USCA11 Case: 20-13166 Date Filed: 08/17/2022 Page: 1 of 32
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13166
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL ERIC COBBLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:14-cr-00077-CDL-CHW-1
____________________
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2 Opinion of the Court 20-13166
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Daniel Cobble appeals his convictions for three counts of
mailing threatening communications, in violation of
18 U.S.C.
§ 876(c). He argues that the district court erred when it permitted
him to waive his right to counsel and represent himself.
I.
In a superseding indictment, a grand jury charged Cobble
with three counts of mailing threatening communications, in vio-
lation of
18 U.S.C. § 876(c). The indictment stated that he had
“knowingly cause[d] to be delivered by the Postal Service” com-
munications threatening to injure and kill two United States Dis-
trict Court Judges.
In January 2016, Cobble’s appointed counsel filed an unop-
posed motion to continue, requesting that the district court direct
that a psychiatric and/or psychological evaluation be conducted
upon Cobble and to hold a hearing to determine whether he was
competent at the time alleged in the indictment and whether he
was currently competent to aid counsel in his defense. Although
Cobble had appointed counsel, he submitted numerous pro se fil-
ings, including a “Declaration of War.” The district court granted
Cobble’s counsel’s motion to continue, finding that it was in the
interests of justice to allow the evaluation of Cobble.
In July 2016, the district court received a psychological eval-
uation of Cobble from Dr. Gregory Prichard. Dr. Pritchard’s
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20-13166 Opinion of the Court 3
diagnostic impressions of Cobble included paranoid personality
disorder and delusional disorder, persecutory type. He noted that
Cobble appeared to understand what his charges were factually but
that his rational appreciation was significantly impaired. He found
that Cobble’s mental infirmity was “psychotic in nature” and that
Cobble was “clearly and grossly” incompetent to proceed. He also
found that it would be “difficult to restore” Cobble but that medi-
cations could lessen his delusional misperceptions and potentially
restore his competency.
The district court held a competency hearing on August 11,
2016. After Cobble interrupted the proceedings and threatened
those present, the district court issued a warning that he would be
removed if he did so again. Cobble did not comply and so the court
had him removed. The district court resumed the hearing.
Government witness Dr. Tennille Warren-Phillips testified
Cobble was competent to stand trial. In her interactions with Cob-
ble, he had been more cooperative than he was being in the court-
room, and she never had to end a session with him prematurely
because of unruly behavior. During the course of her evaluation,
Cobble was required to fill out certain paperwork, and some re-
ferred to his pursuit of sovereign citizenship. She had diagnosed
Cobble with antisocial personality disorder and a provisional diag-
nosis of narcissistic personality disorder. In her opinion, Cobble
had the ability to assist his counsel in the preparation of his defense
if he chose to because he was able to scrutinize the sources of evi-
dence against him, give an opinion on the evidence, and examine
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4 Opinion of the Court 20-13166
the nature of the charges. Cobble told her that she could help him
by recommending that he be found incompetent because he be-
lieved his charges would be dropped if he were found incompetent
and not restored to competence.
Dr. Warren-Phillips further testified if Cobble wanted to be
more cooperative and compliant, he could. He had the ability to
make a choice in his behavior and actions and control his actions.
He would be able to understand the nature and consequences of
the proceedings against him and assist his attorney in his own de-
fense. Cobble was uncooperative when she asked him questions
and refused to take psychological examinations that she offered.
Next, Cobble called Dr. Prichard, who testified he tried to
interview Cobble, but Cobble structured and guided the bulk of the
evaluation. He believed that Cobble had a baseline paranoid per-
sonality disorder and a mental illness, which was the “delusional
disorder persecutory type.” A delusional person could not choose
to participate in courtroom proceedings because it was not possible
to separate the person from the delusion. A person could be delu-
sional and be able to read and recite a statute, and Cobble was not
always delusional in everything he did. His delusion prevented
him from participating because it rendered him unable to partici-
pate in a reasonable and rational way. Dr. Prichard further testified
Cobble had factual insight but not rational appreciation. He be-
lieved that Cobble did have some understanding of the nature of
the process and the consequences of where that process could lead.
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20-13166 Opinion of the Court 5
In September 2016, Dr. Richard Adler submitted a forensic
psychiatric evaluation of Cobble. explained that he had analyzed
psychological reports and interpreted a quantitative electroenceph-
alogram (“QEEG”) that was performed on Cobble but he had not
personally examined Cobble. He found that Cobble’s QEEG was
“clearly abnormal” and that the QEEG results and Cobble’s prior
medical history contradicted a conclusion that he was of sound
mind. He concluded that, should the district court agree that Cob-
ble had a delusional disorder, treatment with antipsychotics could
be effective in restoring his competency.
In December 2016, the parties filed a joint motion request-
ing additional psychiatric and/or psychological evaluation of Cob-
ble and a hearing to determine whether he was competent to aid
counsel in his defense. The government, in particular, requested
additional examination based on Dr. Adler’s examination. The dis-
trict court granted the joint motion.
In February 2017, the parties filed a joint motion submitting
that a preponderance of the evidence supported the conclusion that
Cobble was suffering from a mental disease or defect that rendered
him incompetent to understand the nature and consequences of
the proceedings and/or to assist properly in his defense. The dis-
trict court granted the parties’ joint motion and found Cobble in-
competent to proceed. It ordered that Cobble be hospitalized for
no more than four months to determine whether there was a
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6 Opinion of the Court 20-13166
substantial probability that he would attain the competency re-
quired in the foreseeable future. 1
In February 2018, and after Cobble’s extended stay at the
Federal Medical Center in Butner, North Carolina, Dr. Tracy Pen-
nuto submitted a forensic evaluation that found Cobble was com-
petent to return to trial if he so chose. She included a certificate of
restoration of competency to stand trial certifying that Cobble was
able to understand the nature and consequences of the proceedings
against him and to assist properly in his own defense. She stated
that Cobble had been evaluated through a clinical interview and
behavioral observation but had refused a physical examination.
She noted that Dr. James Stark and Dr. Prichard had opined that
Cobble was not competent but that Dr. Kevin Richards and Dr.
Warren-Phillips had opined that he was competent to proceed. She
also noted that Dr. Adler had not personally examined Cobble and
had relied on a QEEG analysis, which was not widely accepted by
the scientific community or in courts. She stated that, based on
conversations with Cobble, she thought he demonstrated “an ex-
cellent overall knowledge of competency related areas.”
1 Cobble, proceeding pro se, appealed the district court’s ruling. In Feb-
ruary 2018, a panel of this Court affirmed the district court’s finding that Cob-
ble was incompetent after reviewing for clear error and finding that the record
supported the court’s finding that Cobble was mentally incompetent to pro-
ceed.
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20-13166 Opinion of the Court 7
In her evaluation, Dr. Pennuto further stated that Cobble
had shown that he could “think critically, problem solve, and
strategize when it comes to his defense” and could recite law from
memory. She also found that he could understand the pleas he
could enter into and what each meant and appeared to understand
courtroom vocabulary and vernacular. She found that he had the
capacity to disclose pertinent information to counsel and to testify
and could work with his attorney if he chose to do so. On the basis
of her impressions, she found that his mental health diagnoses were
antisocial personality disorder and narcissistic personality disorder
traits. She concluded that, based on the available data, Cobble did
not appear to have a significant mental disease or defect that would
interfere with his competency to proceed.
In July 2018, the district court held another competency
hearing for Cobble. The district court noted that it had received
Dr. Pennuto’s report indicating that Cobble had “recovered his
competency” and was sufficiently competent to proceed to trial.
The government called Dr. Pennuto, who testified that she agreed
with Dr. Warren-Phillips’s forensic evaluation of Cobble. She
opined that Cobble was competent and did not have a mental dis-
ease or defect that rendered him unable to participate in the pro-
ceedings. Even though Cobble would not cooperate for formal
testing, she was able to assess him through interactions with him
and through behavioral observations. In doing so, she assessed that
his memory was “quite good,” noting that he could cite statutes
from memory. She noted that his writing was sometimes difficult
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8 Opinion of the Court 20-13166
to follow but that, verbally, he could understand questions being
asked and respond appropriately when he chose to. She saw no
evidence that he had any receptive or expressive language difficul-
ties. Through her daily interactions with Cobble over six months,
she also assessed aspects of his executive functioning. She noted
that he could “absolutely track information, make connections,
show that he could strategize” and read statutes, caselaw, and doc-
uments related to his case and come up with strategies for his own
defense, even if they were not the best strategies. In Dr. Pennuto’s
assessment, Cobble was mentally and psychologically the same as
he was during the prior report. She disagreed with the previous
legal determination that Cobble was incompetent, based on her re-
view of the previous competency hearing and testimony given at
that hearing.
Dr. Pennuto further testified that it was possible that Cobble
suffered from “some mild neurocognitive disorder.” Even assum-
ing a modest decline in Cobble’s cognitive abilities from a prior
level, Dr. Pennuto believed that, based on her interactions with
him, he was “fully capable” of understanding the nature and con-
sequences of the legal proceedings and could properly assist in his
defense at trial. In her opinion, if the QEEG analysis was the only
piece of data used, it would be beyond the professional standard of
care in neuropsychology because it had not been widely accepted
as a reliable diagnostic tool.
On cross-examination, Dr. Pennuto testified Cobble had an
antisocial personality disorder but was not delusional in any way.
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20-13166 Opinion of the Court 9
She believed Cobble’s mental state may have declined from his
childhood functioning but not from his previous evaluation. Cob-
ble’s antisocial personality disorder did not impact his ability to un-
derstand the nature and consequences of the charges against him.
It could make him more difficult to interact with, but he could be-
have and interact appropriately when he chose to do so. She would
have expected to discover whether Cobble had a delusional disor-
der in her interactions with him and did not discover such a disor-
der. Her interactions with Cobble had been frequent and occurred
over a long period of time. She believed he was misguided in the
way that he interpreted some legal statutes, caselaw, and other le-
gal matters, and they often discussed what she believed were mis-
interpretations of the law, although he often disagreed with her.
Her inability to conduct diagnostic tests did not impact her assess-
ment of his daily functioning, competency, or whether he had de-
lusional thinking.
Next, Cobble’s counsel, over an interjection by Cobble,
called Dr. Prichard, who testified he had attempted to evaluate
Cobble, who had refused to be evaluated. His primary diagnosis
for Cobble was a paranoid personality disorder, which he thought
was the baseline. Based on the interactions he had had with Cobble
and the documents he reviewed, Cobble demonstrated delusion in
the form of a fixed false belief. He explained that Cobble had fixed
false beliefs about his prior cases and the court system. Dr. Prich-
ard testified that Cobble had gone over the line of a personality dis-
order to delusion when it became impossible to get him to view
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10 Opinion of the Court 20-13166
the case in a rational and reasonable way and understand why he
could not pursue it in the manner he was proposing. He described
that Cobble’s view was “entirely fixed” and “very irrational,” such
as Cobble’s view that he could threaten people, including judges,
and that it was a rational solution to his position. That view
demonstrated how “out of touch with reality” Cobble was.
Dr. Prichard continued that it would not be possible to
change Cobble’s mind that he could legally make threats because
he was delusional. Based on his experience dealing with individu-
als with difficult personalities and personality disorders for 22
years, he decided Cobble was delusional and not merely difficult.
Dr. Prichard testified that, in his experience, individuals with diffi-
cult personality disorders would adjust their thinking to some de-
gree at some point. Most individuals that he dealt with who con-
sidered themselves sovereign citizens were not delusional. Sover-
eign citizenship orientation was an extreme political position and
not a fixed false belief. In his opinion, threatening multiple federal
judges and family members and threatening to kill individuals in a
very graphic way was an irrational way of dealing with his circum-
stances.
Dr. Prichard further testified his opinion as to Cobble’s com-
petence was the same as it was in his previous report, and he did
not think that anything had changed. He did not think Cobble was
capable of understanding the difference between his representing
himself and being represented by an attorney and the advantages
and disadvantages. He thought that Cobble could possibly be
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20-13166 Opinion of the Court 11
restored to competency with medication. Given that Cobble had
refused to take medication, his condition was unlikely to change in
the foreseeable future unless he was forcefully given those medica-
tions.
In response to the district court’s questioning, Cobble testi-
fied that he believed he was competent to proceed to trial but was
not competent at the time of the crime. He told the district judge:
“My belief is that I was always competent. My legal argument is
that I’m not.” He understood that the charges against him were
that he caused threatening communications to be made. He un-
derstood that the government had to prove he committed that con-
duct to convict him. He agreed with what the law said but said
that “reality” said something different. Contrary to what this Court
said, he never appealed his incompetency ruling because his mail
was tampered with. He had been through 5 different jury trials and
understood that most juries included 12 individuals. He under-
stood that he was in prison serving a state sentence because of two
different jury trials. He understood how a jury trial worked, but
his attorneys never did what he asked them to do.
When the district court asked whether he understood that
he would have the right to call and question witnesses at trial, he
answered, “I don’t understand that” and said that he “was supposed
to have that” right in his last trials, but it did not happen because of
his attorney. He understood that “you’re supposed to have the
right to a fair trial, but there’s no such thing.”
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12 Opinion of the Court 20-13166
The district court then asked whether he understood that he
had the right to be represented by counsel, but Cobble did not an-
swer directly, despite being asked multiple times. He stated that
an attorney told him that he did not have the right to representa-
tion and understood that the law said he was “supposed to have a
bunch of things” but that “the reality is there’s two sets of laws in
this country, what you’re supposed to do and what you do.” When
the court asked, “You do understand how it’s supposed to work;
correct?,” Cobble responded, “Yes.” Cobble further stated that he
always told his attorney what he thought should be done but that
they never listened. He said his lawyers were “not trying to do
anything realistic.”
He further testified that he “knew what [he] was doing”
when he was charged with violating a temporary protective order.
His defense in this case would be the same as it had been in the
past, that he had “the right to resist illegal arrest with all force nec-
essary for that purpose.” The district court cautioned that he had
the right to remain silent and did not have to say anything about
the current charges, which Cobble indicated he understood. He
was “not concerned” about anything he said at the hearing being
used against him at trial. His defense was that he had “the legal
right to write whatever threat I’m accused of writing” but “did not
cause it to be sent.” He did not write the certified mail form or the
return receipt. He said, “My legal argument is that I’m incompe-
tent, but what I want is different.”
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20-13166 Opinion of the Court 13
In explaining his change of opinion as to Cobble’s compe-
tence to stand trial, the district court noted that it now had the ben-
efit of an additional neuropsychological examination and testi-
mony (i.e., of Dr. Pennuto) that the court found persuasive. The
district court found, while Cobble may have an antisocial person-
ality disorder, he appeared sufficiently rational to understand the
nature and consequences of the proceedings and could properly as-
sist counsel in his defense. The district court found that Cobble
understood legal proceedings “better than most defendants.” It
continued that, based upon Cobble’s responses, it was “clear” that
he understood the nature and consequences of the proceedings and
“that, while he may be taking certain positions that some may think
are disadvantageous to his position, [it did not] think that neces-
sarily mean[t] that he [was] delusional” and did not understand the
proceedings. The court further noted that Cobble seemed to have
difficulty getting along with his attorneys but that it was convinced
that this was his choice and not a result of a mental defect or disor-
der. It found that Cobble was deciding not to be fully cooperative
and deferential and respectful to his counsel and that this behavior
did not rise to the level of incompetence. It concluded that, based
on the present situation, Cobble was competent to proceed to trial.
In response, Cobble declared that he was firing his attorney
and wanted to represent himself. The district court replied that it
was required to make certain that Cobble understood the ramifica-
tions of his decision. The district court then continued to ask if
Cobble understood his rights, to which Cobble gave mostly
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14 Opinion of the Court 20-13166
indirect answers. The district court continued to try to explain
Cobble’s rights that he would be waiving, and Cobble continued
not to respond directly to its queries about whether he understood.
At one point, the district court advised, “But you understand
that you have these rights and you’re giving them up by not going
along with a lawyer. You understand that; correct?” Cobble re-
sponded, “I never had those rights in the first place,” and when the
court pressed that he did have the rights, Cobble said, “Can’t hav-
ing [sic] something that never existed.” The district court then en-
couraged him to have counsel but stated it understood that its en-
couragement would not carry much weight with Cobble. It gave
Cobble the right to represent himself at trial and assigned his cur-
rent counsel to be standby counsel. The court asked Cobble if he
understood that counsel would be present as standby counsel if
Cobble had any questions. Cobble responded, not addressing the
statement about standby counsel, that “[t]he only problem I fore-
see is the way they write the jury when you strike the jury during
voir dire.” The district court responded by explaining aspects of
voir dire.
Cobble objected to the government presenting its argument
first at trial, and the district court told him he could preserve that
objection for later. The court went on to explain Cobble’s rights at
trial and the procedures that would be followed. Cobble re-
sponded to the court’s monologue with comments about his bad
experiences with attorneys.
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20-13166 Opinion of the Court 15
The district court asked Cobble if he wished to talk to
standby counsel after the hearing adjourned, and Cobble stated, “I
don’t acknowledge his existence.” The district court then moved
to the topic of witnesses for trial, to which Cobble responded that
he had witness subpoenas.
The district court entered an order finding that Cobble was
competent to stand trial, based on the evidence presented and the
reasons articulated at the conclusion of the hearing. It also found
that Cobble was competent to make the decision whether to rep-
resent himself and had knowingly, voluntarily, and intelligently
chosen to do so. It accordingly accepted Cobble’s election to rep-
resent himself but ordered that his previous counsel remain as
standby counsel during trial and until further order.
Cobble represented himself at trial. At trial, the district
court advised the jury that Cobble was competent to stand trial. At
the end of the first day of trial, after the jury had been excused,
Cobble stated that he intended to kill everyone in the courtroom.
During the second day of trial, the district court advised
Cobble that he was not required to testify, the fact that he did not
testify could not be used against him, and he had the right to testify
if he wished to. Cobble responded that he had been to jury trials
before and was familiar with those rights and then asserted that he
wished to testify in his own defense. Later that day, Cobble moved
for a mistrial so that the matter could be continued and retried with
an attorney. The district court denied his motion for a continuance
and his alternative motion for a mistrial, finding that it had
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16 Opinion of the Court 20-13166
provided Cobble with a competent attorney to represent him from
the start and that Cobble had chosen to represent himself. Cobble
interrupted that he never said he wanted to represent himself but
that he wanted to hire an attorney from the start. The district court
further noted that, although Cobble had advised that he did not
wish for his counsel to represent him, it had still kept the attorney
as standby counsel and he had been available for Cobble to consult
throughout the trial and at that time. The court concluded that it
was inappropriate for Cobble to request to hire counsel at that
stage in the proceedings and that Cobble’s rights to counsel had not
been denied, as he had the full opportunity to have competent
counsel and chose not to. During the trial, Cobble gave opening
and closing statements, examined witnesses, and made objections.
The jury found Cobble guilty on all counts and the district
court sentenced Cobble to 120 months’ imprisonment as to Count
1, 120 months as to Count 2 to be served consecutively to Count 1,
and 120 months as to Count 3 to be served concurrently with
Counts 1 and 2, for a total of 240 months’ imprisonment. His
standby counsel filed a notice of appeal of the convictions and sen-
tences “based upon Mr. Cobble’s expressed desires and intentions
to appeal.”
II.
On appeal, Cobble argues that the district court erred when
it permitted him to waive his constitutional right to be represented
by counsel at trial. Cobble attributes this error to two alleged
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20-13166 Opinion of the Court 17
deficiencies: (1) he asserts that the district court’s Faretta 2 colloquy
was deficient, and (2) he assets that the Fitzpatrick 3 factors weigh
in favor of concluding that his waiver of counsel was invalid, focus-
ing primarily on the first such factor and his arguments that his
mental problems impaired his ability to waive counsel knowingly.
In Part III, we briefly survey the relevant law. In Part IV, we ad-
dress the sufficiency of the Faretta colloquy conducted by the dis-
trict court and the advice received by Cobble with respect to the
risks of self-representation. In Part V, we discuss the Fitzpatrick
factors, with a focus on Cobble’s argument with respect to his men-
tal health.
III.
Whether a defendant validly waived his right to counsel is a
mixed question of law and fact that we review de novo. United
States v. Garey,
540 F.3d 1253, 1268 (11th Cir. 2008) (en banc). On
direct appeal, the government carries the burden of proving that
the waiver was valid.
Id.
Under the Sixth Amendment, all criminal defendants are en-
titled to the assistance of counsel. See U.S. Const. amend. VI. A
criminal defendant may exercise his constitutional right to repre-
sent himself by making a “knowing and voluntary” waiver of his
Sixth Amendment right to counsel, and clearly and unequivocally
2 Faretta v. California,
422 U.S. 806 (1975).
3 Fitzpatrick v. Wainwright,
800 F.2d 1057, 1065–67 (11th Cir. 1986).
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18 Opinion of the Court 20-13166
asserting his request. See United States v. Stanley,
739 F.3d 633,
645 (11th Cir. 2014). A defendant makes a clear and unequivocal
request for self-representation by either affirmatively invoking his
right to self-representation, or by rejecting his only constitutionally
entitled counsel with the understanding that his only alternative is
self-representation, the dangers of which he is aware. Garey,
540 F.3d at 1264–65.
After determining that the defendant clearly and unequivo-
cally invoked his right to self-representation, we determine
whether the request was knowing and intelligent by analyzing “the
particular facts and circumstances of his case, including his back-
ground, experience, and conduct.” United States v. Evans,
478 F.3d
1332, 1340 (11th Cir. 2007) (quotation marks and brackets omitted).
The knowing and voluntary standard considers whether the de-
fendant knows the risks of proceeding without a lawyer and volun-
tarily makes the decision to proceed without counsel in light of
those risks. See United States v. Kimball,
291 F.3d 726, 731 (11th
Cir. 2002). The determination is not concerned with whether the
defendant has the necessary legal knowledge to conduct his own
defense.
Id. A waiver can be valid when “an uncooperative de-
fendant rejects the only counsel to which he is constitutionally en-
titled, understanding his only alternative is self-representation with
its many attendant dangers.” Garey,
540 F.3d at 1265. We may
examine the entire record when determining if a defendant’s
waiver of counsel was knowing and voluntary. Stanley, 739 F.3d
at 646.
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20-13166 Opinion of the Court 19
The preferred method of assuring the defendant has made a
knowing and intelligent request is to conduct a pretrial Faretta
hearing, where the defendant can be informed of the charges, basic
trial procedures, and the hazards of self-representation. Id. at 645.
Our case law suggests eight factors (the Fitzpatrick factors) for con-
sideration in determining whether a defendant has made a know-
ing and voluntary waiver:
(1) the defendant’s age, educational background, and
physical and mental health; (2) the extent of the de-
fendant’s contact with lawyers prior to trial; (3) the
defendant’s knowledge of the nature of the charges,
possible defenses, and penalties; (4) the defendant’s
understanding of rules of procedure, evidence and
courtroom decorum; (5) the defendant’s experience
in criminal trials; (6) whether standby counsel was ap-
pointed, and the extent to which that counsel aided
defendant; (7) mistreatment or coercion of the de-
fendant; and (8) whether the defendant was trying to
manipulate the events of the trial.
Id. at 645–46 (citing Fitzpatrick v. Wainwright,
800 F.2d 1057,
1065–67 (11th Cir. 1986)). “The ultimate test is not the trial court’s
express advice, but rather the defendant’s understanding.” Id. at
645 (quotation marks omitted). We require a more extensive col-
loquy to waive counsel than to accept a guilty plea. United States
v. Cash,
47 F.3d 1083, 1088 (11th Cir. 1995)(citing Stano v. Dugger,
921 F.2d 1125, 1148 (11th Cir. 1991) (en banc).
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20 Opinion of the Court 20-13166
We have held that when an unwilling defendant refuses to
engage in a dialogue with the district court about the dangers of
self-representation, it is sufficient for a district court to unambigu-
ously inform the defendant of the penalties he would face if con-
victed and provide him with a sense of the challenge he would face
as a pro se litigant. Garey,
540 F.3d at 1267. We held that the court
needed to assure that the defendant “(1) understands the choices
before him, (2) knows the potential dangers of proceeding pro se,
and (3) has rejected the lawyer to whom he is constitutionally en-
titled.”
Id.
When assessing the validity of the waiver, we may consider
the district court’s dialogue with the defendant in proceedings
other than the Faretta hearing. In Stanley, we held that a district
court did not initially conduct an adequate Faretta hearing when it
failed to inquire into the defendant’s health; his understanding of
the nature of the charges, defenses, and penalties; his grasp of court
rules or procedures; or any mistreatment or coercion motivating
the defendant’s decision. However, we held that the district court
cured its initial error at trial when it inquired further into the de-
fendant’s desire to represent himself. See Stanley, 739 F.3d at 646.
We held that “we can look to the whole record for evidence of
whether [the defendant’s] waiver was knowing and voluntary and
therefore valid.” Id. In Stanley, we held that every Fitzpatrick fac-
tor except the fifth—that the defendant had no criminal trial expe-
rience—“strongly suggest[ed] his waiver was knowing and intelli-
gent.” Id. at 649. For the other factors, we considered that the
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20-13166 Opinion of the Court 21
defendant was a 43-year-old high school graduate who had a per-
sonality disorder with narcissistic issues but was legally competent
and found to be “a very bright man,” had a lengthy pretrial rela-
tionship with his court-appointed attorney who represented him
until the first day of the trial, was aware of the seriousness and com-
plexity of the charges and their penalties, understood that rules ex-
isted to govern the procedure of a trial, relied on assistance from
standby counsel, did not argue coercion or mistreatment, and at-
tempted to delay and manipulate the proceedings, showing he un-
derstood the risks he faced. Id. at 646–49 (quotation marks omit-
ted).
We previously have held that the district court erred when
it allowed a defendant with a narcissistic personality disorder to
represent himself. Cash,
47 F.3d at 1089–90. While some of the
other Fitzpatrick factors had been met, (1) the district court decided
on the same day as his trial that the defendant could represent him-
self; (2) the defendant had limited contact with his appointed law-
yer; (3) the defendant had no prior experience in criminal trials and
did not consult his standby counsel during trial; and (4) the defend-
ant’s personality disorder caused “him to overestimate and over-
state his abilities,” thus calling into question his claim of legal expe-
rience and trial expertise, as well as his understanding of the
charges he faced. In Cash, we elaborated that—
Had the district court personally engaged Appellant
in a discussion as to some of the specific pitfalls he was
likely to encounter in representing himself and
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22 Opinion of the Court 20-13166
thereby assured itself that, despite Appellant’s ten-
dency to give himself undue credit, Appellant under-
stood the ramifications of his decision, the questiona-
ble nature of Appellant’s self-assessments might have
been dispelled. Because no such searching colloquy
occurred, we conclude that the government has failed
to carry its burden of showing that Appellant know-
ingly, voluntarily and intelligently waived his right to
counsel.
Id. at 1090. Our explanation indicated that Cash’s personality dis-
order was not dispositive. Rather, the deficient Faretta colloquy
seems to have driven the decision. See
id. (“Because no such
searching colloquy occurred, we conclude that the government has
failed to carry its burden of showing that Appellant knowingly, vol-
untarily and intelligently waived his right to counsel.”).
IV.
Having surveyed the relevant law, we turn to Cobble’s as-
sertion that the district court’s deficient Faretta colloquy means
that the district court erred in holding that he had knowingly and
voluntarily waived his right to counsel. Cobble’s argument in this
regard is sparse. His only relevant argument boils down to the con-
clusory assertion that the district court failed to warn him of the
pitfalls that “he was likely to encounter in representing himself.”
Appellant’s brief at 14; see also id. at 17 (“In the instant case, there
were no warnings of the pitfalls of self-representation.”).
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20-13166 Opinion of the Court 23
Contrary to Cobble’s conclusory assertion, our review of the
record reveals that the district court, in its extensive discussions
with Cobble, comprehensively advised Cobble of the “dangers and
disadvantages of self-representation.” Garey,
540 F.3d at 1267
(quoting Faretta,
422 U.S. at 835). In this case, the district court
held two hearings in its effort to determine whether Cobble was
competent to stand trial. During the second hearing, in July 2018,
the district court conducted this inquiry knowing that Cobble had
already told his court-appointed counsel of his intention to termi-
nate counsel. The district court responded that counsel should pro-
ceed as his lawyer until the district court determined that Cobble
was competent. If and when that happened, the district court indi-
cated it would entertain any request by Cobble to proceed pro se.
Thus, during the entire July 2018 hearing—both before and after
the court found Cobble competent at which time Cobble immedi-
ately announced that he was firing his attorney—it is clear that the
district court was both eliciting evidence of competence and advis-
ing Cobble of his rights.
Although Cobble was uncooperative during the July 2018
hearing, it is nevertheless clear that he did invoke his constitutional
right of self-representation, and Cobble does not argue otherwise.
We also readily conclude that the district court’s Faretta colloquy
was more than sufficient. The district court comprehensively ad-
dressed the dangers and disadvantages of self-representation. The
district court repeatedly advised Cobble of the advantages that a
trained lawyer would have in protecting his rights. The district
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24 Opinion of the Court 20-13166
court advised Cobble fully with respect to voir dire, opening state-
ments, calling witnesses, cross-examining the government’s wit-
nesses, the right not to put up witnesses, the right to testify and the
right not to testify pursuant to the Fifth Amendment which cannot
be used against him, 4 the closing arguments, the court’s instruc-
tions to the jury, the fact that the jury would be composed of
twelve jurors and that, to convict him, the government would have
to convince all twelve jurors beyond a reasonable doubt. The dis-
trict court also advised Cobble with respect to the nature of the
charges and potential penalties. In addition, Dr. Pennuto testified
that Cobble understood the nature of the charges and the potential
penalties. The district court also discussed with Cobble the insan-
ity defense as well as Cobble’s own ideas with respect to his de-
fense. Dr. Pennuto also testified that Cobble was capable of, and
did, strategize with respect to his defenses to the charges against
him.
In sum, we conclude that Cobble’s assertion that the district
court’s Faretta colloquy was insufficient is wholly without merit,
both because Cobble’s challenge in this regard on appeal is conclu-
sory, and because we conclude that the district court’s advice to
Cobble and his understanding thereof was more than sufficient.
V.
4Cobble was also advised about how his Fifth Amendment rights could be
waived by testifying or otherwise making statements that might constitute a
waiver.
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20-13166 Opinion of the Court 25
We turn finally to Cobble’s argument that the Fitzpatrick
factors indicate that his waiver of the right to counsel was invalid.
We discuss each factor in turn.
A. The defendant’s age, educational background, and phys-
ical and mental health
At the time of the pending charges against him, Cobble was
in his mid-40s and had a high school diploma/GED. He told the
district court that he had taken advanced classes in middle school
and was an A student until high school. Nothing in the record sug-
gests that he currently suffers from any physical ailments.
The primary focus of Cobble’s appeal is that his “narcissistic
personality traits or disorder impaired his ability to waive his right
to counsel knowingly.” Appellant’s brief at 11. We agree with the
district court that Cobble’s argument is without merit. The district
court carefully examined Cobble’s mental health history, con-
ducted two hearings to examine Cobble’s competency to stand
trial, and held a Faretta hearing to determine whether Cobble was
making a knowing and voluntary waiver of his right to counsel.
Like the district court, we have reviewed the extensive evidence of
Cobble’s mental health history. We agree with the district court
that Dr. Pennuto presented the most persuasive evidence. After
daily interactions with Cobble over the six-month period that he
was at the Butner medical facility, Dr. Pennuto concluded that, alt-
hough Cobble did have an antisocial personality disorder that may
contribute to difficulty interacting with others, he was not delu-
sional and did not have a clinically significant mental disease or
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26 Opinion of the Court 20-13166
defect that would interfere with his ability to understand the nature
and consequences of the proceedings against him. Dr. Pennuto
based her conclusions on her daily interactions with Cobble. She
described her interactions:
[t]hrough my interactions . . . with him over the six
months that he was there, I was able to assess many
aspects of his executive functioning. . . . [H]e was able
to absolutely track information, make connections,
show that he could strategize, that he could . . . read
statutes and case law . . . and come up with strategies,
again . . . maybe not the best strategies, but he was
able to strategize related to his own defense.
Dr. Pennuto testified that Cobble’s antisocial personality disorder
certainly can make him more difficult to interact
with. But, again, that is a choice that he makes. He
has demonstrated that he is able to behave appropri-
ately and interact appropriately when he so chooses.
Dr. Pennuto also stated that he could “think critically, problem
solve, and strategize when it comes to his defense;” could recite
law from memory; could understand the pleas he could enter into
and what each meant; and could understand courtroom vocabu-
lary and vernacular.
Cobble’s reliance on our decision in Cash is misplaced. Un-
like Cash, the district court’s Faretta colloquy in this case was com-
prehensive and dispelled any concern that Cobble failed to
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20-13166 Opinion of the Court 27
understand the ramifications of his decision. Moreover, the Cash
opinion does not reveal anything like the persuasive evidence pro-
vided by Dr. Pennuto here, as well as by Cobble’s own statements
in his extensive colloquy with the district court, that Cobble had a
clear understanding of the significance of self-representation and
the significance of his decision to proceed pro se.
Even if he was competent to stand trial—which he asserts
he is not conceding although he does not challenge the district
court’s finding that he was—Cobble argues that he was not com-
petent to represent himself, thus implicitly arguing that he was not
competent to waive his right to assistance of counsel at trial. It is
true that, in Indiana v. Edwards,
554 U.S. 164 (2008), the Supreme
Court suggested that there may be some daylight between the
standard for determining whether a defendant is competent to
stand trial and the standard for determining whether a defendant
can be permitted to waive the right to counsel and proceed to trial
pro se. See id at 177–78 (“the Constitution permits States to insist
upon representation by counsel for those competent enough to
stand trial under Dusky[ 5] but who still suffer from severe mental
illness to the point where they are not competent to conduct trial
proceedings by themselves”); see also Holland v. Florida,
775 F.3d
1294, 1311 (11th Cir. 2014). We need not in this case decide that
issue, or the dimensions of any such daylight. We agree with the
district court that Cobble was not only competent to stand trial,
5 Dusky v. United States,
362 U.S. 402 (1960).
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28 Opinion of the Court 20-13166
but we also agree that the evidence persuasively indicates that Cob-
ble was competent to knowingly and voluntarily waive his right to
counsel. Although there was some contrary evidence, the persua-
sive evidence from the experts—primarily but not solely in the ev-
idence provided in the testimony and report of Dr. Pennuto—to-
gether with Cobble’s own discussions with the district court con-
vince us that Cobble possessed ample capability to knowingly, in-
telligently, and voluntarily waive his right to counsel.
Accordingly, the first Fitzpatrick factor weights in favor of a
waiver.
B. Extent of the defendant’s contact with lawyers prior to
trial
Cobble was appointed an attorney with the Federal Defend-
ers Office shortly after being indicted in late 2014. That attorney
withdrew and the attorney who eventually acted as standby attor-
ney at Cobble’s trial took over in early 2017 and represented him
at both competency hearings. At the end of the second hearing,
when discussing his new role as standby attorney, the district court
stated that the attorney and Cobble had “a special relationship,”
although concededly Cobble refused to acknowledge his standby
counsel’s presence at that time. Standby counsel did, however, ac-
tively represent Cobble with respect to pretrial motions. After the
district court granted Cobble’s request for self-representation, Cob-
ble forfeited the right to continue representing himself with respect
to pretrial matters. Cobble had filed 254 pretrial motions, the vast
majority of which were frivolous or immaterial. Accordingly, the
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20-13166 Opinion of the Court 29
court ordered standby counsel to resume the active representation
of Cobble for the remaining pre-trial proceedings, although Cobble
would be permitted to represent himself at trial, with counsel re-
verting to standby counsel.
Cobble had significant experience with lawyers prior to trial,
and thus, this factor weights in favor of a waiver.
C. The defendant’s knowledge of the nature of the charges,
possible defenses, and penalties
During the second hearing, the district court discussed with
Cobble the nature of the charges against him and the penalties as
well as his potential defenses. Indeed the court specifically dis-
cussed the insanity defense and advised him on what was necessary
for claiming it. Cobble revealed that he had developed a defense:
that he was incompetent at the time of the crime but not at the
time of the trial. Based on her lengthy discussions with Cobble
about the charges against him, Dr. Pennuto opined that he under-
stands what the charges mean and has a good idea of the potential
penalties. In fact, she testified that he developed strategies for his
own defense and that they discussed his interpretations of various
statutes. On the basis of the evidence from Dr. Pennuto, and his
own questioning of Cobble, the district court found that “this de-
fendant understands—better than most defendants—legal pro-
ceedings . . . [I]t’s clear to me that he does have an understanding
of the nature of these proceedings and the consequences.”
Thus, this factor weighs in favor of waiver.
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30 Opinion of the Court 20-13166
D. The defendant’s understanding of rules of procedure, ev-
idence, and courtroom decorum
During the Faretta hearing, the district court went into ex-
tensive detail about the benefits of having an attorney. The court’s
colloquy delved into the ability of trained counsel to question wit-
nesses and protect Cobble’s rights. Additionally, the court ex-
plained in some detail precisely what would occur at trial, from
voir dire to opening statements, cross-examination, Cobble’s right
not to testify, and jury instructions. Cobble’s comments and ques-
tions during the Faretta hearing displayed extensive knowledge: he
asked about possible help with the voir dire, commenting on the
way in which it was organized and objecting to the government’s
giving the opening statement. This factor too weighs in favor of
waiver.
E. The defendant’s experience in criminal trials
At the time of his arrest in this case, Cobble was serving a
sentence in state court that was not his first encounter with the
criminal justice system. In fact, by his own count, he had been in-
volved in five jury trials before this one. Cobble expressed strong
opinions about his experiences with attorneys in these various pro-
ceedings that made him want to proceed on his own. Although
negative, Cobble’s experience weighs strongly in favor of uphold-
ing the waiver because it indicates a level of understanding of the
procedures.
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20-13166 Opinion of the Court 31
F. Whether standby counsel was appointed, and the extent
to which that counsel aided defendant
Standby counsel was appointed and served as such during
the trial. However, counsel was ultimately ordered to handle all
pretrial matters because of Cobble’s filing of frivolous motions.
Counsel’s handling of pretrial matters meant that effectively Cob-
ble was represented when any plea agreement might have been of-
fered. This factor also weighs in favor of waiver.
G. Mistreatment or coercion of the defendant
Cobble does not assert that he was mistreated or coerced
nor is there any evidence of either in the record.
H. Whether the defendant was trying to manipulate the
events of the trial
There is strong evidence that Cobble was attempting to ma-
nipulate the events at trial. Cobble actually referred to himself as
a master manipulator. According to Dr. Warren-Phillips, he asked
her to find him incompetent so he could avoid punishment. In his
discussions with the district court, Cobble admitted that he used
legal arguments he didn’t actually believe in. For example, he told
the court: “I don’t believe I’m a sovereign citizen. I never said that.
It’s a legal argument in court.” he told the court: “My belief is that
I was always competent. My legal argument is that I’m not.” Fi-
nally, he was uncooperative throughout the proceedings in the dis-
trict court, to the point that he had to be removed from the court-
room during one hearing and to the point that he lost his right of
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32 Opinion of the Court 20-13166
self-representation during pre-trial proceedings for filing so many
frivolous pre-trial motions. But the expert testimony was that his
refusal to cooperate was a matter of choice. See Doc. 587 at 29 (Dr.
Pennuto testified: “But, again, that is a choice that he makes. He
has demonstrated that he is able to behave appropriately and inter-
act appropriately when he so chooses.”).
Accordingly, this factor weighs strongly in favor of uphold-
ing the waiver.
VI.
In sum, we reject both of Cobble’s arguments on appeal.
The Fitzpatrick factors weigh strongly in favor of upholding the
waiver, and the district court’s Faretta colloquy was more than
sufficient. Accordingly, we readily agree with the district court
that Cobble’s waiver of his right to counsel was knowing and vol-
untary and that the district court did not err in permitting him to
represent himself on trial.
The judgment of the district court is
AFFIRMED.
