdiction over him. For
example, he submitted a document, from “DeLynn of the Lawful House of
Hansen,” that purported to “release and discharge Judge Clark Waddoups from his
emergency war powers jurisdictional duties created by Section 17 of the ‘Trading
with the Enemy Act’” and to “inform the court that [Mr. Hansen], a Private
American National Citizen who has harmed nobody and nothing [does] not
consent to statutory military jurisdiction of any kind.” Id., Vol. I, at 46 (Decl. of
Political Status, and Release and Discharge for Judge Clark Waddoups, filed Nov.
15, 2016). Throughout the proceedings, Mr. Hansen continued to submit filings
that reprised tax-protester and sovereign-citizen theories similar to those that we
have previously rejected as frivolous. See, e.g., Ford v. Pryor, 552 F.3d 1174,
1177 n.2 (10th Cir. 2008); Lonsdale v. United States, 919 F.2d 1440, 1448 (10th
Cir. 1990).
C
Because Mr. Hansen refused appointment of counsel at his initial
appearance, the district court later held a hearing to determine whether Mr.
Hansen was validly waiving his right to counsel. The court started by asking Mr.
6
Hansen whether he wanted to proceed without counsel:
The Court: [I]s it your request, [Mr. Hansen], that you represent
yourself?
Mr. Hansen: I am myself.
The Court: That is not my question. I know you’re yourself. My
question is --
Mr. Hansen: I can’t represent myself because I am myself.
The Court: Do you wish to appear without counsel?
Mr. Hansen: Yes.
R., Vol. I, at 225 (Tr. of Miscellaneous Hr’g, dated Jan. 9, 2017). Moving past
this confusion, the judge proceeded to read Mr. Hansen the indictment, to advise
Mr. Hansen that the maximum punishment allowed by § 7201 was a fine of up to
$100,000 and imprisonment of up to five years, to advise Mr. Hansen that the
maximum punishment allowed by § 7212(a) was a fine of up to $5,000 and
imprisonment of up to three years, 2 and to warn Mr. Hansen that “tax matters can
be complicated” and that trial was fast approaching. Id. at 231.
The court asked Mr. Hansen whether he had any questions. Mr. Hansen
responded: “Your Honor, here is the defendant Louis Delynn Hansen. This is the
2
The transcript of the hearing states that the judge advised Mr. Hansen
about § 7201(a), but 26 U.S.C. § 7201(a) does not exist. Instead, the district
court appears to be discussing Count Two of the operative indictment, which
involves § 7212(a). Notably, the potential penalties mentioned by the district
court correspond to those applicable for violations of § 7212(a). Neither party
addresses this apparent misstatement, and it does not affect our analysis.
7
fiction that the court has named as a defendant. This is not me.” Id. at 232. The
district court brushed off this response because it was “not a question.” Id.
The court then asked the government whether anything else needed to be
addressed. At the government’s request, the district court proceeded to ask Mr.
Hansen whether he was under the influence of any drugs (he responded in the
negative), about his education (he had a chiropractic doctorate), and about
whether he had prior legal experience (he did not have any). More specifically,
as to the last item (i.e., legal experience), Mr. Hansen—who had no prior criminal
record—responded “No,” when the court inquired whether he had “ever been sued
or been a party to a lawsuit.” Id. at 234. Finally, the court asked Mr. Hansen
whether he understood “that in a legal proceeding there are rules that the court
will follow and will require that all of the parties before the court follow.” Id.
Mr. Hansen responded “Yes.” Id.
After providing these answers, Mr. Hansen asked whether accepting
counsel would “put [him] in the jurisdiction of the court.” Id. at 235. The judge
explained to Mr. Hansen that the court already had jurisdiction over him; Mr.
Hansen responded with a stream of jurisdictional statements related to his earlier
filings. See, e.g., id. (“I am not a U.S. citizen, I’m not a citizen of the United
States, I’m an American State National.”). The judge warned Mr. Hansen that
these jurisdictional arguments were frivolous, that they had been rejected by the
courts of appeals, and that he was facing the risk of a term of imprisonment.
8
The judge then circled back to a topic that he had touched on earlier:
The Court: You understand that if you choose to represent
yourself you will be required to comply with the rules of
procedure in this court and the rules of evidence. Do you
understand that?
Mr. Hansen: No.
The Court: If you do not comply with the rules, you will not -- if
you do not commit yourself to being prepared to comply with the
rules, you’re not in a position to represent yourself.
Mr. Hansen: I shouldn’t even be in this court because I am not
the defendant.
Id. at 237 (emphases added). Mr. Hansen then veered into a discussion of how
“President FDR and [C]ongress concocted a fraud upon the American people.”
Id. at 238.
At this point, the government commented that it had “some pause and
concern as to whether it would be appropriate under these circumstances for Mr.
Hansen to represent himself” because Mr. Hansen “specifically said he could not
abide by the rules of procedure and evidence.” Id. at 239–40. Mr. Hansen denied
that he had said he could not abide by the rules, but when asked again whether he
would “endeavor to [his] best effort to comply with the rules of procedure and the
rules of evidence,” he responded: “I can’t represent myself because I am myself.”
Id. at 240. He then returned to his jurisdictional arguments, asking the district
court to “present this United States of America with photo I.D. so that [he could]
face [his] accuser.” Id. at 240–41.
9
Mr. Hansen again asked whether accepting representation would “change
anything as far as jurisdiction.” Id. at 241. After the district court patiently
repeated its assurances that it would not, the government, for a second time,
expressed “some significant concerns as to whether it would be appropriate for
the court to permit [Mr. Hansen] to represent himself in this matter.” Id. at 245.
In response, the court took a recess to allow Mr. Hansen to meet privately with
potential standby counsel. Nothing in the record reveals the substance of that
meeting.
After his meeting with standby counsel, Mr. Hansen apologized for his
earlier outburst. He also affirmed that he would like the standby counsel to be
appointed. After this statement, the district judge stated:
I find that you do fully understand the risks and that with
[standby counsel’s] support and counsel you are capable because
of your education, intelligence and prior experience . . . to
represent yourself. I find that the risks of doing so have been
fully explained to you and the risk of a prosecution that may
result in a conviction is one that you understand.
Id. at 247. The hearing moved on to unrelated issues before concluding.
D
At a later pretrial conference, Mr. Hansen and the court further discussed
his decision to proceed pro se. Mr. Hansen told the court that he would “take the
lead” in his defense but that the standby counsel would ask Mr. Hansen questions
when he testified. R., Vol. II, at 107 (Tr. of Pretrial Conf., dated June 30, 2017).
10
Mr. Hansen also wanted his standby counsel to address “legal issues that may
arise outside of the presence of the jury.” Id. at 107–08. During this hearing, the
district court told Mr. Hansen that “although [he had] chosen to present [his] own
defense, [he was] still required to follow the rules of procedure and the rules of
evidence.” Id. at 119. Mr. Hansen, however, did not respond to this statement.
At trial, Mr. Hansen called three witnesses in addition to himself and
cross-examined the government’s witnesses. Throughout his opening and closing
statements, he oscillated between arguing that his checks had been accepted by
the IRS and arguing that he believed that the checks had been accepted, even if
they were not. The jury found him guilty on both counts. The district court
sentenced Mr. Hansen to thirty-three months in prison, imposed three years of
supervised release with various special conditions of supervision, and ordered that
Mr. Hansen pay $342,699 in restitution.
Mr. Hansen appealed.
II
We now discuss the legal standards governing our review of whether the
district court erred in determining that Mr. Hansen waived his right to counsel
knowingly and intelligently. In this discussion, we clarify that our caselaw
requires us to consider all of the circumstances of the particular case that properly
bear on whether the defendant knowingly and intelligently waived the right to
counsel—not just the colloquy between the court and the defendant at the waiver
11
hearing. We also clarify that under controlling precedent the trial court need not
follow a precise script or litany in providing warnings to a defendant regarding
the hazards of self-representation, and that, even if the court fails to properly
convey one or more important warnings to a defendant, this failure will not in
every instance demonstrate that the court erred in finding the waiver knowing and
intelligent at the time it was made. In particular, we recognize that, under limited
circumstances, certain case-specific factors could permit a reviewing court to
conclude that, despite the district court’s inadequate warnings, it correctly
concluded that the defendant’s waiver of the right to counsel was knowing and
intelligent at the time it was made.
A
In discussing the legal framework governing our review of Mr. Hansen’s
waiver, we start with our standard of review. Then, we address the substantive
standards governing the validity of a waiver of the right to counsel. Finally, we
reject two of Mr. Hansen’s related arguments: (1) that our exclusive focus in
assessing the validity of a defendant’s waiver of the right to counsel is the trial
court’s self-representation warnings to the defendant in the waiver hearing (i.e.,
the so-called Faretta hearing), and (2) that, if the court fails to adequately warn
the defendant about even one subject that the Supreme Court highlighted in Von
Moltke v. Gillies, 332 U.S. 708 (1948) (plurality opinion), then a reviewing court
must conclude that the defendant’s waiver was not knowing and intelligent and
12
reverse.
1
“We review the validity of a waiver of the right to counsel de novo and the
underlying factual findings for clear error.” United States v. Williamson (“Brett
Williamson”), 859 F.3d 843, 862 (10th Cir. 2017), cert. denied, 138 S. Ct. 1324(2018). While our published cases have consistently engaged in de novo review
of waivers of the right to counsel, see, e.g., United States v. Vann, 776 F.3d 746,
762 (10th Cir. 2015); United States v. Krejcarek, 453 F.3d 1290, 1296 (10th Cir.
2006); United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir. 1997), the
government suggests that plain-error review may be appropriate here because Mr.
Hansen failed to object to the district court’s decision to allow him to proceed pro
se, see Aplee.’s Resp. Br. at 18. 3 But, while Mr. Hansen did not object to the
court’s waiver decision, “the district court sua sponte raise[d] and explicitly
resolve[d] an issue of law on the merits,” i.e., whether the waiver was knowing
and intelligent. United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328
(10th Cir. 2003). We have said that, “[i]n such a case, review on appeal is not for
3
One panel of this court has stated that the validity of a waiver of the
right to counsel is subject to plain-error review. See United States v. Green, 336
F. App’x 837, 839 n.2 (10th Cir. 2009) (unpublished). However, it is axiomatic
that unpublished decisions are not controlling authority, and we decline to adopt
in this published opinion Green’s non-binding statement that plain error is the
appropriate standard for reviewing the validity of a defendant’s waiver of the
right to counsel.
13
‘plain error,’ but is subject to the same standard of appellate review that would be
applicable if the appellant had properly raised the issue.” Id.; see United States v.
Jim, 786 F.3d 802, 810 (10th Cir. 2015) (reviewing de novo, in reliance on
Hernandez-Rodriguez, whether defendant’s guilty plea was knowing and
voluntary); cf. Von Moltke, 332 U.S. at 723 (“The constitutional right of an
accused to be represented by counsel invokes, of itself, the protection of a trial
court, in which the accused—whose life or liberty is at stake—is without
counsel.” (emphasis added) (quoting Johnson v. Zerbst, 304 U.S. 458, 465
(1938))).
Furthermore, our approach accords with that taken by at least a plurality of
our sister circuits. See United States v. Erskine, 355 F.3d 1161, 1166 (9th Cir.
2004) (“[W]e do not expect pro se defendants to know the perils of
self-representation, and consequently, we cannot expect defendants to recognize
that they have not been correctly and fully advised, let alone to point out the
court’s errors.”); see also United States v. Ductan, 800 F.3d 642, 648 (4th Cir.
2015) (“We find the Ninth Circuit’s reasoning [in Erskine] persuasive, and
conclude that its holding applies equally to cases in which a pro se defendant fails
to object to a district court’s finding of forfeiture [of the right to counsel].”); cf.
United States v. Stanley, 739 F.3d 633, 644 n.2 (11th Cir. 2014) (acknowledging
that “[a]pproaches to this question differ across, and even within, other circuits”
(collecting cases)); United States v. McBride, 362 F.3d 360, 365 (6th Cir. 2004)
14
(commenting that “[o]ur sister circuits uniformly apply a de novo standard of
review to a district court’s conclusion of law that a defendant has waived his right
to counsel” before noting, but not resolving, an intra-circuit split in the Sixth
Circuit’s authority).
Thus, we reject the government’s argument for plain-error review and apply
de novo review to Mr. Hansen’s challenge.
2
“[T]he Constitution does not force a lawyer upon a defendant. He may
waive his Constitutional right to assistance of counsel if he knows what he is
doing and his choice is made with eyes open.” Adams v. U.S. ex rel. McCann,
317 U.S. 269, 279 (1942); accord Iowa v. Tovar, 541 U.S. 77, 87–88 (2004); see
United States v. Turner, 287 F.3d 980, 983 (10th Cir. 2002) (“A lawyer cannot be
forced upon a defendant who wishes to waive his right to counsel even if
self-representation would be detrimental.”); see also Montejo v. Louisiana, 556
U.S. 778, 786 (2009) (“Our precedents . . . place beyond doubt that the Sixth
Amendment right to counsel may be waived by a defendant, so long as
relinquishment of the right is voluntary, knowing, and intelligent.”); Brett
Williamson, 859 F.3d at 861 (“A defendant has the Sixth Amendment right to
waive his right to counsel and represent himself in a criminal case.” (citing
Faretta v. California, 422 U.S. 806, 821 (1975))).
“In the normal course,” Vann, 776 F.3d at 763, “[w]e conduct a two-part
15
test to determine whether a defendant has effectively waived his right to counsel,”
Brett Williamson, 859 F.3d at 862. “First, we must determine whether the
defendant voluntarily waived his right to counsel.” Id. (quoting Taylor, 113 F.3d
at 1140). However, that question is not implicated here. Mr. Hansen does not
argue that his waiver was involuntary; so, we need not address this aspect of his
waiver’s validity. “[S]econd, we must determine whether the defendant’s waiver
of his right to counsel was made knowingly and intelligently.” Id. (quoting
Taylor, 113 F.3d at 1140); see Faretta, 422 U.S. at 835 (stating that “the accused
must ‘knowingly and intelligently’ forgo” those benefits traditionally “associated
with the right to counsel” (citing Johnson, 304 U.S. at 464–65)).
This second, knowing-and-intelligent inquiry is the focus of our analysis.
“[K]nowingly and intelligently waiving the right to counsel is different from
making a wise decision.” Turner, 287 F.3d at 984. Instead, the Supreme Court’s
and our own cases make clear that, “[b]efore a court may grant a waiver, it must
ensure the defendant is ‘aware of the dangers and disadvantages of
self-representation.’” Brett Williamson, 859 F.3d at 862 (alteration in original)
(emphasis added) (quoting Maynard v. Boone, 468 F.3d 665, 676 (10th Cir.
2006)); accord Faretta, 422 U.S. at 835; see Tovar, 541 U.S. at 88–89 (“[B]efore
a defendant may be allowed to proceed pro se, he must be warned [by the district
court] specifically of the hazards ahead.”); Turner, 287 F.3d at 984 (“[K]nowing
and intelligent means only that [a defendant] was reasonably informed by the
16
court of the hazards of self-representation and had sufficient understanding of
those hazards.”).
The “tried-and-true method” for a district court to assess whether a waiver
is being made knowingly and intelligently is to “conduct a thorough and
comprehensive formal inquiry of the defendant on the record.” Vann, 776 F.3d at
763 (quoting United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991)). Such
a formal inquiry typically takes place in the context of a waiver hearing,
customarily referred to as a Faretta hearing, in recognition of the Supreme
Court’s seminal waiver case, Faretta. See id. Faretta hearings are intended to
“ensure[] the defendant is not unwittingly or impulsively disposing of his
constitutional right to counsel,” id., by determining whether “the defendant is
aware of the nature of the charges, the range of allowable punishments and
possible defenses, and is fully informed of the risks of proceeding pro se,” Brett
Williamson, 859 F.3d at 862 (quoting Vann, 776 F.3d at 763). These topics of
inquiry stem from Justice Black’s plurality opinion in Von Moltke. See 332 U.S.
at 724.
We have specifically recognized these topics and, in discussing Justice
Black’s opinion, observed that a knowing and intelligent waiver can only be made
with the defendant’s “apprehension” of:
the nature of the charges, the statutory offenses included within
them, the range of allowable punishments thereunder, possible
defenses to the charges and circumstances in mitigation thereof,
17
and all other facts essential to a broad understanding of the
whole matter.
United States v. Weninger, 624 F.2d 163, 164 (10th Cir. 1980) (emphasis added)
(quoting Von Moltke, 332 U.S. at 724). These topics, which substantially overlap
with those discussed in Brett Williamson, may be aptly referred to as the “Von
Moltke factors.” United States v. Behrens, 551 F. App’x 452, 457 (10th Cir.
2014) (unpublished); see, e.g., United States v. McConnell, 749 F.2d 1441, 1451
n.5 (10th Cir. 1984) (noting that such areas of inquiry are “taken from the
Supreme Court’s opinion in Von Moltke”).
The Supreme Court has emphasized that the requisite thoroughness of the
district court’s inquiry into the relevant factors should be viewed through a
“pragmatic” lens—that is, the degree of thoroughness should correspond to how
“substantial” and “obvious” the dangers of self-representation are at any
particular stage of the criminal proceedings. Patterson v. Illinois, 487 U.S. 285,
298, 299–300 (1988); see Tovar, 541 U.S. at 90 (“Patterson describes a
‘pragmatic approach to the waiver question,’ one that asks ‘what purposes a
lawyer can serve at the particular stage of the proceedings in question, and what
assistance he could provide to an accused at that stage,’ in order ‘to determine the
scope of the Sixth Amendment right to counsel, and the type of warnings and
procedures that should be required before a waiver of that right will be
recognized.’” (quoting Patterson, 487 U.S. at 298)). Thus, as relevant here, the
18
Supreme Court “require[s] a more searching or formal inquiry before permitting
an accused to waive his right to counsel at trial than [it] require[s] for a Sixth
Amendment waiver during postindictment questioning.” Patterson, 487 U.S. at
299. More specifically, “[w]arnings of the pitfalls of proceeding to trial without
counsel . . . must be ‘rigorous[ly]’ conveyed.” Tovar, 541 U.S. at 89 (second
alteration in original) (quoting Patterson, 487 U.S. at 298).
“[W]e ‘indulge in every reasonable presumption against waiver.’” United
States v. Simpson, 845 F.3d 1039, 1046 (10th Cir.) (quoting Brewer v. Williams,
430 U.S. 387, 404 (1977)), cert. denied, 138 S. Ct. 140 (2017); see Von Moltke,
332 U.S. at 723–24 (“To discharge this duty [of inquiry] properly in light of the
strong presumption against waiver of the constitutional right to counsel, a judge
must investigate as long and as thoroughly as the circumstances of the case before
him demand.” (emphasis added) (footnote omitted)); United States v. Padilla, 819
F.2d 952, 956 (10th Cir. 1987) (“The task of ensuring that defendant possesses
the requisite understanding initially falls on the trial judge, who must bear in
mind the strong presumption against waiver.” (emphasis added)); United States v.
Williamson (“John Williamson”), 806 F.2d 216, 219–20 (10th Cir. 1986) (“Courts
indulge every presumption against the waiver of fundamental constitutional
rights. . . . [D]oubts concerning an attorney waiver must be resolved in the
defendant’s favor . . . .” (citations omitted)).
Nevertheless, the Supreme Court has not “prescribed any formula or script
19
to be read to a defendant who states that he elects to proceed without counsel.”
Tovar, 541 U.S. at 88. Relatedly, the Court has acknowledged that “[t]he
information a defendant must possess in order to make an intelligent election . . .
will depend on a range of case-specific factors, including the defendant’s
education or sophistication, the complex or easily grasped nature of the charge,
and the stage of the proceeding.” Id.; see Johnson, 304 U.S. at 464 (“The
determination of whether there has been an intelligent waiver of right to counsel
must depend, in each case, upon the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the
accused.”).
Our caselaw embodies the substance of the Supreme Court’s pragmatic
approach. Notably, in Padilla, although we held that “the trial judge should
conduct an inquiry sufficient to establish a defendant’s knowledge and
understanding of the factors articulated in Von Moltke,” we also made clear that
“[n]o precise litany is prescribed” for the court’s knowing-and-intelligent
inquiries. 819 F.2d at 959.
And, relatedly, our cases have repeatedly stressed that the knowing and
intelligent nature of the waiver of the right to counsel turns on the “totality of the
circumstances, including the background, experience, and conduct of the
defendant.” John Williamson, 806 F.2d at 220; see Vann, 776 F.3d at 763 (“We
reflect on the totality of the circumstances to decide whether a defendant has
20
knowingly [and intelligently] decided to proceed pro se.”); Padilla, 819 F.2d at
958 (recognizing that “the question of an intelligent waiver turns not only on the
state of the record [including presumably the court’s inquiry into the Von Moltke
factors in a Faretta hearing], but on all the circumstances of the case, including
the defendant’s age and education, his previous experience with criminal trials,
and representation by counsel before trial” (emphasis added)); Weninger, 624
F.2d at 164 (“To ascertain whether [a defendant] knowingly and intelligently
waived his right to counsel, we must consider ‘the total circumstances of the
individual case including background, experience and the conduct of the accused
person.’” (quoting United States v. Warledo, 557 F.2d 721, 727 (10th Cir.
1977))); see also Turner, 287 F.3d at 983 (endorsing an inquiry into “the
surrounding facts and circumstances” to determine whether a defendant
knowingly and intelligently waived the right to counsel); cf. John Williamson, 806
F.2d at 219 (noting that “[e]ach case must be reviewed individually, with the
objective of determining whether the judge fully inquired into the
circumstances”).
Consistent with the Court’s approach—which eschews formalism in favor
of pragmatism, see Tovar, 541 U.S. at 90; Patterson, 487 U.S. at 298—we have
recognized that, though it is certainly true that “the Faretta hearing is one
way—probably the best way—for the district court to satisfy itself that
defendant’s waiver of a right to counsel was done intelligently,” “a Faretta
21
hearing is only ‘a means to [an] end’ of ensuring a voluntary and intelligent
waiver, and the absence of that means is ‘not error as a matter of law.’” Vann,
776 F.3d at 763 (alteration in original) (quoting United States v. Stanley, 739 F.3d
633, 645 (11th Cir. 2014)).
“In other words, a contemporaneous and comprehensive [Faretta] hearing
is generally a sufficient condition to a knowing waiver, but it is not a necessary
one.” Id. (emphases added); see Turner, 287 F.3d at 983 (noting that although
“[i]t is ‘ideal’ when the trial judge conducts a ‘thorough and comprehensive
formal inquiry’ including topics such as the nature of the charges, the range of
punishment, possible defenses, and a disclosure of risks involved in representing
oneself pro se,” the “failure to conduct this inquiry does not require automatic
reversal” (quoting Willie, 941 F.2d at 1388)). Indeed, “while the hearing itself is
a known quantity, we have recognized that ‘[t]here are certain limited situations
. . . where a waiver may be valid’ even when the inquiry by the court is deficient.”
Vann, 776 F.3d at 763 (alteration and omission in original) (emphasis added)
(quoting United States v. Hughes, 191 F.3d 1317, 1323 (10th Cir. 1999)).
In particular, such may be true when “surrounding facts and circumstances
indicate that the defendant ‘understood his right to counsel and the difficulties of
pro se representation’” at the time of the waiver. Turner, 287 F.3d at 983(quoting Willie, 941 F.2d at 1389); see Vann, 776 F.3d at 763 (discussing our
conclusion to this effect in Hughes, 191 F.3d at 1323, in the context of holding
22
that a Faretta hearing is only “one way . . . for the district court to satisfy itself
that defendant’s waiver of a right to counsel was done intelligently”); McConnell,
749 F.2d at 1451 (noting that, while “[t]he record shows that the trial judge did
not strictly follow the test” consisting of a formal, Von Moltke-based inquiry, “it
would be absurd in this case to believe that [the defendant] did not make a
knowing and intelligent waiver,” in part because the court’s “detailed discussion
of the hazards of proceeding pro se[] [was] by no means a ‘hollow compliance
with the mandate of the Constitution’” (quoting Von Moltke, 332 U.S. at 723));
see also John Williamson, 806 F.2d at 220 (finding “no merit in [the defendant’s]
contention that a valid waiver of counsel requires . . . an explanation of the
possible defenses to the charge,” although this is a factor mentioned in Von
Moltke, and holding that “[t]he totality of the circumstances, including the
background, experience, and conduct of the defendant, show that [the defendant]
knowingly and intelligently waived his right to counsel”); cf. Warledo, 557 F.2d
at 727 (noting in dicta that, although “[u]ndoubtedly the trial court could have
questioned the defendants with more particularity” regarding the Von Moltke
factors, “the sum total” of the particular circumstances in that case “do[] not,
however, constitute a deprivation which would of itself justify a reversal”);
McConnell, 749 F.2d at 1451 n.5 (noting that Von Moltke “appears to be
substantially distinguishable from the present circumstances” in significant part
because there “the trial judge apparently made only a token effort to comply with
23
his constitutional mandate to protect the interests of the defendant”).
3
Mr. Hansen vigorously argues, however, for a different understanding of
our governing law—one that rejects the pragmatic approach to assaying whether a
waiver of a right to counsel was knowing and intelligent. He insists that we
should deem controlling those cases that have “repeatedly h[e]ld that the trial
judge ‘must’ explicitly inquire into all the Von Moltke factors on the record, that
a comprehensive colloquy is ‘essential to a determination that a waiver has been
knowingly and intelligently made,’ and that the absence of a comprehensive
colloquy ‘mandates’ reversal.” Aplt.’s Reply Br. at 9 (emphasis added) (quoting
first Sanchez v. Mondragon, 858 F.2d 1462, 1467 (10th Cir. 1988), partially
abrogated on other grounds by United States v. Allen, 895 F.2d 1577, 1580 n.1
(10th Cir. 1990) (rejecting in an en banc footnote the holding that failure to
secure an adequate waiver of counsel can be harmless error), then quoting United
States v. Gipson, 693 F.2d 109, 112 (10th Cir. 1982), partially abrogated on other
grounds by Allen, 895 F.2d at 1580 n.1, and finally quoting Padilla, 819 F.2d at
959).
In addition to the quoted language from our Sanchez decision, Mr. Hansen
bases his contentions on our decisions in Padilla and Gipson. These two cases
contain some broad language that, at least at first blush, arguably lends support to
Mr. Hansen’s position. See, e.g., Padilla, 819 F.2d at 957 (noting that “the record
24
. . . fail[ed] to demonstrate the district court made the thorough and
comprehensive examination of all the facts and circumstances contemplated by
Von Moltke and its progeny,” and thus “we [could] []not say [the defendant] made
a knowing and intelligent waiver of his right to counsel.”); id. at 959 (“We hold
that the trial judge should conduct an inquiry sufficient to establish a defendant’s
knowledge and understanding of the factors articulated in Von Moltke.”); Gipson,
693 F.2d at 112 (stating that “[t]he trial judge must ensure that the defendant is
aware of all of the factors [i.e., of Von Moltke] . . . essential to a determination
that a waiver has been knowingly and intelligently made” and that “[t]hese factors
must be conveyed to the defendant by the trial judge, and must appear in the
record so that we may perform our review without having to speculate”).
Mr. Hansen asserts that our decisions in Vann and Turner—as well as
Willie, the case upon which these two cases allegedly rest—“are not good law and
should not be followed” because they evince “a classic intra-circuit conflict,” and
“[a]ll of the cases that support Mr. Hansen’s position preceded all of the cases
that support the Government’s position.” Aplt.’s Reply Br. at 8–9 (capitalization
and bold-face font omitted). Under settled intra-circuit conflict rules, see, e.g.,
United States v. Sabillon-Umana, 772 F.3d 1328, 1334 n.1 (10th Cir. 2014), Mr.
Hansen thus contends that we should adhere to the earlier precedent—that is,
published Tenth Circuit cases decided before Willie, Vann, and Turner.
We are not persuaded. The broad language from Padilla, Sanchez, and
25
Gipson that Mr. Hansen necessarily rests his argument on cannot be viewed in
isolation. Indeed, in Padilla itself, although we held that “the trial judge should
conduct an inquiry sufficient to establish a defendant’s knowledge and
understanding of the factors articulated in Von Moltke,” we also evinced a
pragmatic approach in defining the means that a trial judge may use to reasonably
ensure that the defendant possesses such knowledge and understanding of those
factors—specifically, holding that “[n]o precise litany is prescribed” for the
court’s knowing-and-intelligent inquiries. 819 F.2d at 959. Furthermore, we
specifically “recognize[d] the question of an intelligent waiver turns not only on
the state of the record [including presumably the court’s inquiry into the Von
Moltke factors in a Faretta hearing], but on all the circumstances of the case,
including the defendant’s age and education, his previous experience with
criminal trials, and representation by counsel before trial.” Id. at 958 (emphasis
added). That we evinced such a pragmatic approach in Padilla is significant
because, as Sanchez itself instructs, Padilla is a case “where we refined the
appellate standard for reviewing a trial court’s handling of a self-representation
request,” Sanchez, 858 F.2d at 1464. Furthermore, even prior to Padilla, we
intimated in Gipson, notwithstanding its broad language, that the knowing-and-
intelligent assessment was not limited to an examination of the court’s colloquy
with a defendant regarding the Von Moltke factors. See Gipson, 693 F.2d at111–12 (noting that the Von Moltke factors are designed “to ensure that the
26
defendant knows the possible consequences of waiving counsel” but notably
bemoaning the fact that the record provided only “conjectures” regarding factors
not strictly covered by Von Moltke but typically examined under the pragmatic
approach, such as the defendant’s “extensive past experiences with the federal
and state criminal justice systems”).
In the same vein, but more fundamentally, we must endeavor to interpret
our cases in a manner that permits them to coexist harmoniously with overarching
and controlling Supreme Court precedent and with each other. See Carter v.
Bigelow, 787 F.3d 1269, 1280 (10th Cir. 2015) (discerning a “far more reasonable
interpretation” of prior Tenth Circuit precedent than found by the district court
that “harmonizes with existing authority” of the Supreme Court and the Tenth
Circuit); United States v. Capler, 636 F.3d 321, 329 (7th Cir. 2011) (reasoning
that “the decision that controls the outcome of this appeal” “survived” intervening
Supreme Court authority and, more specifically, that the decision’s “analysis is in
harmony with the present-day approach of the Supreme Court”); Kimberly-Clark
Corp. v. Fort Howard Paper Co., 772 F.2d 860, 863 (Fed. Cir. 1985)
(“[S]tatements in opinions of this court must be read harmoniously with prior
precedent, not in isolation.”); see also B RYAN A. G ARNER ET AL ., T HE L AW OF
J UDICIAL P RECEDENT § 36, at 300 (2016) (noting that “decisions of equal
authority” [i.e., from the same court] that appear to be “discordant” “should be
harmonized” “[i]f at all possible” (bold-face font omitted)). And, as explicated
27
above, Supreme Court precedent reflects “a more pragmatic approach to the
waiver question” than Mr. Hansen’s formalistic and rigid reading of our cases
would permit. Patterson, 487 U.S. at 298; accord Tovar, 541 U.S. at 90.
Recall that, under that pragmatic approach, the Court has not “prescribed
any formula or script to be read to a defendant who states that he elects to
proceed without counsel.” Tovar, 541 U.S. at 88. Likewise, the Court has
recognized that “[t]he information a defendant must possess in order to make an
intelligent election . . . will depend on a range of case-specific factors, including
the defendant’s education or sophistication, the complex or easily grasped nature
of the charge, and the stage of the proceeding.” Id. Putting it another way, the
Court has specifically stated that “[t]he determination of whether there has been
an intelligent waiver of right to counsel must depend, in each case, upon the
particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.” Johnson, 304 U.S. at 464.
And, as explicated supra, many of our cases, including Willie, Vann, and Turner,
embody the substance of the Supreme Court’s pragmatic approach.
Given all of this, we are very reluctant to read the controlling rule of our
cases as being—as Mr. Hansen would have it—that a district court is required in
every instance to conduct a comprehensive formal inquiry (i.e., a Faretta hearing)
in which it propounds queries to a defendant regarding each and every Von Moltke
factor in order to avoid reversal of its finding that the defendant’s waiver of the
28
right to counsel was knowing and intelligent at the time it was made. And, in
fact, we need not read the rule of our cases that way. Nor is it necessary for us to
conclude that any of our cases are in irreconcilable conflict with Supreme Court
authority or each other. Properly understood, our cases all can and do coexist
harmoniously.
In this regard, the referenced broad language of Padilla, Sanchez, and
Gipson is quite congruent with the Supreme Court’s authority and the full body of
our own caselaw insofar as that language is read as merely underscoring that
“Faretta requires a showing on the record that the defendant who elects to
conduct his own defense had some sense of the magnitude of the undertaking and
the hazards inherent in self-representation when he made the election”; that the
district court “must bear in mind the strong presumption against waiver”; and that
propounding queries regarding the Von Moltke factors is a uniquely effective
means for assaying whether a defendant’s waiver of the right to counsel is
knowing and intelligent. Padilla, 819 F.2d at 956 (citing Von Moltke, 332 U.S. at
723, and Gipson, 693 F.2d at 111); see Sanchez, 858 F.2d at 1467; Gipson, 693
F.2d at 111–12.
Read as such, these cases do not have the effect of precluding application
of the pragmatic approach to the waiver question—as Supreme Court authority
commands and our caselaw in the aggregate endorses, including our decisions in
Willie, Vann, and Turner. That is because they do not mandate a formalistic and
29
rigid adherence to Von Moltke-related inquiries as the sole means for determining
whether a defendant’s waiver of the right to counsel is knowing and intelligent.
Consequently, they effectively leave space for our recognition that a court may
properly discern the answer to the knowing-and-intelligent question by
propounding a variety of questions tailored to the particular circumstances of the
case, and that these “surrounding facts and circumstances” in certain instances
may well provide the answer to the question of whether “the defendant
‘understood his right to counsel and the difficulties of pro se representation’” at
the time of his waiver. Turner, 287 F.3d at 983 (quoting Willie, 941 F.2d at
1389); see Vann, 776 F.3d at 763.
This point of harmony is well illustrated in Vann. There, we
acknowledged—as Padilla, Sanchez, and Gipson would agree—that a Faretta
hearing that is centered on a colloquy on the record between the court and the
defendant regarding the Von Moltke factors is “probably the best way . . . for the
district court to satisfy itself that defendant’s waiver of a right to counsel was
done intelligently.” Vann, 776 F.3d at 763. But we also recognized that such a
hearing is only one means to ensure that a defendant’s waiver of the right to
counsel is knowing and intelligent and that “the absence of that means is ‘not
error as a matter of law.’” Id. (quoting Stanley, 739 F.3d at 645). Viewed
through the harmonizing lens that we adopt here, the broad language of Padilla,
Sanchez, Gipson does not stand in opposition to the substantive reasoning of
30
cases like Vann.
In sum, we must endeavor to interpret our cases in a manner that permits
them to coexist harmoniously with overarching and controlling Supreme Court
precedent and with each other. And when we do so, we cannot read the
controlling rule of our cases as being—as Mr. Hansen maintains—that a district
court is required in every instance to conduct a Faretta hearing in which it
propounds queries to a defendant regarding each and every Von Moltke factor in
order to avoid reversal. Instead, our cases should be read in the aggregate as
embodying the pragmatic approach outlined above. 4
Moreover, Mr. Hansen’s invocation of the intra-circuit conflict rule is
misguided. To be sure, under that rule, “[i]n cases of conflicting circuit precedent
our court ‘follow[s] earlier, settled precedent over a subsequent deviation
therefrom.’” Sabillon-Umana, 772 F.3d at 1334 n.1 (second alteration in original)
(quoting Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996)). However,
Mr. Hansen’s invocation of this rule rests on dubious premise: that “[a]ll of the
cases that support Mr. Hansen’s position preceded all of the cases that support the
Government’s position.” Aplt.’s Reply Br. at 9. In fact, our decisions in
Weninger and, to a lesser extent, Warledo—which both predated Mr. Hansen’s
4
As we conclude our caselaw mandates this pragmatic approach, we
do not address Mr. Hansen’s policy-based arguments regarding the benefits of a
rule requiring reversal whenever a district court fails to address each and every
Von Moltke factor. See Aplt.’s Reply Br. at 10–14.
31
cited cases (Gipson, Padilla, and Sanchez)—exhibit features of the pragmatic
approach that would later become fully manifested in cases like Vann and Turner.
See Weninger, 624 F.2d at 164 (“To ascertain whether [a defendant] knowingly
and intelligently waived his right to counsel, we must consider ‘the total
circumstances of the individual case including background, experience and the
conduct of the accused person.’” (quoting Warledo, 557 F.2d at 727); Warledo,
557 F.2d at 727 (noting in dicta that, although “[u]ndoubtedly the trial court could
have questioned the defendants with more particularity” regarding the Von Moltke
factors, “the sum total” of the particular circumstances in that case “do[] not,
however, constitute a deprivation which would of itself justify a reversal”).
Furthermore, “[a] court considering discordant decisions must first
determine whether the perceived conflict between them is real.” G ARNER ET AL .,
supra, § 36, at 300 (emphasis added); see Michael Duvall, Resolving Intra-Circuit
Splits in the Federal Courts of Appeal, 3 F ED . C TS . L. R EV . 17, 19 (2009)
(“[I]nconsistency between two panel decisions is not necessarily an intra-circuit
split, however. A third panel will first attempt to reconcile the conflicting cases
before concluding that a true intra-circuit split exists.” (emphasis added)). And,
as our analysis above reveals, even though they might be understood, at first
blush, to be at odds with each other, there is no real conflict between the broad
language of the cases that Mr. Hansen identifies as controlling—Padilla, Sanchez,
and Gipson—and our subsequently issued decisions in Willie, Vann, and Turner,
32
which Mr. Hansen claims “are not good law and should not be followed” because
of the intra-circuit conflict rule. Aplt.’s Reply Br. at 8 (capitalization and bold-
face font omitted). To the contrary, those decisions can and “should be
harmonized,” and our analysis above has precisely that effect. G ARNER ET AL .,
supra, § 36, at 300. Therefore, the intra-circuit conflict rule is inapposite here;
that is because there is no “subsequent deviation” to take into account.
Sabillon-Umana, 772 F.3d at 1334 n.1 (quoting Haynes, 88 F.3d at 900 n.4).
B
With the controlling legal standards clarified, we apply them to the relevant
factual circumstances of this case. We conclude that (1) it is important, in
securing a knowing and intelligent waiver of the right to counsel, for a court to
take reasonable steps to ensure that the defendant understands his obligation to
adhere to federal (i.e., controlling) procedural and evidentiary rules; (2) the
district court here failed to engage in a sufficiently thorough colloquy with Mr.
Hansen that would properly warn him under the circumstances of this case
that—if he proceeded pro se—he would be obliged to adhere to federal procedural
and evidentiary rules; and (3) no case-specific factors are present here that would
permit us to conclude that, despite the district court’s inadequate warnings, it
nevertheless correctly concluded that Mr. Hansen’s waiver of his right to counsel
was knowing and intelligent at the time it was made. In sum, we conclude that
the district court erred in accepting Mr. Hansen’s ostensible waiver of the right to
33
counsel and allowing him to proceed pro se.
1
In evaluating whether the district court erred in finding Mr. Hansen’s
waiver of the right to counsel knowing and intelligent on this record, we first
highlight the importance of a judicial inquiry into a potential pro se defendant’s
understanding of the need to personally adhere to federal procedural and
evidentiary rules. Although not an explicitly enumerated Von Moltke factor, the
topic of a defendant’s willingness to adhere to court rules is an important one. It
is one of the “other facts essential to a broad understanding of the whole matter”
of self-representation. Von Moltke, 332 U.S. at 724; accord Padilla, 819 F.2d at956–57.
Its importance has been highlighted by the Supreme Court’s cases and our
own. For example, in Faretta, the Court noted: “The right of self-representation
is not a license to abuse the dignity of the courtroom. Neither is it a license not
to comply with relevant rules of procedural and substantive law.” 422 U.S. at 834
n.46. And, in concluding that the defendant had “knowingly and intelligently”
waived the right to counsel, the Court noted that he had been warned that he
“would be required to follow all the ‘ground rules’ of trial procedure,” id. at 836.
Cf. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152,
162 (2000) (“[T]he trial judge is under no duty to provide personal instruction on
courtroom procedure or to perform any legal ‘chores’ for the defendant that
34
counsel would normally carry out.” (quoting McKaskle v. Wiggins, 465 U.S. 168,
184 (1984))); Patterson, 487 U.S. at 299–300, 300 n.13 (explaining that, “at trial,
counsel is required to help even the most gifted layman adhere to the rules of
procedure and evidence,” and that it is important for the defendant to be warned
that he will face “the full ‘dangers and disadvantages of self-representation’”
(quoting Faretta, 422 U.S. at 835)).
Likewise, our cases also have looked at whether the defendant made the
waiver with an understanding that he would need to follow the applicable
procedural and evidentiary rules. Compare Padilla, 819 F.2d at 957 (holding
waiver invalid when the defendant “was not cautioned until after trial began that
he would be expected to follow applicable rules of evidence and procedure and
that the judge could not assume the role of advisory counsel for him”), with Brett
Williamson, 859 F.3d at 863 (holding waiver was valid when the district court
warned, inter alia, that “the procedural rules of the courtroom would not be
relaxed for [the defendant’s] benefit”). Moreover, there is decisional law of our
sister circuits that lends support to the idea that “the defendant’s understanding of
the rules of evidence, procedure and courtroom decorum” is “especially important
to the determination of whether a defendant’s decision to proceed pro se is valid.”
United States v. Kimball, 291 F.3d 726, 730 (11th Cir. 2002); cf. United States v.
Ladoucer, 573 F.3d 628, 633–34 (8th Cir. 2009) (noting, in affirming the trial
court’s finding of a knowing and intelligent waiver, that “[t]he court stressed that
35
[the defendant] would be required to follow the rules of procedure, evidence and
decorum and that the court would not be on either attorney’s side”).
Furthermore, we note that the Supreme Court has intimated that the
Benchbook for U.S. District Court Judges provides helpful information regarding
topics that are appropriate and important for trial courts to delve into when
assessing the knowing and intelligent nature of a defendant’s waiver of counsel.
See Patterson, 487 U.S. at 300 n.13. And, though neither the Court nor we
purport to set out a “precise litany” of questions that are necessary, Padilla, 819
F.2d at 959; accord Tovar, 541 U.S. at 88, we would be remiss not to
acknowledge, as some of our sister circuits already have, that the Benchbook
provides valuable guidance of this type. See United States v. Jones, 452 F.3d
223, 229 (3d Cir. 2006) (noting that a “set” of “model questions derived from” the
Benchbook “provide[s] a ‘useful framework’ in deciding whether a defendant
knowingly and voluntarily wishes to proceed pro se” (quoting United States v.
Peppers, 302 F.3d 120, 136 (3d Cir. 2002))); see also United States v. Bankston,
820 F.3d 215, 223 (6th Cir. 2016) (describing the Benchbook as providing a
“model inquiry”); United States v. Bell, 901 F.2d 574, 577 (7th Cir. 1990) (stating
that “[g]uidelines for the appropriate inquiry are set forth” in the Benchbook).
In particular, as relevant here, we note that the Benchbook specifically
provides a line of inquiry reasonably calculated to warn a defendant regarding the
obligation to abide by federal procedural and evidentiary rules. Specifically, the
36
current edition of the Benchbook recommends that, during a Faretta hearing,
district judges specifically ask: “Do you understand that the rules of evidence
govern what evidence may or may not be introduced at trial, that in representing
yourself, you must abide by those very technical rules, and that they will not be
relaxed for your benefit?” F ED . J UDICIAL C TR ., B ENCHBOOK FOR U.S. D ISTRICT
C OURT J UDGES 6 (6th ed. 2013) [hereinafter B ENCHBOOK ]. 5 Likewise, the
Benchbook recommends that district judges ask: “Do you understand that those
rules [i.e., the Federal Rules of Criminal Procedure] govern the way a criminal
action is tried in federal court, that you are bound by those rules, and that they
will not be relaxed for your benefit?” Id. Although we reiterate that neither the
Supreme Court nor our court has “prescribed any formula or script to be read to a
defendant who states that he elects to proceed without counsel,” Tovar, 541 U.S.
at 88, accord Padilla, 819 F.2d at 959, the Benchbook underscores—like the
controlling precedent discussed supra—the importance, in securing a knowing
and intelligent waiver of the right to counsel, of a court conducting a thorough
colloquy with a defendant that is reasonably calculated to ensure that the
defendant understands his obligation to adhere to federal procedural and
evidentiary rules.
5
This document is accessible in PDF form on the Federal Judicial
Center’s website. https://www.fjc.gov/sites/default/files/2014/Benchbook-US
-District-Judges-6TH-FJC-MAR-2013.pdf.
37
2
Having established that it is important for the district court to ensure that
the defendant understands his obligation to adhere to federal procedural and
evidentiary rules, we explain why the district court here failed to engage in a
sufficiently thorough colloquy with Mr. Hansen that would properly warn him
under the circumstances of this case that—if he proceeded pro se—he would be
obliged to adhere to federal procedural and evidentiary rules. In coming to this
conclusion, we examine (a) the Faretta hearing itself, and (b) other
communications between the district court and Mr. Hansen outside of the Faretta-
hearing context that the government argues can inform our understanding of
whether Mr. Hansen’s waiver was knowing and intelligent when it was made.
a
Our primary concern as to whether the district court conducted such a
thorough colloquy with Mr. Hansen arises from our review of the Faretta hearing.
After consideration of the hearing transcript, we conclude that the court did
not—in light of Mr. Hansen’s remarks—adequately warn him that he would be
required to follow federal procedural and evidentiary rules before the court
determined that his waiver was knowing and intelligent.
At the start of the Faretta hearing, after a brief exchange with Mr. Hansen
regarding the indictment, his desire to proceed without counsel, and the
impending trial date, the district court asked the government whether there were
38
other topics that should be covered. 6
In response, the government requested that the court make several further
inquiries about: whether Mr. Hansen was under the influence of any drugs, his
educational background, his knowledge of legal proceedings, whether he
understood the charges and penalties he was facing, whether he understood that
he would be required to abide by the procedural rules of the court, whether he
understood that he would have to take an oath to testify truthfully before
testifying, and whether he understood that he would not be able to challenge the
effectiveness of his representation if he decided to proceed without counsel. The
district court then went on to discuss some, but not all, of these topics with Mr.
6
We pause to underscore that, although counsel for the government
and the defense may properly aid the court in ensuring that it has conducted the
necessary inquiries to provide a foundation for a defendant’s knowing and
intelligent waiver of the right to counsel, the constitutional responsibility to
conceive of and propound the proper inquiries rests squarely on the shoulders of
the trial court and cannot be delegated to others. See Von Moltke, 332 U.S. at 723(“The constitutional right of an accused to be represented by counsel invokes, of
itself, the protection of a trial court, in which the accused—whose life or liberty
is at stake—is without counsel.” (quoting Johnson, 304 U.S. at 465)). Put
another way, the trial court must satisfy its independent obligation to provide
warnings to the defendant on topics important to his waiver of the right to counsel
that are thorough enough that we may conclude that the defendant knowingly and
intelligently waived his right to counsel. See Tovar, 541 U.S. at 88–89 (“[B]efore
a defendant may be allowed to proceed pro se, he must be warned [i.e., by the
district court] specifically of the hazards ahead.”); Brett Williamson, 859 F.3d at
862 (“[B]efore a court may grant a waiver, it must ensure the defendant is ‘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.’”
(emphasis added) (quoting Maynard, 468 F.3d at 676)).
39
Hansen. 7
As relevant here, the court asked Mr. Hansen whether he understood “that
in a legal proceeding there are rules that the court will follow and will require
that all of the parties before the court follow,” and Mr. Hansen responded, “Yes.”
R., Vol. I, at 234 (emphasis added). If this “Yes” had been the only answer
given, we might have been able to conclude the district court’s warning was
sufficient to ensure Mr. Hansen’s understanding of this topic.
But, to its credit, the court asked a similar but more specific version of this
question moments later that, significantly, focused more precisely on Mr.
Hansen’s own obligation to follow federal procedural and evidentiary rules: “You
understand that if you choose to represent yourself you will be required to comply
with the rules of procedure in this court and the rules of evidence. Do you
understand that?” Id. at 237. And, critically, Mr. Hansen answered, “No.” Id.
(emphasis added). In response, the court did try briefly to follow up on this line
of inquiry, stating: “If you do not comply with the rules, you will not—if you do
not commit yourself to being prepared to comply with the rules, you’re not in a
position to represent yourself.” Id. (emphasis added). Mr. Hansen’s reply,
however, went in an entirely different direction; he claimed that he “shouldn’t
even be in this court because [he was] not the defendant” and that “President FDR
7
The court never addressed the last two of these topics requested by
the government but our resolution of this appeal does not turn on these omissions.
40
and [C]ongress concocted a fraud upon the American people where they put a
similar name on top of a living person to pay the debts of a foreign corporation.”
Id. at 237–38.
Tellingly, the government realized that Mr. Hansen’s answers were
problematic. When the court then asked the government whether there were any
other questions that needed to be addressed, the government stated that “the
responses do give the government some pause and concern as to whether it would
be appropriate under these circumstances for Mr. Hansen to represent himself.”
Id. at 239. In particular, the government noted that this was because Mr. Hansen
“specifically said he could not abide by the rules of procedure and evidence.”
Id. at 239–40 (emphasis added). Mr. Hansen interrupted to contest this
characterization. Id. at 240 (“I didn’t say that.”). So, the district court tried once
more by making the following inquiry: “If you represent yourself, will you
endeavor to your best effort to comply with the rules of procedure and the rules of
evidence that a party is required to follow in this court?” Id. at 240. Mr. Hansen
responded by stating that he “can’t represent [him]self because [he is] [him]self.”
Id. The court noted that it had “to make a judgment as to whether or not [he]
[was] willing to comply with the court’s rules,” but Mr. Hansen responded by
stating, “I don’t understand,” and wondering aloud whether the appointment of
counsel would “change anything as far as jurisdiction.” Id. at 241. The
government subsequently noted that it continued to “have some significant
41
concerns as to whether it would be appropriate for the court to permit [Mr.
Hansen] to represent himself,” and the district court recessed to allow Mr. Hansen
to talk with his standby counsel. Id. at 245.
After the recess, and his apparent discussion with standby counsel, Mr.
Hansen apologized for his outbursts and indicated that he did want to represent
himself, with standby counsel. Id. at 246–47. The court then summarily
concluded that Mr. Hansen had knowingly and intelligently waived his right to
counsel. Id. at 247. Critically, however, the court never returned to Mr.
Hansen’s statement that he did not understand that he would be required to follow
federal rules of procedure and evidence.
We conclude that when faced with Mr. Hansen’s at best ambiguous and
unclear responses in the Faretta hearing regarding this topic—which included Mr.
Hansen’s flat denial that he understood he would be obliged to follow federal
procedural and evidentiary rules—the district court was required to do more to
ensure that his waiver of counsel was knowing and intelligent. Based on Mr.
Hansen’s responses, we believe that the court could not make a reasonable
determination regarding whether Mr. Hansen did or did not understand his
obligation to follow the federal rules, and, as the court itself recognized, it needed
to make an informed “judgment” on this subject because Mr. Hansen was “not in
a position to represent [him]self” if he did not have such an understanding. Id. at
237, 241.
42
To be sure, we recognize that the government argues that any concerns
about Mr. Hansen’s “uncertainty about courtroom procedures” are mitigated
because “the district court allowed defendant to consult with standby counsel
[before finally deciding to waive counsel].” Aplee.’s Resp. Br. at 21. But Mr.
Hansen’s meeting with standby counsel was not on the record, and, accordingly,
we have no basis for concluding that standby counsel explained to Mr. Hansen
that, upon waiver of counsel, he would be personally obliged to abide by federal
evidentiary and procedural rules. More importantly, while the “appointment of
standby counsel is preferred” when a defendant has elected to represent himself,
Padilla, 819 F.2d at 959, appointment of standby counsel does not “relieve the
district court of its responsibility to ensure that defendant’s waiver of counsel is
knowingly and intelligently made.” Id. at 960; see Taylor, 113 F.3d at 1144 n.2.
Consequently, while the appointment of standby counsel here was a positive step,
it sheds virtually no light on whether Mr. Hansen’s waiver of the right to counsel
was knowing and intelligent at the time it was made—and, more specifically, on
whether Mr. Hansen understood that, if he proceeded pro se, he would be obliged
to personally adhere to federal procedural and evidentiary rules.
In sum, based on the record of the Faretta hearing, we are unable to
conclude that the district court took sufficient steps to reasonably ensure that Mr.
Hansen understood what he was doing and that his choice to proceed without
counsel was “made with eyes open.” Tovar, 541 U.S. at 88 (quoting Adams, 317
43
U.S. at 279).
b
We now examine other communications between the district court and Mr.
Hansen outside of the Faretta-hearing context to assess whether they demonstrate
that the district court correctly determined that Mr. Hansen’s waiver was knowing
and intelligent—and in particular that Mr. Hansen understood that he would be
required to follow federal procedural and evidentiary rules—at the time he waived
his right to counsel. However, we are constrained to conclude that these
communications do not evince support for the district court’s conclusion that Mr.
Hansen possessed such an understanding.
After the Faretta hearing, Mr. Hansen and the district court had another
oral exchange at a later pretrial hearing about the role that standby counsel would
play. The court explained how standby counsel could assist in making objections
and discussing legal issues with the court. In explaining how the trial would
proceed, the district judge stated: “I want to emphasize that although you have
chosen to present your own defense, you are still required to follow the rules of
procedure and the rules of evidence. [The standby counsel] is here to aid you and
will advise you as appropriate.” R., Vol. II, at 119.
Although this statement directly addressed the topic of adherence to federal
procedural and evidentiary rules, under the circumstances here, we are not
convinced that the district court’s statement demonstrates that Mr. Hansen
44
understood that he was required to follow these rules at the time of his waiver.
This is because the statement was provided in the middle of the court’s extended
pretrial remarks to the parties. See id. at 115–22. And, while the court did ask
the parties certain questions during those remarks, notably, it did not ask for any
response from Mr. Hansen regarding its statement concerning the need to follow
federal rules of procedure and evidence, and Mr. Hansen did not provide a
response.
Without more, we thus do not see how the court’s bare statement at issue
here provides a sufficient basis for us to conclude that the court’s earlier
determination that Mr. Hansen had knowingly and intelligently waived his right
to counsel was correct. The court’s later statement gives us no insight into Mr.
Hansen’s understanding at the time of the waiver that he would be obliged to
personally follow federal procedural and evidentiary rules. See Padilla, 819 F.2d
at 956 (“Faretta requires a showing on the record that the defendant who elects to
conduct his own defense had some sense of the magnitude of the undertaking and
the hazards inherent in self-representation when he made the election.” (emphasis
added)).
The government points, however, to general warnings the district court
gave to Mr. Hansen about the dangers he faced by waiving his right to counsel. 8
8
See, e.g., R., Vol. I, at 231–32 (“I should also advise you that tax
matters can be complicated . . . . [Y]ou are at substantial risk of facing the
45
These general warnings, however, do not serve to dispel our concern about
whether the district court’s communications with Mr. Hansen properly warned
him about one important, specific obligation of self-representation—the
obligation to personally adhere to federal procedural and evidentiary rules. In
particular, the court’s general warnings did not touch on the precise challenges of
navigating the world of trial procedure and evidence without counsel. Cf.
Sanchez, 858 F.2d at 1467 & n.7 (noting that “[t]he trial judge’s general advice
against self-representation and his failure to inquire into [the defendant’s] reasons
for seeking substitute counsel” were inadequate to assess the knowing and
intelligent nature of the waiver and that “[a]dmirable good faith efforts to be fair
to the defendant . . . cannot undo constitutional violations”); B ENCHBOOK , supra,
at 6. Accordingly, we cannot conclude that these general warnings had the effect
of reasonably ensuring that Mr. Hansen’s waiver of the right to counsel was
knowing and intelligent at the time it was made.
Likewise, the government also relies on Mr. Hansen’s multiple statements
that he wanted to represent himself. But a defendant’s willingness to proceed pro
prosecution in this case and you may be convicted by a jury and would be well
advised to have counsel to represent you and guide you through this process.”);
id., Vol. IV, at 205–06 (“I would just say sit back and observe that if you think
about what you’re doing and the consequences this will have upon you and your
family, you may come to a conclusion that these arguments that you’re making
have been repeatedly made and rejected by this court and by the Court of Appeals
and you need to seriously think about the consequences for yourself and your
family in pursuing this course of action.”).
46
se, standing alone, does not allow us to infer that he “knows what he is doing and
his choice is made with eyes open.” Tovar, 541 U.S. at 88 (quoting Adams, 317
U.S. at 279). More specifically, these actions do not help us establish whether or
not Mr. Hansen’s waiver was—at the time it was made—knowing and intelligent
with respect to his obligation to personally adhere to federal procedural and
evidentiary rules.
* * *
In sum, focusing solely on the record of the district court’s pretrial
communications with Mr. Hansen—most notably, at the Faretta hearing—we
cannot conclude under the circumstances here that the district court properly
warned Mr. Hansen of his obligation, as a pro se litigant, to personally abide by
federal procedural and evidentiary rules. Put another way, we cannot conclude
that the court’s warnings had the effect of reasonably ensuring that Mr. Hansen
understood this obligation at the time of his waiver. And the consequence of this
failing is to cast grave doubt on whether Mr. Hansen’s waiver of the right to
counsel was knowing and intelligent. That is because controlling caselaw from
the Supreme Court and our own court—as well as provisions of the
Benchbook—clearly indicate that a defendant’s understanding of this obligation
to personally abide by the court’s procedural and evidentiary rules is one of the
“other facts essential to a broad understanding of the whole matter” of self-
representation. Von Moltke, 332 U.S. at 724; accord Padilla, 819 F.2d at 956–57.
47
However, as noted, “we have recognized that ‘[t]here are certain limited
situations . . . where a waiver may be valid’ even when the inquiry by the court is
deficient.” Vann, 776 F.3d at 763 (alteration and omission in original) (quoting
Hughes, 191 F.3d at 1323)). Therefore, we turn to consider whether there are
case-specific factors present here that would permit us to conclude, despite the
district court’s inadequate warnings, that the district court nevertheless correctly
determined that Mr. Hansen’s waiver of his right to counsel was knowing and
intelligent when it was made. 9 After careful consideration of the record, however,
we discern no such factors.
3
“The information a defendant must possess in order to make an intelligent
election . . . will depend on a range of case-specific factors, including the
9
We focus only on those case-specific factors that logically may be
germane to whether the district court correctly determined that Mr. Hansen’s
waiver was knowing and intelligent at the time it was made, despite the particular
deficiency that we have identified in the court’s warnings concerning Mr.
Hansen’s obligation to adhere to federal procedural and evidentiary rules. In
other words, we ask whether there are case-specific factors that would allow us to
conclude that—despite this specific deficiency—the district court correctly
determined that Mr. Hansen’s waiver of the right to counsel was knowing and
intelligent as to the matter of adherence to these federal rules at the time it was
made. Thus, for example, though Tovar mentions the complexity of the charges
as one potential case-specific factor, see 541 U.S. at 88, we do not deem that
factor particularly germane to whether the district court correctly concluded that
Mr. Hansen understood that he would be required to follow the pertinent
procedural and evidentiary rules at the time of his waiver and, therefore, do not
discuss this factor further.
48
defendant’s education or sophistication . . . .” Tovar, 541 U.S. at 88. In this
regard, we previously have determined that—in light of a defendant’s experience
with the criminal justice system, education, or other like circumstances—even
where the trial court’s warnings regarding self-representation were inadequate,
the court correctly determined that the defendant’s waiver of the right to counsel
was knowing and intelligent at the time it was made. See, e.g., Hughes, 191 F.3d
at 1321, 1324 (noting that the trial “court did not conduct a colloquy regarding
[the defendant’s] waiver of his right to counsel” and, “[a]lthough an on-the-record
colloquy would have been preferable,” the defendant, “a practicing attorney,
made deliberate decisions regarding his representation, decisions which he cannot
now claim resulted in a violation of his right to counsel” (emphasis added));
McConnell, 749 F.2d at 1451 (recognizing that “[t]he record shows that the trial
judge did not strictly follow the test we established . . . for a judge’s
responsibility in questioning a defendant about his waiver of counsel” but holding
that “it would be absurd” to find a waiver unknowing because the defendant, inter
alia, “had attended two and one half years of law school”). Furthermore, we have
effectively recognized that a defendant’s pretrial litigation conduct could
constitute a case-specific factor that would permit a reviewing court to conclude
that the district court correctly determined that the defendant’s waiver was
knowing and intelligent at the time it was made, despite the court’s inadequate
warnings regarding self-representation. See, e.g., Willie, 941 F.2d at 1389.
49
We are constrained to conclude, however, that none of the germane case-
specific factors can convince us that—despite the district court’s inadequate
warnings regarding Mr. Hansen’s obligation to follow federal procedural and
evidentiary rules—the court nevertheless correctly determined that his waiver of
the right to counsel was knowing and intelligent at the time it was made. In
coming to this conclusion, we discuss (a) Mr. Hansen’s experience with the
criminal justice system, sophistication, and education, (b) Mr. Hansen’s pre-trial
conduct, and (c) assuming without deciding that it could be relevant, Mr.
Hansen’s conduct at trial.
a
Focusing first on case-specific factors such as the defendant’s experience
with the criminal justice system, sophistication, and education, these factors cut
against a conclusion that the district court correctly determined that Mr. Hansen’s
waiver of his right to counsel was knowing and intelligent when it was made. Mr.
Hansen had no formal legal training and had no prior experience with criminal
trials, and, moreover, testified at the Faretta hearing that he had never been a
party to a civil lawsuit. See, e.g., Tovar, 541 U.S. at 88; Padilla, 819 F.2d at 958.
While the district court relied on Mr. Hansen’s extensive chiropractic
education in finding his waiver knowing and intelligent, see R., Vol. I, at 233–34
(describing Mr. Hansen’s undergraduate education and chiropractic doctorate);
id., Vol. IV, at 205–06 (“You are obviously a well educated man. You have also
50
been successful in a number of pursuits in your life . . . .”), we do not believe that
Mr. Hansen’s educational attainments provide any meaningful assurance
that—despite his colloquies with the trial court which were at best ambiguous and
unclear—the district court correctly determined that Mr. Hansen understood his
obligation to personally adhere to federal procedural and evidentiary rules at the
time of his waiver. Cf. United States v. Johnson, 534 F.3d 690, 694 (7th Cir.
2008) (noting that the defendant “has a master’s degree in finance and
economics,” but highlighting as particularly relevant to the knowing-and-
intelligent inquiry that he also had “an extensive history of arrests and
convictions over the last forty years”). There is no indication from the record or
the parties’ arguments that Mr. Hansen’s education offered him any meaningful
insight into the rigors of a criminal trial, generally, and, more specifically, into
the potential procedural and evidentiary hurdles that defendants face in such a
setting in responding to the prosecution’s case.
Accordingly, we cannot conclude that case-specific factors such as the
defendant’s experience with the criminal justice system, sophistication, and
education support a conclusion that the district court correctly determined that
Mr. Hansen’s waiver of the right to counsel was knowing and intelligent at the
time it was made.
b
We reach a similar conclusion regarding Mr. Hansen’s pretrial litigation
51
conduct, which we explore in some detail. Contrary to the government’s
assertion, it does not “further indicate[] a knowing waiver of counsel.” Aplee.’s
Resp. Br. at 25–26. Indeed, much of Mr. Hansen’s pretrial litigation conduct
provides further reason to doubt the district court’s determination that his waiver
was knowing and intelligent at the time it was made. In coming to this
conclusion, we discuss our decision in Willie, Mr. Hansen’s many pretrial filings,
and his conduct at several pretrial hearings.
In Willie, the defendant “submitted at least ten pretrial pro se petitions to
the court, including amended pleadings, a motion to deny the government’s
request for reciprocal discovery, a Petition in Abatement, two Motions to
Dismiss, and two sets of jury instructions.” 941 F.2d at 1389. At a later pretrial
hearing, “the court allowed [the defendant] to represent himself, having
apparently satisfied itself after observing [the defendant]’s conduct and reviewing
his numerous petitions throughout the preceding months that [the defendant]
understood the difficulties of pro se representation and still insisted on
representing himself.” Id.On appeal, the defendant argued the “he did not make a knowing, voluntary
and intelligent waiver of his right to counsel because he was inadequately
informed of the hazards of self-representation.” Id. at 1388. We acknowledged
that, “[r]egrettably,” the trial court did not “fully discuss these issues with [the
defendant] on the record.” Id. at 1388–89. However, relying on the defendant’s
52
numerous pro se motions, his repeated assertions of his right to self-
representation, and his refusal to work with appointed counsel, we concluded that
“the facts on the record are sufficient in this case to establish that [the defendant]
intelligently, knowingly and voluntarily waived his right to counsel,” despite the
absence of adequate warnings by the district court regarding self-representation.
Id. at 1390–91.
As Willie illustrates, we have recognized that pretrial litigation conduct can
be relevant to our analysis of whether a district court correctly determined that a
waiver was knowing and intelligent at the time it was made. But Mr. Hansen’s
pretrial litigation conduct is meaningfully distinguishable from that of the Willie
defendant and does not lead us to the same or a similar conclusion to the one that
we reached there. In other words, it does not lead us to conclude that the district
court correctly determined that Mr. Hansen knowingly and intelligently waived
his right to counsel.
Even before his initial appearance, Mr. Hansen submitted a wide range of
filings that suggest that he failed to understand he would be required to abide by
federal procedural and evidentiary rules. His first filing was labeled “Reschedule
Court Date” and informed the court that he would “not be available to attend the
court date scheduled for November 17, 2016”—though he had received a
summons from the court to do so—and went on to “propose a new court date be
scheduled for December 18, or thereafter.” R., Vol. I, at 31 (Reschedule Ct. Date,
53
filed Nov. 3, 2016). But, as the government’s responsive pleading pointed out,
this “notice” did not comply with federal procedural rules in that it neither moved
for a continuance nor “state[d] the grounds on which it is based.” Id. at 34
(United States’ Opp’n to Def.’s Pleading, filed Nov. 4, 2016) (quoting F ED . R.
C RIM . P. 47(b)). And, more fundamentally, the summons Mr. Hansen received
was no mere invitation; rather, under the federal rules, a summons “require[s] the
defendant to appear before a magistrate judge at a stated time and place.” F ED . R.
C RIM . P. 4(b)(2) (emphasis added); 1 C HARLES A LAN W RIGHT ET AL ., F EDERAL
P RACTICE & P ROCEDURE § 51 (4th ed.), Westlaw (database updated Apr. 2019)
(“A summons is an order by a judge addressed to the defendant, directing him or
her to appear in court at a specified time and date to answer the specified
charges.” (emphasis added) (footnote omitted)). The mandatory significance of
the summons, however, seems to have been lost on Mr. Hansen.
As the case progressed, Mr. Hansen continued to file documents that do not
support the notion that he understood he would be personally obliged to adhere to
federal procedural and evidentiary rules. The district court construed the above
rescheduling request as a motion to continue and denied it. Mr. Hansen
responded by writing “I reject your offer to contract” diagonally by hand across
the front of the order and returning the order to the court. R., Vol. I, at 41
(Filing, Nov. 14, 2016).
Similarly, Mr. Hansen later submitted a copy of the indictment, upon which
54
he again directed a communication to the court in diagonal handwriting, stating
“Accepted for Value by Grantee, Returned for Value by Grantor-Settlor, On
Special Deposit Without Recourse, IT IS ORDERED: Discharge All Obligations /
Presentments / Bonds / Fees / Taxes / Tithes to Extinguish the Debt and Settle the
Account of DELYNN HANSEN.” Id. at 170 (Filing, Nov. 17, 2016). In addition
to violating local rules on formatting through these submissions, see D. U TAH
C RIM . R. 57-1; D. U TAH C IV . R. 10-1(a) (“Text must be typewritten or plainly
printed and double-spaced except for quoted material and footnotes.” (emphasis
added)), these filings again failed to “state the grounds on which [they were]
based and the relief or order sought,” F ED . R. C RIM . P. 47(b). Similarly, among
other filings of Mr. Hansen was one that was signed in part with a thumbprint and
contained a declaration purporting to excuse the district court judge from
presiding under “his emergency war powers jurisdictional duties.” R., Vol. I, at
46.
Such filings by Mr. Hansen certainly do not support the notion that—in
spite of the district court’s inadequate warnings—the district court correctly
determined that he understood his obligation to personally adhere to federal
procedural and evidentiary rules at the time of his waiver.
Put another way, unlike Willie, Mr. Hansen’s pretrial conduct—as
evidenced by his written filings—does not support a finding that Mr. Hansen
“understood the difficulties of pro se representation,” specifically, the need to
55
follow at trial the controlling (i.e., federal) procedural and evidentiary rules. 941
F.2d at 1389; see also Taylor, 113 F.3d at 1142 (distinguishing Willie’s reliance
on the defendant’s pretrial conduct because the Taylor defendant’s pretrial motion
practice was less extensive). Indeed, the overwhelming majority of Mr. Hansen’s
filings affirmatively suggest his failure at the time of his waiver to understand his
need to adhere to these rules.
In addition to his written filings, Mr. Hansen participated in several pretrial
hearings. Conduct in such hearings could conceivably inform a reviewing court’s
conclusion regarding whether the district court correctly determined that a
defendant’s waiver was knowing and intelligent at the time it was made. See
Willie, 941 F.2d at 1389. However, Mr. Hansen’s conduct at these hearings sheds
no meaningful light on the knowing-and-intelligent inquiry, much less provides a
reasonable basis for concluding that the district court correctly determined that he
understood his obligation to abide by federal procedural and evidentiary rules at
the time of his waiver. Therefore, his conduct in those hearings does not warrant
further discussion.
In sum, although a defendant’s pretrial litigation conduct could constitute a
case-specific factor that, in limited circumstances, could justify—despite a trial
court’s inadequate warnings regarding self-representation—a conclusion that the
district court nevertheless correctly determined that a defendant’s waiver was
knowing and intelligent at the time it was made, Mr. Hansen’s pretrial litigation
56
conduct will not support such a conclusion here.
c
Lastly, we acknowledge that the government asks us to consider one other
case-specific factor that it believes could militate in favor of a determination that
Mr. Hansen’s waiver of his right to counsel was knowing and intelligent when it
was made: that is, Mr. Hansen’s conduct at trial. See Aplee.’s Resp. Br. at 27
(“Although a valid waiver of counsel must take place before trial, this Court may
look to events at trial as corroboration of a valid waiver.”). Whether a
defendant’s trial conduct is material to an inquiry into the correctness of a district
court’s conclusion that a defendant’s pretrial waiver of his right to counsel was
knowing and intelligent at the time it was made is a matter of first impression in
this circuit. We assume without deciding that such conduct is material to this
inquiry. However, we conclude that Mr. Hansen’s trial conduct provides no basis
for us to conclude that the district court correctly determined that Mr. Hansen’s
waiver was knowingly and intelligently made.
To start, contrary to the government’s contentions, we clarify that this
question is one of first impression. Indeed, to the extent that our binding cases
have communicated regarding the subject, it has been through mixed signals and
dicta. For example, in Padilla, we hinted that happenings at trial are not relevant
to whether a district court correctly determined that a waiver was knowing and
intelligent at the time it was made. In particular, we suggested concern regarding
57
the fact that the defendant in that case “was not cautioned until after trial began
that he would be expected to follow applicable rules of evidence and procedure.”
819 F.2d at 957 (emphasis added). We made this comment in coming to the
conclusion that “consideration of all the available facts and circumstances of this
case does not compel the conclusion that defendant made a knowing and
intelligent waiver of representation by counsel.” Id. at 958. We do not read this
comment, however, as holding that a court may not consider trial occurrences in
evaluating whether a waiver of the right to counsel was knowing and intelligent
when made.
To support its position, the government cites one binding decision of our
court—Turner—but we do not believe that case definitively resolves the question
before us. There, in holding that a defendant’s waiver of the right to counsel was
knowing and intelligent, we did note that the defendant, inter alia, “gave opening
and closing statements, objected to the Government’s evidence, called his own
expert witness, and successfully argued to remain free pending sentencing.” 287
F.3d at 984. However, Turner’s analysis did not rely on the defendant’s trial
conduct as a case-specific factor tending to demonstrate that the defendant’s
waiver of the right to counsel was knowing and intelligent at the time it was
made—even though the trial court’s warnings regarding the hazards of self-
representation were deficient. To the contrary, we ultimately grounded our
decision on the fact that the district court had properly performed its duty in
58
providing the defendant “with enough information to make an informed, knowing,
and thus legally intelligent decision whether to waive his right to counsel.” Id.Because the district court had “provided [the defendant] with enough
information,” id., the defendant’s subsequent conduct could not have had a
meaningful role to play in the court’s analysis. In other words, Turner’s
reference to such trial conduct was at most descriptive dictum. Accordingly, we
do not interpret Turner as having decided whether a defendant’s performance at
trial is material to the inquiry into whether the defendant knowingly and
intelligently waived before trial the right to counsel.
Thus, in sum, to the extent that our binding cases have communicated
regarding this subject, it has been through mixed signals and dicta. The
government also cites, however, an unpublished decision from our court, United
States v. Sealander, 91 F.3d 160, 1996 WL 408368 (10th Cir. 1996) (unpublished
table decision), in support of its position. In that case, the panel concluded that
“[t]he questioning of [the defendant] by the district court, the advise [sic] it gave
him, the availability of standby counsel, his prior experience with the criminal
justice system, the pleadings he filed in this case, and his performance at trial
support[ed] [the] conclusion that [the defendant] made a knowing, intelligent, and
voluntary waiver of his Sixth Amendment right to counsel.” Id. at *13 (emphasis
added). It goes without saying that, as an unpublished decision, Sealander is not
binding on us. And we do not read Sealander’s brief reference to performance in
59
trial as definitively opining on this question. Accordingly, we decline to rely on
that decision.
Therefore, it is a question of first impression in this circuit whether a
defendant’s trial conduct is material to the inquiry into whether a district court
correctly concluded that a defendant’s pretrial waiver of his right to counsel was
knowing and intelligent at the time it was made. 10 However, we need not and thus
do not decide this open question here. See People for Ethical Treatment of Prop.
Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 1008 (10th Cir. 2017) (“[I]f
it is not necessary to decide more, it is necessary not to decide more.” (alteration
in original) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)
(Roberts, J., concurring in part and concurring in the judgment))), cert. denied,
10
We do note, however, that at least one circuit has concluded that
such conduct is categorically immaterial. See United States v. Mohawk, 20 F.3d
1480, 1485 (9th Cir. 1994) (“That [the defendant] handled his defense more or
less capably . . . is, under our precedents, irrelevant. ‘The manner in which a
defendant conducts his defense cannot establish his state of mind at the time he
opted for self-representation.’” (quoting United States v. Aponte, 591 F.2d 1247,
1250 (9th Cir. 1978))); see also Dallio v. Spitzer, 343 F.3d 553, 568 (2d Cir.
2003) (Katzmann, J., concurring in the judgment) (“Nor is the fact that [the
defendant] ultimately performed competently in conducting his defense
necessarily material to determine the validity of a Sixth Amendment waiver under
Faretta.”); United States v. Balough, 820 F.2d 1485, 1489 (9th Cir. 1987) (“The
government also argues that [the defendant] represented himself well . . . . Even
if true, this is irrelevant to show that [the defendant] understood the dangers and
disadvantages of self-representation at the time he sought to waive his right to
counsel.”); cf. Godinez v. Moran, 509 U.S. 389, 399 (1993) (noting that “the
competence that is required of a defendant seeking to waive his right to counsel is
the competence to waive the right, not the competence to represent himself”).
60
138 S. Ct. 649 (2018). Even if we assume that such trial conduct could be
material, the government’s argument fails here because Mr. Hansen’s conduct at
trial does not favor a determination that his waiver of his right to counsel was
knowing and intelligent when it was made.
In support of its argument to the contrary, the government argues that Mr.
Hansen “controlled the presentation of his defense,” “cross-examined government
witnesses,” “called his own witnesses,” “introduced exhibits in support of his
defense,” and pursued a legally sound if ultimately unsuccessful good-faith
defense. Aplee.’s Resp. Br. at 28. But we do not see how—and the government
does not explain how—Mr. Hansen’s control of his own defense and purported
pursuit of a potentially valid defense could tell us anything here about whether
the district court correctly determined that, at the time of his waiver of the right
to counsel, Mr. Hansen understood that he would be personally required to follow
federal procedural and evidentiary rules, viz., about whether the court correctly
determined that Mr. Hansen’s waiver was knowing and intelligent.
While we assume that a defendant’s cross-examination, calling of
witnesses, and proper introduction of exhibits could tend to show that the
defendant waived the right to counsel with the understanding that he or she would
be required to follow federal procedural and evidentiary rules, the record here
does not demonstrate such knowledge. In particular, the record reveals that Mr.
Hansen’s cross-examination repeatedly strayed into irrelevant and legally
61
inappropriate topics, demonstrating no understanding that he would be required to
follow federal evidentiary rules. See, e.g., R., Vol. II, at 244 (Mr. Hansen: “This
is Black’s Law talking about the definition of a closed account.” The
government: “We have discussed the use of the law as evidence, Your Honor.”
The Court: “Yeah, this would not be an appropriate question to ask of this
witness.”); id. at 326 (Mr. Hansen: “[D]o you know what the Uniform
Commercial Code is?”); see also id. at 191 (Mr. Hansen: “Does the IRS hire
psychics?”).
And while Mr. Hansen called three witnesses, he sought to introduce
similarly impermissible testimony through them. See, e.g., id. at 458 (The Court:
“Let me make it clear, you are not to testify as to what the law is or your
understanding of the law, simply what was said at this seminar.” The Witness:
“But Your Honor, it wasn’t -- it is on -- it’s on the Federal Reserve website, it’s
not law.” The Court: “Again listen --” The Witness: “It is just there for everyone
to see.” Mr. Hansen: “Can’t she relate to what she had read.” The Court: “No.
No, she cannot relate to what she has read because the relevance of this is merely
what was said at the seminar so that they can judge what your state of mind was.”
Mr. Hansen: “Fine.”). Again, it is difficult to see how this supports a conclusion
that Mr. Hansen understood that he would be required to follow federal
evidentiary rules. Furthermore, while Mr. Hansen did introduce certain exhibits,
he struggled to do so, arguably suggesting that he did not understand—when he
62
elected to waive the right to counsel—that he would be personally required to
comply with the Federal Rules of Evidence. See, e.g., id. at 241 (Mr. Hansen:
“Can you -- can you read what it says?” The Court: “This is not yet received in
evidence.” Mr. Hansen: “Okay.” The Court: “You can’t read it to the jury yet.”
Mr. Hansen: “Okay. They can read it themselves then.”).
Thus, after reviewing Mr. Hansen’s trial conduct, we conclude that—even
assuming that we may consider trial conduct as evidence of Mr. Hansen’s
understanding at the time of his waiver—his trial conduct does not demonstrate
that the district court correctly determined that Mr. Hansen’s waiver was knowing
and intelligent at the time it was made—in particular, with respect to the
obligation to personally adhere to federal procedural and evidentiary rules.
* * *
We thus hold that none of the germane case-specific factors convince us
that—despite the district court’s inadequate warnings regarding Mr. Hansen’s
obligation to follow federal procedural and evidentiary rules—the court
nevertheless correctly determined that Mr. Hansen’s waiver of the right to counsel
was knowing and intelligent when it was made.
C
In sum, we conclude that the district court did not adequately “ensure [Mr.
Hansen] [was] ‘aware of the dangers and disadvantages of self-representation.’”
Brett Williamson, 859 F.3d at 862 (quoting Maynard, 468 F.3d at 676). While we
63
do not “prescribe[] any formula or script,” Tovar, 541 U.S. at 88, that a district
court must follow in warning defendants regarding the hazards of self-
representation, our fundamental concern is that the district court here failed to
ensure that Mr. Hansen understood that, if he waived his right to counsel, he
would have to personally follow federal procedural and evidentiary rules.
Although not an explicitly enumerated Von Moltke factor, the topic of a
defendant’s willingness to adhere to court rules is an important one. It is one of
the “other facts essential to a broad understanding of the whole matter” of self-
representation. Von Moltke, 332 U.S. at 724; accord Padilla, 819 F.2d at 956–57.
Notably, we determine that when faced with Mr. Hansen’s at best
ambiguous and unclear responses in the Faretta hearing regarding this
topic—which included Mr. Hansen’s blunt denial that he understood he would be
obliged to follow federal procedural and evidentiary rules—the district court was
required to do more to ensure that his waiver of counsel was knowing and
intelligent. Based on Mr. Hansen’s responses, we believe that the court could not
make a reasonable determination regarding whether Mr. Hansen did or did not
understand his obligation to follow the federal rules at the time of the waiver.
Furthermore, we have assessed other communications between the district
court and Mr. Hansen outside of the Faretta-hearing context to determine whether
they demonstrate that—despite the district court’s inadequate warnings—the court
nevertheless was correct in determining that Mr. Hansen’s waiver of the right to
64
counsel was knowing and intelligent at the time it was made, particularly with
respect to the obligation to abide by federal procedural and evidentiary rules. But
we conclude that these communications do not demonstrate this. Lastly, we
recognized that, under limited circumstances, certain case-specific factors could
permit us to conclude that, despite the district court’s inadequate warnings, the
district court nevertheless correctly determined that Mr. Hansen’s waiver of his
right to counsel was knowing and intelligent when it was made. But, after careful
consideration of the record, we discern no such case-specific factors. Thus, we
must conclude that the district court erred in finding that Mr. Hansen knowingly
and intelligently waived his right to counsel.
III
Based on the foregoing, we REVERSE the district court’s waiver
determination and REMAND the case, instructing the court to VACATE its
judgment regarding Mr. Hansen in full and to conduct further proceedings
consistent with this opinion. 11
11
In light of our disposition of this case, we need not decide a separate
issue raised by Mr. Hansen: whether the district court erred in imposing two
special conditions of supervised release.
65