USCA11 Case: 19-11970 Date Filed: 04/14/2022 Page: 1 of 45
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-11970
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALEEM HAKIM,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00126-MLB-AJB-1
____________________
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2 Opinion of the Court 19-11970
Before WILLIAM PRYOR, Chief Judge, GRANT, and ANDERSON, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal concerns whether a defendant’s waiver of his
right to counsel, U.S. CONST. amend. VI, is knowing when a court
gives materially incorrect or misleading information about his po-
tential maximum sentence. A jury found Saleem Hakim guilty as
charged on three misdemeanor counts of willful failure to file a fed-
eral income tax return. See
26 U.S.C. § 7203. Although Hakim was
represented by counsel at trial, he lacked representation during the
pretrial process. At his arraignment, Hakim expressed his desire to
waive his right to counsel and to represent himself. The magistrate
judge found that Hakim’s waiver was knowing after misinforming
him that the maximum sentence he could receive if convicted was
12 months of imprisonment. After trial, the district court sentenced
Hakim to 21 months of imprisonment. Hakim now argues that his
purported waiver of counsel was not knowing. Because the magis-
trate judge gave materially incorrect information about “the possi-
ble punishment he faced, we hold that there was no knowing and
intelligent waiver of [Hakim’s] right to counsel.” Molignaro v.
Smith,
408 F.2d 795, 796 (5th Cir. 1969) (Wisdom, J.). And because
“the defendant need not show prejudice to obtain a reversal,”
United States v. Stanley,
739 F.3d 633, 644 (11th Cir. 2014), we va-
cate and remand.
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19-11970 Opinion of the Court 3
I. BACKGROUND
The United States filed an information charging Saleem Ha-
kim with “willfully fail[ing] to make and file with the Internal Rev-
enue Service . . . an income tax return for each of the calendar
years” 2011, 2012, and 2013, despite knowing that “he and his
spouse had and received gross income in excess of the minimum
filing threshold.” At his arraignment, the magistrate judge advised
Hakim that he “ha[d] the right to a lawyer” and that the court
“would appoint one for [him] free of charge” if he could not afford
one. Brian Mendelsohn, the lawyer who would have been ap-
pointed to represent Hakim, informed the court that Hakim
“wishe[d] to represent himself.” After the magistrate judge an-
nounced his intention to “appoint and allow Mr. Mendelsohn to
represent [Hakim] for purposes solely for [the arraignment],” Ha-
kim “object[ed],” and the magistrate judge proceeded with “Hakim
representing himself for purposes of” the arraignment.
The magistrate judge acknowledged that Hakim had an “ab-
solute constitutional right . . . to represent [him]self,” but that the
law first required that the court “determine[] that [he was] able to
make that decision . . . willfully and also with full knowledge of
[his] rights in the law.” The magistrate judge then asked Hakim a
series of questions—“about [his] employment, [his] history, [and
his] past”—to make that determination. Hakim responded that he
would “remain silent” based on a series of incoherent and frivolous
arguments. Hakim asserted that he would “address th[e] matter as
the authorized representative for the so-called defendant in the all
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4 Opinion of the Court 19-11970
caps style Saleem Hakim,” but that “this Court hasn’t presented
anything to [him] that would give [him] any indication that they’ve
got subject matter o[r] personal jurisdiction.” He also asserted that
he “s[aw] this as being double jeopardy.”
The magistrate judge then advised Hakim about the pro-
ceedings that lay ahead. He read aloud the information against Ha-
kim and then informed Hakim that “[i]t is a criminal case, a Class
A misdemeanor, meaning that it’s punishable by a potential term
of imprisonment by up to one year.” (Emphasis added.) Later dur-
ing the arraignment, the magistrate judge repeated this advice:
“[T]his is again a Class A misdemeanor, so we’re not talking about
a felony involving imprisonment beyond one year.” (Emphasis
added.) At no point did the government dispute the veracity of the
magistrate judge’s advice about the term of imprisonment; it in-
stead supplemented that advice with more information about po-
tential penalties associated with these offenses, such as the maxi-
mum fine and supervised release.
The magistrate judge warned Hakim not to represent him-
self “because of the severity and seriousness of this case and the
consequences to [Hakim] if convicted.” And after explaining at
length the risks and dangers associated with representing himself,
the magistrate judge acknowledged that there was “a series of
other questions” that “[the Supreme Court] suggests that [he was]
to ask [Hakim] in order to make a decision about whether or not
[Hakim] [was] in right mind,” but “inferr[ed] that’s futile here,” as
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19-11970 Opinion of the Court 5
Hakim would deliver “the same speech” involving frivolous and
incoherent arguments as before.
After asking Hakim whether it was “still [his] desire at th[at]
time to represent [him]self and not accept appointment of Mr.
Mendelsohn to represent [him],” Hakim continued his incoher-
ence:
I am Saleem Naazir, family of Hakim, a living male
on the land and soil jurisdiction, as one of the people
of the several states, having owner’s equity and bene-
ficial interest in the all caps style, Capitis Diminutio
Maxima Saleem Naazir Hakim, which is an ens legis
aka Saleem N. Hakim, all caps, and aka Saleem Ha-
kim, who is allegedly being charged here as a defend-
ant.
The magistrate judge later said that Hakim would proceed “by way
of counsel” unless Hakim “clearly and unequivocally assert[ed] that
[he] [was] intending to represent [him]self.”
Later, when the magistrate judge said that he would “pro-
ceed with Mr. Mendelsohn as appointed for [Hakim],” Hakim re-
sponded, “No. I’ll make it clear, because I want to object to you
appointing counsel. It is my . . . intention[] to handle this matter.”
The magistrate judge “interpret[ed] [that statement] as [Hakim]
clearly and unequivocally stating . . . that” Hakim would represent
himself. And Hakim responded affirmatively.
The magistrate judge then “f[ound] that the defendant . . .
knowingly and intelligently and voluntarily waiv[ed] his right to
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6 Opinion of the Court 19-11970
counsel against [the court’s] advice.” And the magistrate judge ap-
pointed Mendelsohn to serve as standby counsel if Hakim later
changed his mind. But Hakim asserted that he was not “waiving
any rights” because “I’m choosing to operate as a pro per to address
this matter regarding this person.” The magistrate judge “f[ound]
those statements to be an attempt to confuse the record here.”
The magistrate judge reiterated his finding that Hakim was
knowingly and voluntarily waiving his right to counsel. The mag-
istrate judge found that “[Hakim] is understanding the proceeding
and having an intelligent conversation with [the court] about . . .
what [Hakim is] facing . . . and making arguments that while mer-
itless . . . reflect an understanding of the court proceeding.” “So
[the magistrate judge] f[ound] that [Hakim] [was] capable of exer-
cising his constitutional right to represent himself” and entered a
plea of not guilty over the same unorthodox objections.
Hakim’s dilatory tactics and obscurantism continued more
than three months later at his pretrial conference before the district
court. Mendelsohn informed the district court that Hakim had sent
him a letter the week before “in which he indicated that [Mendel-
sohn] was fired.” Mendelsohn clarified that Hakim was “not inter-
ested in any assistance,” “ha[d] not taken any [assistance] from
[Mendelsohn],” and “that [they] ha[d] basically zero communica-
tion.” The government represented that “in a prior conversation
with [Hakim], a plea offer was brought up . . . but [that] there was
no follow-up from [Hakim] after that conversation.” The district
court then explained to Hakim that pleading guilty “is a mitigating
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19-11970 Opinion of the Court 7
factor that leads to a reduction in the score under the sentencing
guidelines” and that if he desired to avail himself of that benefit, he
would have to plead guilty within the next week.
Hakim moved for a continuance because he wanted “the op-
portunity to seek counsel of [his] own choosing,” but the district
court found that Hakim was equivocating on the meaning of the
word “counsel” and was “not trying to communicate with [the dis-
trict court].” The district court found that, “in fact, what [Hakim]
said was that [he] want[ed] to seek counsel. And when [the district
court] asked whether that meant a lawyer, [Hakim] refused to an-
swer that question.” Hakim admitted to not speaking with any
other lawyer to assist him, and later—after the district judge’s her-
culean efforts to elicit a clear answer—Hakim admitted that he “un-
derstand[s] a lawyer to be a member of a bar, which is private, so
that’s something that [he was] not interested in.” Hakim said that
he “stipulate[d] to all of the facts” and announced his intention not
to “dispute . . . any of the facts” in the case against him. The district
court denied the motion to continue based on its findings that Ha-
kim “ha[d] indicated to [the court], quite clearly, [he] d[id] not in-
tend to hire a lawyer,” and that he “indicated that [he] [did not]
intend to contest anything at trial.”
The district court convened another hearing later that
month because Hakim represented that he wished “to enter a
change of plea.” Hakim at first affirmed that he “want[ed] to enter
a plea of guilty,” and that he came to that decision “on [his] own,”
without help from Mendelsohn. And the district court confirmed
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8 Opinion of the Court 19-11970
that there was no plea agreement between Hakim and the govern-
ment. But it quickly became evident that he would once again at-
tempt to push his unorthodox legal theories. The district court
tried to ask Hakim a series of questions to determine whether his
plea was knowing and voluntary, but Hakim refused to admit that
he was a United States citizen and instead affirmed only that he was
“a citizen of Detroit, Michigan, born and raised, in the Michigan
republic, which is, from what [he] underst[ood], to be nonfederal.”
But see Definitive Treaty of Peace Between the United States of
America and his Britannic Majesty, U.S.-Gr. Brit., arts. I–II, Sept. 3,
1783,
8 Stat. 80; An Act to admit the State of Michigan into the Un-
ion, ch. 6,
5 Stat. 144 (1837); U.S. CONST. amend. XIV, § 1. In Ha-
kim’s view, the United States is “the ten square mile radius of
Washington[,] D.C.” But see U.S. CONST. art. I, § 8, cl. 17.
But the district court managed to get some relevant infor-
mation out of him. Hakim was then 49 years old, has some college
education, is fluent in English, was not under the influence of any
drugs or alcohol, and did not suffer from any mental disability. But
things again became muddled when Hakim relied on the usual
script and denied that he is “Saleem Hakim.”
Hakim represented that he intended to “enter[] a plea on be-
half of Saleem Hakim,” to whom, he asserted, he is not identical.
Hakim stated that he is “a third-party intervener in th[e] matter.”
When the district court asked Hakim who would be going to
prison if a guilty plea were entered, Hakim responded, “[a] piece of
paper.” At that point, the district court informed him that “the
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19-11970 Opinion of the Court 9
flesh-and-blood person in front of [the court] could go to prison for
up to one year for each of the three counts that [Hakim] would
plead guilty to.” Hakim responded that he “d[id] not understand
that” because he “would be standing as surety for a legal fiction.”
The government announced its concerns with accepting any
guilty plea based on Hakim’s “explicit indication . . . that if the per-
son here were to plead guilty today that a piece of paper would go
to jail.” After a painstaking attempt to explain to Hakim the nature
of the proceedings and the requirements that must be satisfied be-
fore the district court could accept Hakim’s guilty plea, the district
court again put the question to Hakim: “Do you think you want to
plead guilty today?” Hakim’s answer was unambiguous: “I don’t
consent[,] and I do not understand.” The district court then de-
clined to enter a guilty plea and ordered Hakim to appear for trial.
A few days later, the jury trial began with Hakim represent-
ing himself during voir dire. After a fourteen-person jury was se-
lected but “[p]rior to the jury being sworn, [Hakim] moved the
Court for Mr. Mendelsohn to proceed as attorney of record and for
a continuance of the trial.” The district court granted Hakim’s mo-
tion and continued the trial for one week so that Mendelsohn could
“effectively prepare for trial.” Mendelsohn then participated in the
selection of a new jury.
Two days later, the jury returned a guilty verdict. It found
Hakim guilty on all three counts charged in the information. After
the government sought a sentencing range of 33 to 36 months, the
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10 Opinion of the Court 19-11970
district court entered a judgment against Hakim on all counts and
sentenced him to be imprisoned for a total of 21 months.
Hakim was not represented by a lawyer for four months—
almost the entire pretrial phase of the proceedings against him. Ha-
kim was represented from a week before trial until the judgment
was entered, five months later. Hakim now argues that he was de-
prived of his Sixth Amendment right to counsel during critical
stages of the process and that this deprivation requires reversal of
his conviction.
II. STANDARD OF REVIEW
Whether a defendant’s purported waiver of his right to
counsel was knowing 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). The parties agree that this standard governs
this appeal. And because this case comes to us on direct appeal, “the
government bears the burden of proving the validity of the
waiver.” United States v. Cash,
47 F.3d 1083, 1088 (11th Cir. 1995).
The dissent argues that we must instead review this appeal
for plain error, Dissenting Op. at 1, but that position conflicts with
the prevailing view in this Court and our sister circuits. To be sure,
some of our decisions raise whether de novo or plain-error review
applies when the defendant fails to raise the invalidity of the pur-
ported waiver in the district court. E.g., United States v. Owen,
963
F.3d 1040, 1048 n.5 (11th Cir. 2020). But “the mine run of [Eleventh
Circuit] cases apply de novo review without discussing whether a
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19-11970 Opinion of the Court 11
defendant formally objected at trial.” Stanley, 739 F.3d at 644 (first
citing United States v. Evans,
478 F.3d 1332, 1340 (11th Cir. 2007),
and then citing Cash,
47 F.3d at 1088); see also Garey,
540 F.3d at
1268; United States v. Kimball,
291 F.3d 726, 730 (11th Cir. 2002).
“Our sister circuits [have] uniformly appl[ied] a de novo standard
of review to a district court’s conclusion of law that a defendant has
waived his right to counsel.” United States v. McBride,
362 F.3d
360, 365 (6th Cir. 2004) (italics added); see also United States v.
Johnson,
24 F.4th 590, 600 (6th Cir. 2022) (collecting decisions);
United States v. Hansen,
929 F.3d 1238, 1248 (10th Cir. 2019);
United States v. Ductan,
800 F.3d 642, 648 (4th Cir. 2015); United
States v. Erskine,
355 F.3d 1161, 1166 (9th Cir. 2004). And our sister
circuits have reviewed de novo the validity of waivers even when
the defendant was later represented by counsel in the district court.
See, e.g., Ductan, 800 F.3d at 646–48; United States v. Hamett,
961
F.3d 1249, 1254–55 (10th Cir. 2020). Even if our precedent leaves
the question open, we will not disturb that uniformity.
The dissent asserts that a “straightforward application of the
federal criminal procedure rules directs us to” review for plain er-
ror. Dissenting Op. at 2. The dissent reasons that Hakim’s “lawyer
took over [Hakim’s] representation” and could have timely chal-
lenged Hakim’s previous waiver at that point,
id., months after his
waiver. Because Hakim’s lawyer failed to object despite having the
opportunity to do so, the dissent reasons that plain-error review
applies.
Id. We disagree.
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12 Opinion of the Court 19-11970
The text of the contemporaneous-objection rule forecloses
the dissent’s approach. Federal Rule of Criminal Procedure 51(b)
governs “how to preserve claims of error.” Puckett v. United
States,
556 U.S. 129, 135 (2009). Rule 51(b) unambiguously requires
that the objection be contemporaneous with the relevant ruling or
order: “A party may preserve a claim of error by informing the
court—when the court ruling or order is made . . . —of . . . the
party’s objection to the court’s action and the grounds for that ob-
jection.” FED. R. CRIM. P. 51(b) (emphasis added). A defendant’s
“[f]ailure to abide by this contemporaneous-objection rule ordinar-
ily precludes the raising on appeal of the unpreserved claim,” un-
less the “exception to that preclusion” for plain errors in Rule 52(b)
applies. Puckett,
556 U.S. at 135; see also FED. R. CRIM. P. 52(b) (“A
plain error that affects substantial rights may be considered even
though it was not brought to the court’s attention.”). And, if a de-
fendant “does not have an opportunity to object to a ruling or or-
der, the absence of an objection does not later prejudice that party.”
FED. R. CRIM. P. 51(b).
Because an error is considered unpreserved only if a defend-
ant had an opportunity to contemporaneously object and failed to
do so, it is irrelevant for purposes of error preservation that Hakim
was later represented by counsel. Contra Dissenting Op. at 2–4.
The relevant ruling—that Hakim knowingly waived his right to
counsel—took place four months before Mendelsohn’s representa-
tion of Hakim at trial. Even if Mendelsohn had challenged Hakim’s
previous waiver when the representation began, that challenge
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19-11970 Opinion of the Court 13
would not have been made “when the court ruling or order [was]
made.” FED. R. CRIM. P. 51(b). No reasonable interpretation of “this
contemporaneous-objection rule,” Puckett,
556 U.S. at 135 (em-
phasis added), would treat an objection months after “the court rul-
ing . . . [was] made,” FED. R. CRIM. P. 51(b), as contemporaneous
with that ruling. See Contemporaneous, BLACK’S LAW DICTIONARY
(11th ed. 2019) (“Living, occurring, or existing at the same time.”).
Because Mendelsohn lacked an opportunity to contemporaneously
object, the only question is whether Hakim himself had an oppor-
tunity to contemporaneously object to the validity of his own
waiver when he was unrepresented.
Hakim was not obliged to contemporaneously object to the
validity of his own waiver because—as the dissent concedes, Dis-
senting Op. at 3—he lacked “an opportunity to object to [that] rul-
ing.” FED. R. CRIM. P. 51(b). It makes no sense to suppose that a
defendant must have enough knowledge to object before he is ad-
vised of the dangers of proceeding without the assistance of coun-
sel. See Erskine,
355 F.3d at 1166 (“[The] requirements for review-
ing the validity of a Faretta waiver are predicated on the fact that
we do not expect pro se defendants to know the perils of self-rep-
resentation, and consequently, we cannot expect defendants to rec-
ognize that they have not been correctly and fully advised, let alone
to point out the court’s errors.”); Johnson, 24 F.4th at 601 (“It
would be nonsensical to require that a prospective pro se defendant
object to the district court’s inquiry into the defendant’s rationale
and ability to proceeding pro se.”). “To preserve the issue,
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14 Opinion of the Court 19-11970
defendants would have to recognize their own inability to repre-
sent themselves and object to their own request to proceed pro se.”
Johnson, 24 F.4th at 601. And because Hakim “d[id] not have an
opportunity to object to [the relevant] ruling or order” “when
th[at] . . . ruling or order [was] made,” “the absence of an objection
[could] not later prejudice” Hakim, FED. R. CRIM. P. 51(b), by re-
quiring him to establish a plain error, see FED. R. CRIM. P. 52(b).
We have rejected reviewing an appeal for plain error when
a pro se defendant failed to contemporaneously object to the valid-
ity of his own waiver. In United States v. Ly, a defendant repre-
sented himself at trial and “was unaware that he could testify in
narrative form.”
646 F.3d 1307, 1311 (11th Cir. 2011). Because he
falsely believed that he would need counsel to question him, he
waived his right to testify.
Id. at 1311–12. On appeal, the defendant
“argue[d] that the district court denied him his right to testify by
failing to correct his misunderstanding regarding the availability of
narrative testimony.”
Id. at 1312. “The [g]overnment contend[ed]
that plain-error review must apply because [the defendant] never
objected to the district court’s alleged denial of his right to testify.”
Id. at 1312 n.5. We rejected that “absurd” argument.
Id. “By defini-
tion, [the defendant] could not have objected to the district court’s
actions, for his claim lies in his ignorance of the law.”
Id. In that
circumstance, we held that the “contemporaneous-objection re-
quirement” did not apply.
Id. Likewise, the plain-error “exception”
in Rule 52(b) to the contemporaneous-objection requirement in
Rule 51(b), Puckett,
556 U.S. at 135, does not apply here because
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19-11970 Opinion of the Court 15
Hakim lacked an opportunity to contemporaneously object to the
magistrate judge’s ruling, see FED. R. CRIM. P. 51(b), “for his claim
lies in his ignorance of the law,” Ly,
646 F.3d at 1312 n.5.
The dissent relies on United States v. Davila,
749 F.3d 982
(11th Cir. 2014), and United States v. Margarita Garcia,
906 F.3d
1255 (11th Cir. 2018), for its position that the contemporaneous-
objection rule does not require a contemporaneous objection, Dis-
senting Op. at 3–5, but neither decision requires that we depart
from the text of Rule 51(b). In both cases, the defendants had op-
portunities to contemporaneously object to the relevant rulings.
In Davila, the defendant argued “for the first time on appeal”
that a “[m]agistrate [j]udge’s comments during a pre-plea hearing
constituted improper judicial participation in plea discussions.” 749
F.3d at 984. After the magistrate judge’s comments, the district
court twice ruled that the defendant’s guilty plea was valid with no
objection from the defendant to the magistrate judge’s previous
comments. Id. at 989–90. So, the defendant had two opportunities
to contemporaneously object to rulings about the validity of his
guilty plea, and he failed both times to do so. 749 F.3d at 989–90. It
follows that our holding in Davila that the defendant’s “case d[id]
not warrant departure from the rule that plain-error review applies
when a defendant fails to contemporaneously object to trial error,”
id. at 993, accords with our holding here that no objection months
after the magistrate judge’s ruling could have been contemporane-
ous.
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16 Opinion of the Court 19-11970
The dissent’s reliance on Margarita Garcia suffers from the
same problem. In Margarita Garcia, we applied plain-error review
after a defendant’s counsel failed to object to the admission of in-
culpatory testimony when both defense counsel and the defendant
were absent. 906 F.3d at 1262–63, 1268–69. Defense counsel “re-
turned to the courtroom at some point during the government’s
direct examination and while [the defendant] was still absent,” but
“no objection was made at any point during [the] testimony, either
upon defense counsel’s return or [the defendant’s] appearance.” Id.
at 1268. The next day, the prosecutor “bluntly asked defense coun-
sel” whether she was “going to state an objection,” and defense
counsel stated, “[n]ot at this time, no.” Id. at 1269. The events of
the next day made “clear[] that counsel deliberately chose to say
nothing and raise no objection.” Id. And we expressly rejected the
argument that a later “mo[tion] for a new trial” was sufficient “to
preserve her objection” because Rule 51(b) “unambiguously re-
quires parties to object ‘when the court ruling or order is made or
sought’ in order to properly preserve claims of error.” Id. at 1269
(emphasis added) (quoting FED. R. CRIM. P. 51(b)). Defense counsel
in Margarita Garcia—unlike Mendelsohn—had an opportunity to
“contemporaneously object[]” and “conscious[ly] fail[ed]” to do so.
Id. at 1266, 1269. So, Margarita Garcia does not require that we de-
part from the text of Rule 51(b) by holding that an objection four
months after the relevant ruling would have satisfied the contem-
poraneous-objection requirement.
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19-11970 Opinion of the Court 17
Our sister circuits have adopted the unambiguous meaning
of Rule 51(b) that we adopt here: when a defendant lacks an oppor-
tunity to contemporaneously object to “the district court’s ruling,”
he cannot “forfeit[] his assertion of error.” United States v. Burrell,
622 F.3d 961, 965 (8th Cir. 2010). “The ‘opportunity to object’ lan-
guage would be meaningless if the mere ability to file a motion for
reconsideration qualified as an opportunity to object, since a party
theoretically could file a later motion for reconsideration of virtu-
ally any district court ruling.”
Id. at 966. So, “[r]equiring a motion
for reconsideration after the ruling has issued . . . would exceed the
. . . requirements of . . . [the] contemporaneous-objection rule.”
Id.
(internal quotation marks omitted); accord United States v. Smith,
640 F.3d 580, 586 (4th Cir. 2011). Because Hakim lacked an oppor-
tunity to contemporaneously object, he cannot “later [be] preju-
diced,” FED. R. CRIM. P. 51(b), by application of Rule 52(b). It fol-
lows that, “notwithstanding [Mendelsohn’s] decision not to file a
motion for reconsideration of the court’s ruling[,] . . . plain error
review is not appropriate here.” Burrell,
622 F.3d at 966.
III. DISCUSSION
We divide our discussion in two parts. First, we consider
whether Hakim’s purported waiver of his right to counsel was
knowing and conclude that it was not. Second, we address whether
the deprivation of Hakim’s right to counsel constituted a structural
error requiring automatic reversal of his conviction and conclude
that it did.
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18 Opinion of the Court 19-11970
A. Hakim’s Waiver Was Not Knowing.
“In all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.” U.S.
CONST. amend. VI. “The Sixth Amendment secures to a defendant
who faces incarceration the right to counsel at all critical stages of
the criminal process.” Iowa v. Tovar,
541 U.S. 77, 87 (2004) (inter-
nal quotation marks omitted). “This right attaches at the pleading
stage of the criminal process.” Boyd v. Dutton,
405 U.S. 1, 2 (1972).
But the Supreme Court has held that “forcing a lawyer upon an
unwilling defendant is contrary to his basic right to defend himself
if he truly wants to do so.” Faretta v. California,
422 U.S. 806, 817
(1975). “[T]he right to self-representation—to make one’s own de-
fense personally—is . . . necessarily implied by the structure of the
[Sixth] Amendment.”
Id. at 819. So, “[t]he Sixth Amendment does
not provide merely that a defense shall be made for the accused; it
grants to the accused personally the right to make his defense.”
Id.
Because the constitutional rights to counsel and to self-rep-
resentation cannot be exercised at once, a defendant can exercise
one only if he waives the other. It follows that, “[w]hen an accused
manages his own defense, he relinquishes, as a purely factual mat-
ter, many of the traditional benefits associated with the right to
counsel.”
Id. at 835. “For this reason, in order to represent himself,
the accused must knowingly and intelligently” waive his right to
counsel.
Id. (internal quotation marks omitted). If the waiver was
not made by the accused with the requisite knowledge, then he has
been deprived of “the right to counsel” at any “critical stage[] of the
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19-11970 Opinion of the Court 19
criminal process” at which he lacks a lawyer, including at “[a] plea
hearing” and at other pretrial proceedings. See Tovar,
541 U.S. at
87 (internal quotation marks omitted); see also Brewer v. Williams,
430 U.S. 387, 404 (1977) (“This strict standard applies equally to an
alleged waiver of the right to counsel whether at trial or at a critical
stage of the pretrial proceedings.”). “Because [Hakim] received a
[21-month] prison term for his . . . conviction, he had a right to
counsel both at the plea stage and at trial . . . .” Tovar,
541 U.S. at
87.
At arraignment, Hakim unambiguously expressed to the
magistrate judge a desire to waive his right to counsel and to rep-
resent himself. See Raulerson v. Wainwright,
732 F.2d 803, 808
(11th Cir. 1984) (“Such a knowing waiver must be made by a clear
and unequivocal assertion of the right to self-representation.” (in-
ternal quotation marks omitted)). But the question remains
whether Hakim’s expressed desire to represent himself was made
with the requisite knowledge. This Court has identified the follow-
ing eight factors that might be useful in making that determination:
(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
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20 Opinion of the Court 19-11970
the defendant; (7) mistreatment or coercion of the de-
fendant; and (8) whether the defendant was trying to
manipulate the events of the trial.
Owen, 963 F.3d at 1049; see also Fitzpatrick v. Wainwright,
800
F.2d 1057, 1065–67 (11th Cir. 1986).
Hakim argues that his attempt to waive his right to counsel
and to exercise his right to self-representation was invalid because
“the trial court affirmatively led [him] astray as to the maximum
penalty he faced.” The government concedes that “the magistrate
judge did not expressly tell defendant at the arraignment that he
faced a possible maximum sentence of three years,” but argues that
“that is only one part of one of the eight factors this Court considers
when assessing whether a defendant’s waiver of his right to counsel
was knowing and voluntary.” We agree with Hakim.
The Supreme Court has repeatedly explained that a defend-
ant’s waiver is made with the requisite knowledge only if he under-
stands the likely consequences of conviction. “To be valid such
waiver must be made with an apprehension of the nature of the
charges, the statutory offenses included within them, [and] the
range of allowable punishments thereunder . . . .” Von Moltke v.
Gillies,
332 U.S. 708, 724 (1948) (plurality opinion) (emphases
added). And “before a defendant may be allowed to proceed pro se,
he must be warned specifically of the hazards ahead.” Tovar,
541
U.S. at 88–89 (emphasis added). Faretta itself commands that a de-
fendant “should be made aware of the dangers and disadvantages
of self-representation, so that the record will establish that he
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19-11970 Opinion of the Court 21
knows what he is doing and his choice is made with eyes open.”
422 U.S. at 835 (internal quotation marks omitted). The “dangers,”
id., of which defendants “must” be made aware include “the rele-
vant circumstances and likely consequences” of conviction. Brady
v. United States,
397 U.S. 742, 748 (1970). Because “[t]he purpose
of the ‘knowing and voluntary’ inquiry . . . is to determine whether
the defendant actually does understand the significance and conse-
quences of a particular decision,” the defendant “must have a full
understanding of what the [decision] connotes and of its conse-
quence.” Godinez v. Moran,
509 U.S. 389, 401 n.12 (1993) (internal
quotation marks omitted).
Our precedents confirm that a defendant must have an
awareness of the penal consequences of conviction before his deci-
sion to represent himself can constitute a knowing waiver of his
Sixth Amendment right to counsel. See, e.g., Cash,
47 F.3d at 1088;
Molignaro,
408 F.2d at 799; Kimball,
291 F.3d at 732. In United
States v. Garey, for example, the en banc Court explained that a
waiver is “valid” only if it was “made with an apprehension
of . . . the range of allowable punishments” to which the defendant
would be exposed if he were convicted.
540 F.3d at 1266 (internal
quotation marks omitted). Facts about possible punishments are
“essential to a broad understanding of the whole matter.”
Id. (in-
ternal quotation marks omitted).
Similarly, in Molignaro v. Smith, Judge Wisdom, writing for
our predecessor Court, stated that the “duty of the trial judge” is
“to be certain that the defendant understands the extent of the
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22 Opinion of the Court 19-11970
punishment possible.”
408 F.2d at 799. There, the defendant “con-
tended that he had not knowingly waived counsel at the time he
pleaded guilty, and that his conviction on the basis of that plea had
therefore violated the sixth and fourteenth amendments.”
Id. at
797. There was “no evidence at all to indicate that either the pros-
ecution or the state trial judge apprised [him], prior to his plea, of
the twenty-year maximum sentence” to which he was exposed.
Id.
at 798. As a result, our predecessor Court set aside the conviction
and the sentence.
Id. at 802. Following other courts, we recognized
that “a defendant, before declining an attorney’s help, is entitled to
know the range of penalty.”
Id. at 800 (internal quotation marks
omitted). And we concluded that, “[i]n determining the fairness of
allowing a purported waiver of counsel to stand, . . . at the very
minimum a defendant must understand not only the nature of the
charge but the seriousness of the penalties the law prescribes for
the violation.”
Id. (quoting Stroetz v. Burke,
268 F. Supp. 912, 917
(E.D. Wis. 1967)).
We need not decide the precision with which defendants
generally must know the consequences of conviction because the
magistrate judge gave Hakim materially incorrect information
about his maximum sentence that rendered his waiver unknowing.
“An important element of the ‘understanding’ defendants must
possess in order to waive counsel validly is awareness of the possi-
ble penalties attaching to the charges they face.”
Id. at 799 (empha-
sis added). In Garey, the en banc Court explained that, when, as
here, a court is “confronted with a defendant . . . who refuses to
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19-11970 Opinion of the Court 23
provide clear answers to questions regarding his Sixth Amendment
rights, it is enough for the court to inform the defendant unambig-
uously of the penalties he faces if convicted.”
540 F.3d at 1267 (em-
phasis added). The magistrate judge fell short of that obligation.
The magistrate judge’s statements were materially incor-
rect. Instead of “unambiguously” informing Hakim of the penalties
he faced,
id., the magistrate judge incorrectly asserted that “we’re
not talking about a felony involving imprisonment beyond one
year”—when the true maximum was three times longer. (Empha-
sis added.) “And we cannot consider the difference between” up to
one year imprisonment and three years “immaterial,” see Hamett,
961 F.3d at 1258 (internal quotation marks omitted), when the ac-
tual sentence imposed was significantly higher than the one-year
maximum the defendant was told he would face, and when a de-
fendant could sensibly elect to seek representation based on that
difference, cf. Lee v. United States,
137 S. Ct. 1958, 1966–67 (2017)
(explaining that a defendant’s decision to go to trial could rationally
be based on a difference of two years between the possible maxi-
mum sentence and a plea offer). “[I]ndulg[ing],” as we must, “in
every reasonable presumption against waiver” of the right to coun-
sel, we cannot conclude that the “strict [waiver] standard” was sat-
isfied here. See Brewer,
430 U.S. at 404.
United States v. Kimball is instructive. In that decision, we
were “troubled by whether [the] [d]efendant understood the con-
sequences of a guilty verdict and what would happen if the trial
went badly for him.” Kimball,
291 F.3d at 731. Our doubts about
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24 Opinion of the Court 19-11970
whether the defendant adequately understood the consequences of
a guilty verdict did not arise from the district court’s failure to in-
form him of the maximum possible sentence; the district court
“went through each count and told [him] the maximum sentence
under each count.”
Id. at 731–32. And—unlike the magistrate judge
here—“the district court informed [the] [d]efendant that the court
had the power to sentence him to consecutive sentences.”
Id. at
732. But the district court “did not stop with a warning as to the
maximum or theoretical penalties [the] [d]efendant faced.”
Id. The
district court went on to “discuss[] with the prosecutor [the]
[d]efendant’s likely sentence under the federal sentencing guide-
lines.”
Id. That discussion led to a misleading prediction about his
likely sentence.
Id. “If the district court had simply told [him] the
maximum conceivable sentence he faced, th[e] case would [have]
be[en] an easy one.”
Id. We concluded that this misleading infor-
mation did not render the defendant’s waiver unknowing because
the record established, based on the correct information about his
maximum sentence, that he “understood that, if convicted, he
could be sentenced to a long[er] prison term” than the prediction
suggested.
Id.
To be sure, giving materially incorrect information about
the defendant’s sentence does not render his waiver unknowing if
the defendant understood correct countervailing information from
another source. See
id. at 731–32. “The ultimate test is not the trial
court’s express advice, but rather the defendant’s understanding,”
Stanley, 739 F.3d at 645 (internal quotation marks omitted), and
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19-11970 Opinion of the Court 25
giving correct advice to a defendant about possible punishments is
“the ideal method” of ensuring that he has that understanding, see
Garey,
540 F.3d at 1266 (internal quotation marks omitted). But a
defendant may also obtain an awareness of the penal consequences
of his decision from other sources. See Jones v. Walker,
540 F.3d
1277, 1293 (11th Cir. 2008) (en banc) (“So long as a defendant
knows the risks associated with self-representation, it is irrelevant
for constitutional purposes whether his understanding comes from
a colloquy with the trial court, a conversation with his counsel, or
his own research or experience.”). If a district court gives materially
incorrect information about a defendant’s sentence, the record
must support—directly or inferentially—a finding that the defend-
ant received corrective information, either from the district court
or from another source, before his waiver was accepted as valid.
Cf. Stanley, 739 F.3d at 646 (“[T]he fact that a defendant later be-
came aware of the consequences of his decision may not cure a
waiver that was initially unknowing.”). Otherwise, we cannot con-
clude that the waiver was knowing.
The magistrate judge not only failed to inform Hakim of the
maximum sentence, but he misled Hakim by incorrectly represent-
ing that the maximum term of imprisonment would be one year,
when it was instead three years. The magistrate judge’s error
would not be dispositive if the government could show, consistent
with its burden in this context, see Cash,
47 F.3d at 1088, that there
was other evidence in the record to suppose that Hakim knew at
the relevant time the correct range from another source, see
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26 Opinion of the Court 19-11970
Kimball,
291 F.3d at 731–32; Owen, 963 F.3d at 1049. Instead, the
evidence suggests the opposite.
Neither the government nor Mendelsohn—Hakim’s
standby counsel—corrected the magistrate judge’s error. How
much a defendant interacts with persons learned in the law is rele-
vant to whether the requisite information was conveyed, but no
“understanding c[a]me[] from . . . a conversation with his counsel,”
Jones, 540 F.3d at 1293, because Mendelsohn later informed the dis-
trict court that Hakim received no assistance from him and “that
[they] ha[d] basically zero communication.” So, we cannot infer
that Hakim received corrective information from a lawyer because
“the extent of [his] contact with lawyers prior to trial” and “the ex-
tent to which [standby] counsel aided” him were minimal. See
Owen, 963 F.3d at 1049. And the correct understanding of the
range of possible punishments did not “come[] from a colloquy
with the” magistrate judge, see Jones,
540 F.3d at 1293, who twice
gave materially incorrect information and gave no accurate coun-
tervailing information as in Kimball.
When a district court gives a defendant materially incorrect
information about his maximum sentence during a Faretta collo-
quy and the record does not establish that the defendant received
corrected information, the typical eight-factor analysis cannot be
applied, as in this case, to permit a conclusion that the waiver of a
defendant like Hakim was knowing. To be sure, as we have ex-
plained, some of those factors—such as the extent of contact with
lawyers—are relevant to whether a defendant received corrective
USCA11 Case: 19-11970 Date Filed: 04/14/2022 Page: 27 of 45
19-11970 Opinion of the Court 27
information. But if he did not know or receive the correct infor-
mation, we cannot render his waiver knowing by counting factors.
For example, although Hakim’s “age, educational background, and
physical and mental health,”
id., permit an inference that he would
have understood countervailing information if it had been given,
they do not permit an inference that he received that information.
An educated and intelligent layman of sound mind can be misled
about the maximum penalties he faces. The magistrate judge did
not “inform[] [Hakim] that the court had the power to sentence
him to consecutive sentences.” Kimball,
291 F.3d at 732. And be-
cause it is the government’s burden to establish the validity of the
waiver, Cash,
47 F.3d at 1088, we cannot speculate for the govern-
ment that an educated and middle-aged layman would know the
difference between consecutive and concurrent sentencing and
whether and when either possibly applies, see Molignaro,
408 F.2d
at 799, 800 n.4 (explaining that “[t]he duty of the trial judge [is] to
be certain that the defendant understands the extent of the punish-
ment possible” and suggesting that to do so the trial judge should
ensure that the defendant is informed “of the maximum possible
sentence on the charge, including that possible from consecutive
sentences” (emphasis added) (internal quotations omitted)).
Other factors that this Court ordinarily considers when de-
termining whether a defendant understood the consequences of
proceeding without a lawyer also cannot render a waiver knowing
when a district court gives materially incorrect information about
a sentence without correction. To be sure, Hakim was not
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28 Opinion of the Court 19-11970
“mistreat[ed] or coerc[ed]” and may have been “trying to manipu-
late” the proceedings with his bizarre theories. Owen, 963 F.3d at
1049. But we cannot conclude from those facts that the magistrate
judge did not mislead Hakim about his maximum and likely sen-
tence. And even if Hakim had impressive knowledge “of rules of
procedure, evidence, and courtroom decorum,” id.—and his per-
formance suggests the opposite—we would still need evidence that
he did not believe the magistrate judge’s material misrepresenta-
tions.
On this record, we cannot conclude that Hakim’s waiver
was knowing. It is “incumbent upon the [government] to,” Brewer,
430 U.S. at 404, “clearly establish[] that” the waiver was knowing,
Brookhart v. Janis,
384 U.S. 1, 4 (1966). Because we must “indulge
in every reasonable presumption against waiver,” Brewer,
430 U.S.
at 404, we must presume that Hakim was misled by the magistrate
judge’s material misrepresentations about his sentence. And be-
cause there is an “absence of a showing that the [defendant] was
[correctly] informed [by some source or other] of the possible pun-
ishment he faced” after he received materially incorrect infor-
mation, “we hold that there was no knowing and intelligent waiver
of the right to counsel.” See Molignaro,
408 F.2d at 796.
B. The Constitutional Error Was Structural.
Because Hakim’s purported waiver of his Sixth Amendment
right to counsel was invalid, we must decide whether Hakim was
deprived of “the assistance of counsel during a[ny] critical stage[]
of the criminal justice process.” Jones,
540 F.3d at 1287. As noted,
USCA11 Case: 19-11970 Date Filed: 04/14/2022 Page: 29 of 45
19-11970 Opinion of the Court 29
the Sixth Amendment “secures to a defendant who faces incarcer-
ation the right to counsel at” those “stages of the criminal process.”
Tovar,
541 U.S. at 87 (internal quotation marks omitted). And “[i]t
is well settled that” that right “applies to certain steps before trial.”
Missouri v. Frye,
566 U.S. 134, 140 (2012). “Critical stages include
arraignments, postindictment interrogations, postindictment
lineups, and the entry of a guilty plea.” Id.; see also White v. Mar-
yland,
373 U.S. 59, 60 (1963) (holding that a preliminary hearing
was a critical stage because the “petitioner entered a plea before the
magistrate and that plea was taken at a time when he had no coun-
sel”); Tovar,
541 U.S. at 87 (“A plea hearing qualifies as a critical
stage.” (internal quotation marks omitted)); United States v. Roy,
855 F.3d 1133, 1147 (11th Cir. 2017) (en banc) (explaining that crit-
ical stages “of a criminal proceeding where the defendant has a
right to counsel” include “an arraignment, . . . a preliminary hear-
ing, [and] a plea hearing”).
Hakim lacked “the Assistance of Counsel for his defence,”
U.S. CONST. amend. VI, at all stages of the pretrial process. This
period included his arraignment before the magistrate judge at
which a plea was entered in his behalf; it included the period during
which the government extended to him “a plea offer”; and it in-
cluded another hearing at which he attempted “to enter a change
of plea” based on a decision at which he arrived “on [his] own,”
without help from his standby counsel. At both the initial arraign-
ment and the hearing at which Hakim attempted (without success)
to plead guilty, “plea[s] w[ere] taken . . . when he had no counsel.”
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30 Opinion of the Court 19-11970
White,
373 U.S. at 60. These stages of the pretrial process were crit-
ical, Frye,
566 U.S. at 140; Roy, 855 F.3d at 1146–47; Molignaro,
408
F.2d at 798–99, so Hakim was deprived of his constitutional right
to counsel.
The constitutional error was structural. White v. Maryland
establishes both that a plea hearing is a critical stage, and that “we
do not stop to determine whether prejudice resulted” because
“[o]nly the presence of counsel could have enabled this accused to
know all the defenses available to him and to plead intelligently.”
373 U.S. at 60 (internal quotation marks omitted). And our prece-
dents hold that “[i]f the Government cannot meet [its] burden [to
prove a valid waiver], the defendant need not show prejudice to
obtain a reversal.” Stanley, 739 F.3d at 644; accord Cash,
47 F.3d at
1090 n.5 (“Because a trial court’s acceptance of an invalid waiver of
the Sixth Amendment right to counsel is not subject to harmless
error analysis, we do not inquire into whether a different result
would have obtained had Appellant been represented by counsel
at trial.” (citation omitted)); United States v. Fant,
890 F.2d 408, 410
(11th Cir. 1989) (“The importance of [ensuring that a waiver is
made knowingly, intelligently, and voluntarily] is underscored by
the fact that a violation of [the] right [to counsel] is not subject to
harmless error analysis.”); see also Chapman v. United States,
553
F.2d 886, 891 (5th Cir. 1977) (“The nature of the right to defend pro
se renders the traditional harmless error doctrine peculiarly inap-
posite.”). It follows that the deprivation of Hakim’s right to counsel
at all pretrial stages of the proceedings against him was a structural
USCA11 Case: 19-11970 Date Filed: 04/14/2022 Page: 31 of 45
19-11970 Opinion of the Court 31
error. “The fact that the evidence against [Hakim] was overwhelm-
ing plays no part in the analysis, because the denial of a right to
counsel cannot be harmless error.” Strozier v. Newsome,
871 F.2d
995, 997 n.3 (11th Cir. 1989).
IV. CONCLUSION
We VACATE Hakim’s conviction and REMAND to the dis-
trict court for further proceedings.
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19-11970 GRANT, J., Dissenting 1
GRANT, Circuit Judge, dissenting:
I disagree with the majority’s conclusion that we should re-
view de novo whether Saleem Hakim validly waived his Sixth
Amendment right to counsel. Instead, plain error review should
apply, and under that standard his conviction stands.
I.
In recent years, our Circuit has repeatedly recognized, but
left open, the question of whether plain error review applies when
a defendant challenges the validity of his right-to-counsel waiver
for the first time on appeal. See United States v. Muho,
978 F.3d
1212, 1218 n.2 (11th Cir. 2020); United States v. Owen,
963 F.3d
1040, 1048 n.5 (11th Cir. 2020); United States v. Stanley,
739 F.3d
633, 644–45 (11th Cir. 2014). The majority now makes a choice;
after looking to cases of our sister circuits, it selects de novo review.
But those cases based their reasoning on a factual predicate absent
here. Not a single one involved a defendant who was represented
by an attorney before sentencing, much less before trial.
The Ninth Circuit explained that it did not “expect pro se
defendants to know the perils of self-representation,” and so could
not “expect defendants to recognize that they have not been cor-
rectly and fully advised, let alone to point out the court’s errors.”
United States v. Erskine,
355 F.3d 1161, 1166 (9th Cir. 2004). It
therefore applied plain error review where the defendant repre-
sented himself through the rest of the proceedings.
Id. at 1165–67.
The Fourth and Tenth Circuits have since grafted that reasoning
USCA11 Case: 19-11970 Date Filed: 04/14/2022 Page: 33 of 45
2 GRANT, J., Dissenting 19-11970
onto a different set of facts, applying de novo review where new
counsel was appointed to represent the defendants only at sentenc-
ing. See United States v. Ductan,
800 F.3d 642, 646–48 (4th Cir.
2015); United States v. Hamett,
961 F.3d 1249, 1254, 1255 n.3 (10th
Cir. 2020). But the majority identifies no case that applied de novo
review where a defendant, represented by counsel even before
trial, still failed to challenge his earlier waiver.
Our Circuit has indicated that plain error review would be
“especially” appropriate where a lawyer took over a defendant’s
representation and “easily could have challenged” his client’s “pre-
vious waiver before the district court.” Stanley, 739 F.3d at 645.
That’s exactly what happened here. Hakim’s standby counsel—
who attended the arraignment where Hakim chose to proceed pro
se and then kept up with the case in his standby role—began repre-
senting Hakim before the jury was sworn. He received a week to
prepare for the trial, during which he filed new proposed voir dire
questions and a motion in limine. He went on to present Hakim’s
case throughout a three-day trial. But he never challenged Hakim’s
previous waiver. If there were ever a self-representation case that
merited plain error review, this would be it.
A straightforward application of the federal criminal proce-
dure rules directs us to follow that course. Rules 51(b) and 52(b)
instruct parties to raise issues to the district court’s attention or face
plain error review. See Puckett v. United States,
556 U.S. 129, 135
(2009). “A party may preserve a claim of error by informing the
court—when the court ruling or order is made or sought—of the
USCA11 Case: 19-11970 Date Filed: 04/14/2022 Page: 34 of 45
19-11970 GRANT, J., Dissenting 3
action the party wishes the court to take, or the party’s objection
to the court’s action and the grounds for that objection.” Fed. R.
Crim. P. 51(b). A litigant must object in a “timely manner” to pre-
serve the issue. Puckett,
556 U.S. at 134.
The very question before us is whether Hakim knowingly
waived his right to counsel, so of course we cannot say that, while
representing himself, Hakim had a real opportunity to object to the
court’s acceptance of that waiver. And Rule 51(b) itself recognizes
that if “a party does not have an opportunity to object to a ruling
or order, the absence of an objection does not later prejudice that
party.” Fed. R. Crim. P. 51(b). Had Hakim continued to represent
himself even through trial, this case would align with those of our
sister circuits that applied de novo review, and I would agree with
the majority’s decision to follow along. See United States v. Hung
Thien Ly,
646 F.3d 1307, 1312 n.5 (11th Cir. 2011). But that is not
what happened.
Instead, Hakim’s standby counsel took over his representa-
tion well before trial. He thus had “ample occasion” to object—
not only before Hakim’s conviction, but before the trial even
started. United States v. Davila,
749 F.3d 982, 993 (11th Cir. 2014).
In our Circuit, “it is firmly established” that we apply plain error
review when a defendant “fails to object once the opportunity
arises, regardless of why the unpreserved error was committed or
whether the Government or the district court were aware of it.”
United States v. Margarita Garcia,
906 F.3d 1255, 1270 n.3 (11th Cir.
USCA11 Case: 19-11970 Date Filed: 04/14/2022 Page: 35 of 45
4 GRANT, J., Dissenting 19-11970
2018) (quotation omitted and emphasis added); see also Davila, 749
F.3d at 993.
An objection once Hakim’s counsel stepped in would not
have come “too late to allow the district court to correct the error
and avert an unnecessary retrial.” Margarita Garcia, 906 F.3d at
1269 (quotation omitted). The lawyer could have moved to dis-
miss the indictment or to withdraw the not-guilty plea before the
trial began. See Fed. R. Crim. P. 12(b)(1) (“A party may raise by
pretrial motion any defense, objection, or request that the court
can determine without a trial on the merits.”). Motions that assert
defects in pretrial proceedings occur as a matter of course at that
stage—and for good reason. See, e.g., United States v. Smith,
983
F.3d 1213, 1217 (11th Cir. 2020); Davila, 749 F.3d at 989. These
motions, like the plain error rule that incentivizes them, allow dis-
trict courts to make informed decisions about whether an error oc-
curred, to correct any error brought to their attention, and “to de-
velop a full record on the issue” that will aid review on appeal. See
Margarita Garcia, 906 F.3d at 1267–68. District courts are not in
the business of ignoring them because they were not made imme-
diately after an error allegedly occurred.
The majority criticizes my invocation of United States v.
Davila, and sets aside that case because there, “the defendant had
two opportunities to contemporaneously object to rulings about
the validity of his guilty plea, and he failed both times to do so.”
Maj. Op. at 15. But this rationale proves the point. Consider
Davila’s facts: the first ruling was the initial acceptance of the guilty
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19-11970 GRANT, J., Dissenting 5
plea, and the second occurred nearly six months later, after the de-
fendant moved to vacate his plea and dismiss the indictment.
Davila, 749 F.3d at 988–90. The reason plain error review applied
is that the latter motion did not assert the error the defendant even-
tually raised on appeal. See id. at 990, 992–93. Under the majority’s
own reasoning, Hakim would have been able to “contemporane-
ously object” just like the defendant in Davila if he had filed a later
motion challenging the validity of his waiver and elicited another
ruling from the district court.
Indeed, it is exactly that shortcoming that requires plain er-
ror review. Hakim had an opportunity to object once his counsel
took over; like the defendant in Davila, he could have made use of
that opportunity by filing any number of motions that would have
allowed him to challenge the validity of his waiver. For whatever
reason, his counsel—who was present during the discussion lead-
ing up to the waiver—chose not to do so.
Our adversarial system generally requires a party to “look to
his counsel to protect him” and to “bear the cost of the lawyer’s
mistakes.” 3B Charles Alan Wright & Peter J. Henning, Federal
Practice and Procedure § 856 (4th ed. 2013). Those points apply
here as well as anywhere. Because Hakim’s counsel failed to chal-
lenge his waiver once the opportunity arose, we should not apply
de novo review.
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6 GRANT, J., Dissenting 19-11970
II.
Even so, we can review Hakim’s challenge under the plain
error standard, which provides a narrow exception to the usual rule
that we will not correct unpreserved errors on appeal. See Hen-
derson v. United States,
568 U.S. 266, 268 (2013). To receive relief
under that standard, the defendant must satisfy three threshold
conditions: “First, there must be an error that has not been inten-
tionally relinquished or abandoned. Second, the error must be
plain—that is to say, clear or obvious. Third, the error must have
affected the defendant’s substantial rights.” Rosales-Mireles v.
United States,
138 S. Ct. 1897, 1904 (2018) (quotation omitted).
Only when those conditions are met may we exercise our discre-
tion “to correct the forfeited error if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id.
at 1905 (quotation omitted). Hakim has failed to show any “clear
or obvious” violation of his right to counsel, so we have no discre-
tion to correct the error he asserts.
Id. at 1904 (quotation omitted).
A.
When considering whether any plain error occurred here, a
crucial question is what our precedents say about how precisely a
defendant must know the range of potential punishments to waive
his right to counsel. The Supreme Court supplied the background
principle in a plurality opinion issued nearly 75 years ago: a waiver
of the right to counsel “must be made with an apprehension of the
nature of the charges, the statutory offenses included within them,
the range of allowable punishments thereunder, possible defenses
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19-11970 GRANT, J., Dissenting 7
to the charges and circumstances in mitigation thereof, and all
other facts essential to a broad understanding of the whole matter.”
Von Moltke v. Gillies,
332 U.S. 708, 724 (1948) (emphasis added).
That language does not say how precisely the defendant must un-
derstand his maximum potential punishment. But our Circuit’s
precedents in the years since show that we should not read it to
demand quite so much precision as the majority suggests.
Ever since the Supreme Court’s 1975 decision in the “foun-
dational self-representation case,” Faretta v. California, this Circuit
has analyzed many factors to decide whether a defendant know-
ingly waived his right to counsel. Indiana v. Edwards,
554 U.S. 164,
170 (2008) (quotation omitted); see Fitzpatrick v. Wainwright,
800
F.2d 1057, 1065–67 (11th Cir. 1986); Stanley, 739 F.3d at 645–46
(listing the eight factors this Circuit considers). The defendant’s
“knowledge of the nature of the charges, possible defenses, and
penalties” is simply one of those factors. Owen, 963 F.3d at 1049.
Under our multi-factor approach, which the majority affirms, we
have never vacated a conviction solely because a defendant lacked
precise knowledge of his potential punishment.
Molignaro v. Smith—a case that our predecessor court
handed down before Faretta—indicates that a defendant must have
some awareness of his possible penalty to validly waive his right to
counsel.
408 F.2d 795 (5th Cir. 1969). That appeal involved a pris-
oner who challenged his conviction by arguing that he had not
knowingly waived his right to counsel when he pleaded guilty to
child molestation.
Id. at 797. The court found insufficient evidence
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8 GRANT, J., Dissenting 19-11970
that the prisoner “knew the magnitude of the punishment he was
accepting by deciding to waive counsel and plead guilty.”
Id. at
797–98. Considering only that line of the opinion, one might read
Molignaro to establish that defendants knowingly waive their right
to counsel only when they understand exactly what their possible
penalty is. But the facts of the case can inform our understanding
of the point the court was making. The opinion went on to explain
(with a sentiment that frankly seems shocking today) that a defend-
ant “who was not aware of the statutory penalties for child molest-
ing might well think he would not be sentenced to more than a
year or two.”
Id. at 798. According to the court, when “the actual
range extends to twenty years,” as it did under Georgia law at the
time, the defendant’s waiver of the right to counsel could not be
described as “voluntary and intelligent.”
Id. (quotations omitted).
The difference between two and twenty years is dramatic.
The court’s exemplar thus does not suggest that a defendant’s un-
derstanding of his potential penalties must be precise for a waiver
of counsel to survive; to the contrary, it leaves a lot of room for a
holistic look at the defendant’s understanding of the risks entailed
in self-representation, especially when the evidence that he signifi-
cantly misunderstood his possible penalty is not nearly as substan-
tial. Indeed, the court endorsed a comprehensive inquiry by look-
ing to the “specific circumstances” pertaining to the defendant’s un-
derstanding of his possible penalty, including his “lack of educa-
tion” and “lack of previous criminal record.”
Id. at 802. The deci-
sion even specifically stated that it did “not purport to dispose of all
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19-11970 GRANT, J., Dissenting 9
cases in which an accused has waived counsel and pleaded guilty
without being informed of the maximum penalty applicable” and
expressed “no opinion upon the requirements of waiver in less
compelling circumstances.”
Id. So limited to its facts, Molignaro
has only been cited three times by our predecessor court, and not
since 1972—three years before Faretta. See Cooper v. Griffin,
455
F.2d 1142, 1146 (5th Cir. 1972); Dulin v. Henderson,
448 F.2d 1238,
1240 (5th Cir. 1971); Goodwin v. Smith,
439 F.2d 1180, 1183 (5th
Cir. 1971). The majority’s opinion is the first to cite the case in the
Eleventh Circuit.
Later cases in this Circuit dispel any doubt about whether
Molignaro sets an exacting standard for the required knowledge.
We have since issued decisions finding waivers valid even where
the defendant lacked a complete understanding of the penalties he
faced. We held in Fitzpatrick v. Wainwright, the case that supplied
our eight-factor test after Faretta, that the defendant’s waiver was
valid where the record did “not show that he knew the possible
penalties he might receive if convicted.”
800 F.2d at 1066 n.6, 1068;
see also United States v. Cash,
47 F.3d 1083, 1088–89 (11th Cir.
1995). Similarly, in Strozier v. Newsome, the record showed that
the defendant “misunderstood the charges and the penalty,” but
we nevertheless concluded that he “knowingly and intelligently
waived his right to counsel.”
926 F.2d 1100, 1106, 1108 (11th Cir.
1991).
These three cases—Molignaro, Fitzpatrick, and Strozier—
are not in tension. But even if they were, distilling a rule that
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10 GRANT, J., Dissenting 19-11970
reconciles them—as we are obligated to do “if at all possible”—is a
simple task. See United States v. Hogan,
986 F.2d 1364, 1369 (11th
Cir. 1993). Under Molignaro, and consistent with our other deci-
sions, a waiver is valid when the defendant is aware of the serious-
ness of the charges and possible penalties, even when he does not
understand those possible penalties with absolute precision. Moli-
gnaro itself noted “the unlikelihood that a layman would be able to
anticipate the length of the sentence for the crime of which he was
accused” and emphasized how drastically the defendant’s expecta-
tions differed from the actual maximum sentence.
408 F.2d at 798,
802. In contrast, the defendants in both Fitzpatrick and Strozier
understood the seriousness of their charges and potential penalties,
though they did not know those penalties precisely. The defendant
in Fitzpatrick “understood the nature of the charges against him
and that the charges were serious felony charges.”
800 F.2d at 1066
n.6. And the defendant in Strozier was informed of “the very seri-
ous nature of the charges against him and the tremendous sen-
tences he was facing if he were convicted.”
926 F.2d at 1104 n.7
(quotation omitted). Knowledge of penalties is a matter of degree
under our factor-based approach—although precise knowledge fa-
vors validity, a waiver is not necessarily invalid when that
knowledge is lacking.
Several of our sister circuits follow approaches that align
with this one. The D.C. Circuit upheld a district court’s decision
to allow a defendant to represent himself even though the court
had misstated the defendant’s potential sentence, because he was
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19-11970 GRANT, J., Dissenting 11
still “sufficiently cognizant of the seriousness of the charges against
him to make a knowing and intelligent waiver of counsel.” United
States v. Bisong,
645 F.3d 384, 395–96 (D.C. Cir. 2011). The Second
Circuit similarly held that a right-to-counsel waiver was valid
where the district court did not mention a long potential sentence
that could result from upward departures in the Sentencing Guide-
lines—it found that the defendant had received a “realistic picture”
about “the magnitude of his decision,” and was “clearly aware of
the significant penalties he would face if convicted.” United States
v. Fore,
169 F.3d 104, 108 (2d Cir. 1999) (quotation omitted). The
Ninth Circuit requires only that the defendant “substantially un-
derstood the severity of his potential punishment under the law
and the approximate range of his penal exposure.” United States v.
Schaefer,
13 F.4th 875, 888 (9th Cir. 2021). And the Tenth Circuit
considers whether the difference between the defendant’s actual
maximum sentence and what he understands it to be is “immate-
rial.” Hamett, 961 F.3d at 1258 (quotation omitted).
In short, I would answer the question that the majority
leaves undecided by concluding that a defendant’s precise range of
potential sentences is not required knowledge. Misunderstandings
about the exact length of the potential punishment, which are all
but unavoidable given the complexity of our sentencing system,
should not doom a defendant’s choice to represent himself so long
as a complete review shows that he understood the nature and se-
riousness of the charges against him. This rule best harmonizes
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12 GRANT, J., Dissenting 19-11970
our own precedents, and is completely consistent with those of the
Supreme Court.
B.
No matter the difficulty of deciding whether any error oc-
curred here, determining whether the alleged error is “plain” is
straightforward. Under Rule 52(b), we cannot correct an unpre-
served error “unless the error is clear under current law” at the
time of our review. United States v. Olano,
507 U.S. 725, 734
(1993); see Henderson,
568 U.S. at 269. Because this case requires
us to clarify the applicable law before we can determine whether
the alleged error occurred, any error is not plain.
Even if Hakim misunderstood his maximum possible pen-
alty as one year instead of three, current law does not make clear
that this misunderstanding invalidates his waiver. A difference of
two years between an expected and actual potential sentence might
have little impact on one’s decision to proceed pro se, especially
when the charges are all misdemeanor offenses rather than felo-
nies. On the whole, Hakim appears to have understood the rela-
tive seriousness of the charges and the risk that he could be sen-
tenced to prison for a significant period of time if convicted. And
the record shows that the actual sentence Hakim received was, at
most, nine months longer than he expected.
More fundamentally, it is not “obvious or readily apparent”
on this record that Hakim did misunderstand his maximum poten-
tial sentence when he decided to represent himself. United States
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19-11970 GRANT, J., Dissenting 13
v. Young,
470 U.S. 1, 17 n.14 (1985). The majority reasons that the
magistrate judge “fell short” of an “obligation” to “inform the de-
fendant unambiguously of the penalties he faces if convicted,” but
then correctly recognizes that “giving materially incorrect infor-
mation about the defendant’s sentence” does not necessarily “ren-
der his waiver unknowing.” Maj. Op. at 23, 24 (quotation omitted).
For the sake of clarity, it bears repeating: we must consider “the
trial court’s express advice,” but “the ultimate test” is “the defend-
ant’s understanding.” Cash,
47 F.3d at 1088 (quotation omitted).
To start, the magistrate judge did not make his statements
about Hakim’s possible sentence in a vacuum. The magistrate
judge first read the criminal information to Hakim and identified
the three counts that were “all in violation” of criminal tax law. In
context, the magistrate judge described the potential one-year term
of imprisonment when explaining that the offense charged was a
misdemeanor, not a felony. The magistrate judge “never prom-
ised” Hakim “that his sentence would not exceed” one year.
United States v. Kimball,
291 F.3d 726, 732 (11th Cir. 2002). Be-
cause Hakim was told that he faced three charges, and the magis-
trate judge spoke in the singular when explaining the potential pen-
alties of the charge, Hakim very well could have understood his
maximum potential sentence.
That is especially true given the other considerations that we
must evaluate to assess Hakim’s subjective understanding—includ-
ing his age, health, and level of education. See Owen, 963 F.3d at
1049; see also Molignaro,
408 F.2d at 801–02 (considering the
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14 GRANT, J., Dissenting 19-11970
defendant’s knowledge in light of his minimal level of education
and his lack of familiarity with criminal statutes). The majority dis-
misses those factors, but they support the conclusion that Hakim
sufficiently understood his potential penalty.
And finally, putting the issue of potential punishment aside,
Hakim has not otherwise clearly shown that he misunderstood the
consequences of his choice to represent himself. He argues that he
was confounded about “the nature of the charges against him” and
that he did not even understand “whether the case was criminal or
civil.” For support, he cites his own statements during his arraign-
ment—excerpts of the dialogue that the majority rightly calls “friv-
olous and incoherent.” Maj. Op. at 5. The magistrate judge quite
reasonably expressed doubt that Hakim’s statements were sincere.
It is therefore not apparent that he actually harbored the misunder-
standings he now professes.
* * *
This case demonstrates the tension that can arise as we seek
to enforce the Sixth Amendment’s dueling rights to counsel and
self-representation. Overprotecting the former can only come at
the expense of the latter. Saleem Hakim vigorously refused ap-
pointed counsel, and the magistrate judge thoroughly warned him
of the disadvantages of going it alone. Today’s decision deprives
district courts of the benefit of our usual objection requirements
for a counseled party when balancing the Sixth Amendment’s im-
peratives. I respectfully dissent.
