United States v. Singleton ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5841
FREDERICK KEITH SINGLETON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-95-179)
Argued: November 1, 1996
Decided: February 28, 1997
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed in part and remanded by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Michael and Judge Motz joined.
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COUNSEL
ARGUED: David Benjamin Smith, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant. Robert Clifford Chesnut, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen
F. Fahey, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
During the course of his criminal trial, Frederick Singleton sought
to fire his court-appointed counsel because he was"not satisfied" with
the way his counsel was cross-examining witnesses. When the court
indicated the benefits of counsel, advising Singleton that he would be
held strictly to the rules of court, Singleton sought to have counsel
remain to assist him as a "legal adviser." After being told by the court
that it would not permit such a hybrid situation, Singleton fired his
counsel and conducted the remainder of his trial himself, consulting
with his fired attorney during breaks. The jury convicted Singleton of
16 of the 20 counts charged.
With counsel appointed to represent him on appeal, Singleton
maintains that he was denied both his Sixth Amendment right to the
assistance of counsel and his implied Sixth Amendment right to self-
representation, defined in Faretta v. California , 422 U.S. 806 (1975),
as well as a new constitutional right to have advisory counsel when
a defendant elects to represent himself. He also contends that the dis-
trict court miscalculated his criminal history for sentencing purposes.
Because we find no constitutional right to have advisory counsel dur-
ing self-representation and no error by the district court in applying
Singleton's acknowledged Sixth Amendment rights, we affirm his
conviction. We remand for resentencing, however, to permit the court
to resolve an open sentencing issue.
I
Singleton was indicted in 20 counts for a series of armed robberies
from May 1994 to January 1995 in the greater Washington, D.C.,
area. The indictment identified four separate occasions on which Sin-
gleton allegedly carjacked vehicles which he then used as get-away
cars in four separate armored truck robberies.
Following his arrest, Singleton filed an affidavit of indigency, and
the court appointed Alan H. Yamamoto as his attorney. Yamamoto
represented Singleton, without complaint, until the second day of Sin-
gleton's three-day trial.
2
Trial began on July 11, 1995, and on the first day, the government
presented 17 witnesses, including many of the victims of the carjack-
ings and the armored truck holdups. Yamamoto cross-examined 15 of
these witnesses. On the second day of trial, the government continued
with the presentation of witnesses. As Yamamoto prepared to cross-
examine the second witness, Singleton notified the court, through
Yamamoto, that he was not satisfied with Yamamoto's cross-
examination of witnesses and that he wanted to participate personally
in cross-examination. He also requested permission to participate in
closing argument. The district court denied these requests. When Sin-
gleton interjected personally, searching for a way to participate in his
representation based on his right to fire his counsel, the court ruled:
I will not let you participate in the trial. If you decide you
want to discharge Mr. Yamamoto, I will deal with that when
it occurs. I think you better think about that long and hard
before you do it. If you do it, I will take that up when it hap-
pens.
After Singleton consulted briefly with Yamamoto, he announced to
the court:
I would like to fire my attorney, your Honor. I am in no
way satisfied with the way he is cross-examining. I am not
satisfied with the way he has been cross-examining wit-
nesses.
Agreeing to let Singleton fire his attorney but cautioning him about
the consequences and repeating his earlier ruling against a hybrid par-
ticipation in the trial, the court stated:
All right, I will allow you to discharge him.
Before you make that final decision, I want you to know
that there are certain things that he can assist you, through
the calling of witnesses, as with regard to them taking the
witness stand, and you are going to be held to the same rules
as he would be held. I am not going to let you use this as
an opportunity to argue with witnesses.
3
* * *
You will either take it alone or you are not going to take
it alone. I will not allow some hybrid.
Arguing for an advisory role for his court-appointed attorney, Single-
ton then initiated the following dialogue:
Singleton: Could he assist me?
The Court: I will not permit him to assist you. If you want
to go ahead alone, you can do it. It will not be half and half.
Singleton: Okay. Your Honor, what I am asking, he said
he would let me use what witnesses he would call. He said
he would assist me in that.
The Court: I will not let him assist you at all. You wanted
an attorney. He has been appointed for you, is here, and he
will represent you. I will not let you take part of it and him
take part of it. You would be allowed a time to get him to
advise you. You make that choice. It is up to you.
* * *
Singleton: I want to have him as a legal adviser.
The Court: He will be your attorney or you will represent
yourself. You make up your mind.
Singleton: May I have a minute to talk to him again?
The Court: Yes, take your time.
Following a private conversation between Singleton and Yamamoto,
Singleton announced his decision to fire Yamamoto. The court
excused Yamamoto as Singleton's court-appointed attorney and
immediately resumed the trial, denying Singleton's request for a
recess to familiarize himself with Yamamoto's files.
4
Singleton then proceeded to cross-examine the witness who had
remained on the witness stand during the entire side bar discussion
about Singleton's self-representation. Singleton thereafter cross-
examined 15 government witnesses and put on 11 witnesses to testify
on his own behalf. He also presented his own closing argument.
Throughout the trial, Yamamoto voluntarily remained in the court-
room, and Singleton spoke with him during some of the recesses
(although these conversations are not on the record).
The jury convicted Singleton of 16 counts and deadlocked on 4
others which the government then dismissed. At Singleton's request,
the court appointed Yamamoto to represent him during the sentencing
phase of the trial. After the court found that Singleton was a career
offender, it expressed regret that he was "really a waste of a bright tal-
ent. His performance when he was on his own at trial was fine. He
unfortunately has other problems that the court can't resolve for him."
The court sentenced Singleton to 210 months on all but the firearms
counts and a consecutive 780 months on the four firearms counts.
II
On appeal, Singleton argues first that the district court failed to
ensure that his decision to waive counsel and to represent himself was
made "knowingly and intelligently" because it failed to make a
"``searching or formal' inquiry into the defendant's understanding of
his situation and his awareness of the dangers and disadvantages of
self representation." Assuming arguendo that he effectively waived
his right to counsel, Singleton next argues that we should order a new
trial because the district court undermined his right of self-
representation by refusing his request for a recess before beginning
his representation of himself and by denying him Yamamoto's assis-
tance in an advisory role. Finally, resting on a subtle interplay of his
Sixth Amendment rights which emphasizes a right to the "assistance"
of counsel, Singleton argues for a "constitutional right to conduct
one's own defense" without having to give up his constitutional right
to have the assistance of counsel in presenting that defense. He states,
"[T]o force a defendant to completely waive his right to have the
assistance of counsel for his defense as the price for exercising his
right to represent himself plainly exacerbates the tension . . . between
the constitutional right of self-representation and the . . . right to
5
counsel." Singleton thus appears to contend that the Sixth Amend-
ment provides an implied constitutional right to advisory counsel
when a defendant chooses to represent himself.
Before addressing these questions, we find it useful to review
briefly the well-established scope of the right to counsel granted by
the Sixth Amendment and the implied right to self-representation
defined in Faretta v. California, 422 U.S. 806 (1975). The Sixth
Amendment provides in relevant part, "In all criminal prosecutions,
the accused shall enjoy the right . . . to have the assistance of counsel
for his defence." U.S. Const. amend. VI. That right is a fundamental
procedural right of persons accused of crimes. Indeed, "[o]f all the
rights that an accused person has, the right to be represented by coun-
sel is by far the most pervasive, for it affects his ability to assert any
other rights he may have." Penson v. Ohio, 488 U.S. 75, 84 (1988)
(quoting Walter V. Schaefer, Federalism and State Criminal
Procedure, 70 Harv. L. Rev. 1, 8 (1956)). Because this right is crucial
both to the individual defendant and to the integrity of our system of
justice, the Sixth Amendment requires that counsel be provided for a
defendant who cannot afford to retain private representation in any
case in which he will be incarcerated if convicted. See Scott v.
Illinois, 440 U.S. 367 (1979); see also Gideon v. Wainwright, 372
U.S. 335 (1963) (applying right to state non-capital felonies); Powell
v. Alabama, 287 U.S. 45 (1932) (applying right to capital cases). But
the Supreme Court has made clear that although courts are com-
manded to protect the right to counsel zealously, the defendant can
waive the right if the waiver is knowing, intelligent, and voluntary.
See Brady v. United States, 397 U.S. 742 (1970); Johnson v. Zerbst,
304 U.S. 458, 468 (1938).
Indeed, courts must take care not to force counsel upon a defen-
dant, because in addition to the right to the assistance of counsel, the
Sixth Amendment implicitly provides an affirmative right to self-
representation. See Faretta, 422 U.S. at 806. And that right must be
preserved even if the court believes that the defendant will benefit
from the advice of counsel. See McKaskle v. Wiggins, 465 U.S. 168
(1984). As with the right to counsel, a defendant may waive his right
to self-representation. Id. at 182. But no Supreme Court case has dis-
cussed in any detail the requirements for a waiver of the right to self-
representation. This can, perhaps, be explained by recognizing that
6
courts have assumed that the right to self-representation and the right
to representation by counsel, while independent, are essentially
inverse aspects of the Sixth Amendment and thus that assertion of one
constitutes a de facto waiver of the other. See , e.g., Faretta, 422 U.S.
at 835 ("When an accused manages his own defense, he relinquishes,
as a purely factual matter, many of the traditional benefits associated
with the right to counsel"); Tuitt v. Fair , 822 F.2d 166 (1st Cir. 1987)
(holding that the right to counsel and the right to self-representation
are mutually exclusive and thus that granting the right to proceed pro
se may be conditioned on unequivocal waiver of the right to counsel).
In order to preserve both the right to counsel and the right to self-
representation, a trial court must proceed with care in evaluating a
defendant's expressed desire to forgo the representation of counsel
and conduct his own defense.
A trial court evaluating a defendant's request to represent
himself must "traverse . . . a thin line" between improperly
allowing the defendant to proceed pro se, thereby violating
his right to counsel, and improperly having the defendant
proceed with counsel, thereby violating his right to self-
representation. A skillful defendant could manipulate this
dilemma to create reversible error.
Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1995) (en banc) (cita-
tions omitted). Of the two rights, however, the right to counsel is pre-
eminent and hence, the default position. Id. at 1028; United States v.
Gillis, 773 F.2d 549, 559 (4th Cir. 1985); Tuitt, 822 F.2d at 174
("Where the two rights are in collision, the nature of the two rights
makes it reasonable to favor the right to counsel which, if denied,
leaves the average defendant helpless").
Because of the legal preeminence of the right to representation by
counsel and the need to maintain judicial order, we have held that
while the right to counsel may be waived only expressly, knowingly,
and intelligently, "the right to self-representation can be waived by
failure timely to assert it, or by subsequent conduct giving the appear-
ance of uncertainty." Gillis, 773 F.2d at 559 (citations omitted). Con-
sequently, if a defendant proceeds to trial with counsel and asserts his
right to self-representation only after trial has begun, that right may
7
have been waived, and its exercise may be denied, limited, or condi-
tioned. Accordingly, after trial has begun with counsel, the decision
whether to allow the defendant to proceed pro se rests in the sound
discretion of the trial court.1See Bassette v. Thompson, 915 F.2d 932,
941 (4th Cir. 1990); United States v. Dunlap, 577 F.2d 867, 868 (4th
Cir. 1978) (holding that a defendant does not have an absolute right
to dismiss counsel and conduct his own defense after trial has begun
because of need "to minimize disruptions, to avoid inconvenience and
delay, to maintain continuity, and to avoid confusing the jury"); see
also United States v. Lawrence, 605 F.2d 1321 (4th Cir. 1979) (where
represented defendant first asserts right to self-representation only
after jury had been selected though not sworn, decision to allow pro
se representation rests in sound discretion of trial court); Chapman v.
United States, 553 F.2d 886, 893 (5th Cir. 1977) (right to self-
representation may be waived if not asserted before trial); Sapienza
v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976) (same); United States
v. Dougherty, 473 F.2d 1113, 1123 (D.C. Cir. 1972) (right to self-
representation "must be recognized if it is timely asserted, and accom-
panied by a valid waiver of counsel, and if it is not itself waived,
either expressly, or constructively, as by disruptive behavior during
trial").
With these principles in hand, we now proceed to decide first,
whether Singleton waived his Sixth Amendment right to counsel; sec-
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1 Even where the right to self-representation is properly and timely
invoked, additional considerations may justify certain limits. In Faretta
itself, the Supreme Court recognized that the right to self-representation
could be subjugated if the defendant engaged in obstructionist conduct.
422 U.S. at 834 n.46. More recently, this circuit has held that even if a
defendant charged with sexual abuse properly invoked his right to self-
representation, the trial court did not err in refusing to allow him person-
ally to cross-examine his alleged juvenile victims. The trial court offered
him the opportunity to compose cross examination questions for counsel
to pose. This court found that the purposes of self-representation -- to
allow a defendant to affirm his dignity and autonomy and to present what
he believes is his best possible defense -- were thus "otherwise assured"
and that, therefore, the important state interest in protecting children
from the emotional trauma of being questioned by their alleged abuser
outweighed the defendant's right to conduct cross examination person-
ally. Fields, 49 F.3d at 1034-36.
8
ond, whether Singleton's implied constitutional right to self-
representation was unconstitutionally burdened by the imposition of
conditions on its exercise; and finally, whether Singleton is constitu-
tionally entitled to the appointment of advisory counsel or some other
form of hybrid representation in connection with his self-
representation.2
III
"The determination of whether there has been an intelligent waiver
of the right to counsel must depend, in each case, upon the particular
facts and circumstances surrounding that case, including the back-
ground, experience, and conduct of the accused." Johnson, 304 U.S.
at 464. "[W]hether there is a proper waiver should be clearly deter-
mined by the trial court, and it would be fitting and appropriate for
that determination to appear upon the record." Id. at 465. In accord
with this instruction, we review the sufficiency of a waiver of the
right to counsel by evaluating the complete profile of the defendant
and the circumstances of his decision as known to the trial court at
the time.3 This determination can be made by examining the record
as a whole. See United States v. King, 582 F.2d 888, 890 (4th Cir.
1978); Townes v. United States, 371 F.2d 930, 934 (4th Cir. 1966);
Aiken v. United States, 296 F.2d 604, 607 (4th Cir. 1961).
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2 Although Singleton has demanded a right to "advisory counsel," the
role he envisioned for such counsel is not clear. From the dialogue with
the district court, it appears that he was, at various times, suggesting a
co-counsel or shared representation with such counsel, or a standby
counsel role, or a pure advisory counsel role. Because we do not believe
that the degree of participation by such advisory counsel is constitution-
ally significant, we intend no distinction in this opinion by use of "advi-
sory counsel," "standby counsel," or "hybrid representation."
3 Determination of a waiver of the right to counsel is a question of law,
Brewer v. Williams, 430 U.S. 387, 397 n.4, 403-04 (1977), and thus we
review it de novo. But see Fields, 49 F.3d at 1030-1032 (holding that
question of whether defendant's statement was clear and unequivocal
invocation of right to self-representation should be treated as finding of
fact on habeas corpus review because of trial court's superior ability to
evaluate factors such as manner in which statement was made).
9
Relying unduly on a fragment of dictum from Patterson v. Illinois,
487 U.S. 285 (1988), Singleton urges us to require that the district
court make a "searching or formal" inquiry into a defendant's under-
standing of his situation and his awareness of the dangers and disad-
vantages of self-representation.4 He argues that because the district
court did not conduct such a searching or formal inquiry, he is entitled
to a new trial.
Were such a procedural requirement to be imposed, it would partic-
ularly handicap trial judges who, as in the present case, are faced with
a request to dismiss counsel at midtrial, a point where disruptive
potential is great but the court has also had an opportunity to observe
the defendant and thus to develop a basis for determining his compe-
tency to waive his right to counsel. For this reason, we decline the
invitation to define a precise procedure or litany for this evaluation.
Instead, we prefer to follow our approach in United States v. Gallop,
838 F.2d 105 (4th Cir. 1988), where we affirmed open court explora-
tion of the defendant's background capabilities and understanding of
the dangers and disadvantages of self-representation but refused to
treat the failure to conduct a formal inquiry as per se reversible error.
We restated our agreement with the majority of circuits that "the trial
judge is merely required to determine the sufficiency of the waiver
from the record as a whole rather than from a formalistic, deliberate,
and searching inquiry." Id. at 110.
In this case, the district court was abruptly presented with Single-
ton's mid-trial request to fire counsel, made while a government wit-
ness was on the stand awaiting cross examination. During the
interchange that followed, Singleton carefully explored the parame-
ters under which the court was willing to allow him to operate if he
chose to dismiss counsel.5 While the court, at that awkward moment,
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4 In Patterson, the Court considered the conditions for a valid waiver
of the right to counsel at a post-indictment interrogation. The Court
described the inquiry made before acceptance of a waiver of the right to
counsel at trial as "more searching or formal" than that required under
the circumstances of the case before it. 487 U.S. at 298.
5 Probing how he might be entitled to advisory counsel and at the same
time to self-representation, Singleton asked the court at various times
10
did not conduct a formal inquiry, it did advise Singleton that he
should think "long and hard" before firing counsel, noting that coun-
sel would be of assistance to him. Singleton's own questions, propos-
ing subtly differing options to use counsel during his own defense,
leave no doubt that he understood that a trained attorney's specialized
knowledge would be valuable to his defense, and the court's
responses made clear that if Singleton dismissed counsel, he would
be required on his own to follow the same rules of evidence and pro-
cedure as an attorney and would not be permitted to rely on Yama-
moto or any other attorney, even in an advisory capacity.
What does not appear on the face of this interchange is direct evi-
dence of Singleton's educational background, his understanding of
the judicial process, and his appreciation of the charges against him
and the potential penalties. But a fuller exploration of the history of
this case demonstrates that Singleton also had the requisite apprecia-
tion of those factors to make an intelligent choice to proceed pro se.
Beginning with the nature of charges and the potential penalty, Sin-
gleton had earlier been adequately informed of these. He had been
arraigned not once, but twice, providing two separate occasions on
which the charges were explained to him. In fact, the second arraign-
ment was necessitated by a superseding indictment issued to add a
charge of escape after Singleton bolted from the courthouse following
his first arraignment, an indication that he appreciated the gravity of
the charges against him.
As for Singleton's appreciation of the judicial process, the district
court observed that Singleton had not only seen but also judged attor-
neys in action throughout the first day of his ongoing trial, as well as
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during the course of the dialogue: "Do I, as a defendant, have a right to
fire my attorney after a point?"; "If I were to fire him, I would or would
not be able to continue by myself?"; "[If I fired counsel], would [he] be
able to sit there and help me and advise me on the technicalities?"; "What
I was specifically ask[ing], will the court be able to, if I want to make
an objection, would I be able to object?"; "Could he assist me?"; "Okay,
are you telling me I can't hire Mr. Yamamoto, to advise me, to assist
me?"
11
at pretrial hearings, including a motion to suppress evidence.6 Single-
ton had thus observed lawyers examining witnesses, making objec-
tions, and arguing legal motions before he chose to take on these tasks
for himself.
Finally, with regard to Singleton's intelligence and education, the
district court had ample opportunity to observe Singleton at trial as
well as at pretrial hearings, including the motion to suppress. More-
over, Singleton's questions to the court in exploring his choice
regarding counsel demonstrated an active intelligence. In fact, his
eventual conduct of his defense, while undoubtedly handicapped by
his lack of legal training and experience, was respectable, prompting
the court at sentencing to lament the fall of such a"bright talent." The
fuller record before us demonstrates that Singleton was a high school
graduate who had worked successfully as an architectural draftsman
and had started a mobile car washing and detailing business.
While it would have been our preference to have seen a more thor-
ough colloquy in this case, even recognizing the minimal additional
delay it might have caused, we nevertheless are satisfied that the
record as a whole demonstrates that Singleton's decision to waive
counsel was knowing, intelligent, and voluntary.
IV
Having found that the district court did not err in accepting Single-
ton's waiver of his right to counsel, we address Singleton's contention
that the court nonetheless violated his constitutional right to self-
representation by imposing "restrictions" on the exercise of the right,
i.e., by denying Singleton's request for a recess to review trial materi-
als prepared by Yamamoto and by refusing to allow Yamamoto to
serve in an advisory role.
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6 In fact, Singleton had also been represented by counsel at one prior
state jury trial, as well as in prior plea agreements, although the record
of the proceeding here in question does not clearly indicate that the dis-
trict court was aware of this prior trial when he considered Singleton's
request to dismiss counsel.
12
In evaluating the propriety of these restrictions, we take note of the
procedural point at which Singleton's request to proceed pro se arose.
Singleton's first indication that he wished to waive counsel was not
given until the second day of his three-day trial. While he asserts that
he had an implied constitutional right to self-representation, including
a constitutional right to the assistance of advisory counsel, he omits
any discussion of his possible waiver of these rights.
As we noted above, the right to self-representation can be waived.
See McKaskle, 465 U.S. at 182; Gillis , 773 F.2d at 559. And if a
defendant first asserts his right to self-representation after trial has
begun, the right may have been waived. The decision at that point
whether to allow the defendant to proceed pro se at all or to impose
reasonable conditions on self-representation rests in the sound discre-
tion of the trial court.
In this case, because Singleton clearly did not make a timely asser-
tion of his Faretta right, the district court had discretion to limit it.
Accordingly, we must determine whether imposing conditions (1) that
Singleton would have no additional preparation time and (2) that he
would not be allowed court-appointed advisory counsel constituted an
abuse of discretion.
In considering the district court's refusal to grant a recess, we recall
that Singleton's request to proceed pro se came unexpectedly, not
only at mid-trial but at mid-testimony as a government witness
awaited cross-examination by some representative of the defense.
And a large number of additional witnesses were waiting to be called
by both the prosecution and the defense. While we would not condone
"unreasoning and arbitrary ``insistence upon expeditiousness in the
face of a justifiable request for delay,'" see Morris v. Slappy, 461 U.S.
1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589
(1964)), in this case, the district court had a legitimate concern with
trial management. It was under no obligation to allow Singleton to
proceed pro se. If Singleton were unable to accept the condition of
proceeding without recess, believing it to be too harsh, appointed
counsel was prepared to remain as his representative. Indeed, the trial
court's entire purpose in imposing this strict condition may have been
to discourage Singleton from changing courses in mid-stream and
pursuing his desire to represent himself.
13
Had Singleton asserted his Faretta right before trial, he would have
had no disadvantage in preparation time. Furthermore, if that time
were insufficient, the existing case law governing the granting of con-
tinuances might have afforded him yet more leisure to prepare his
case. See Morris, 461 U.S. at 1; cf. United States v. Mullin, 32 F.3d
891, 896-97 (4th Cir. 1994) (total breakdown in communication pre-
vented preparation of adequate defense and necessitated appointment
of new attorney). But given the fact that both jury and witnesses were
waiting expectantly, that the court was under no obligation to allow
Singleton to begin representing himself at all at mid-trial, and that
appointed counsel was prepared to try the case, we find no abuse of
discretion in the judge's choice to condition the privilege of self-
representation in this way.
By force of the same reasoning, we conclude that the district court
did not abuse its discretion by imposing the condition that Singleton
proceed without advisory counsel or some other form of hybrid repre-
sentation so long as such representation is not an independent Sixth
Amendment right. If Singleton felt too insecure or incapable of pro-
ceeding alone on his own behalf, Yamamoto remained willing and
able to proceed as Singleton's court-appointed counsel.
In short, while Singleton had a constitutional right before trial to
elect to represent himself without counsel, by proceeding to trial with
court-appointed counsel, he gave up any right he may have had to
require the court to permit him to proceed without counsel or to avoid
reasonable conditions imposed by the court on proceeding without
counsel.
V
Singleton's final and boldest argument is that the trial court
infringed an implied Sixth Amendment right by refusing to appoint
him advisory counsel to assist him in self-representation. It would
appear that he claims this right as an independent Sixth Amendment
right.
As noted previously, the Supreme Court and other courts have at
least implied that the right to representation by counsel and the right
to self-representation are mutually exclusive, and at least one circuit
14
has held this explicitly. See Faretta, 422 U.S. at 835; Tuitt, 822 F.2d
at 177. Singleton argues, however, that "a defendant who chooses to
exercise the right to represent himself is not by that very choice
stripped of his even more important right to have the assistance of
counsel in presenting his defense." To make this argument, he relies
by implication on the following language from Faretta:
[The counsel provision of the Sixth Amendment] speaks of
the "assistance" of counsel, and an assistant, however
expert, is still an assistant. The language and spirit of the
Sixth Amendment contemplate that counsel, like the other
defense tools guaranteed by the Amendment, shall be an aid
to a willing defendant -- not an organ of the State inter-
posed between an unwilling defendant and his right to
defend himself personally. To thrust counsel upon the
accused, against his considered wish, thus violates the logic
of the Amendment. In such a case, counsel is not an assis-
tant, but a master; and the right to make a defense is stripped
of the personal character upon which the Amendment
insists. It is true that when a defendant chooses to have a
lawyer manage and present his case, law and tradition may
allocate to the counsel the power to make binding decisions
of trial strategy in many areas. This allocation can only be
justified, however, by the defendant's consent, at the outset,
to accept counsel as his representative. An unwanted coun-
sel "represents" the defendant only through a tenuous and
unacceptable legal fiction. Unless the accused has acqui-
esced in such representation, the defense presented is not the
defense guaranteed him by the Constitution, for, in a very
real sense, it is not his defense.
422 U.S. at 820-21 (citations omitted).
Although a court may, in its discretion, allow attorney participation
similar to that advocated by Singleton, the Constitution does not man-
date it. See, e.g., McKaskle, 465 U.S. at 183 (recognizing that while
a court may appoint stand-by counsel, Faretta does not require it to
permit "``hybrid' representation"); United States v. Sacco, 571 F.2d
791, 793 (4th Cir. 1978) (holding that defendant need not be granted
permission to serve as co-counsel absent showing of special need,
15
even after Faretta).7 Singleton would thus have us expand the Faretta
right. But Faretta itself forecloses the proposal.
The Faretta Court clearly contemplated that the right to self-
representation cannot be exercised without first eliciting a valid
waiver of the right to counsel from the defendant. See 422 U.S. at
835. Furthermore, the Court explicitly stated that"a defendant who
elects to represent himself cannot thereafter complain that the quality
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7 The cases reiterating the principle that courts are not required to allow
defendants to split the responsibilities of representation with an attorney
are myriad. See, e.g., United States v. Tarantino, 846 F.2d 1384, 1420
(D.C. Cir. 1988) ("[Defendant] seemed to desire some sort of hybrid
form of representation, whereby both he and his appointed counsel
would be permitted to examine witnesses, make objections, and argue
motions. While the district court would have been within its discretion
in permitting this practice, [defendant] did not have a constitutional right
under the Sixth Amendment to combine self-representation with repre-
sentation by counsel."); United States v. Oakey, 853 F.2d 551, 553 (7th
Cir. 1988); United States v. Romano, 849 F.2d 812, 816 (3d Cir. 1988)
(dictum); see also United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir.
1989) ("The decision to grant or deny ``hybrid representation' lies solely
within the discretion of the trial court."); United States v. Mosely, 810
F.2d 93, 97-98 (6th Cir. 1987) ("[T]he question whether to allow a defen-
dant to participate in his own defense along with counsel in ``hybrid rep-
resentation' is a matter committed to the sound discretion of the trial
court."); United States v. LaChance, 817 F.2d 1491, 1498 (11th Cir.
1987) ("It is the law of this circuit that the right to counsel and the right
to proceed pro se exist in the alternative and the decision to permit a
defendant to proceed in a hybrid fashion rests in the sound discretion of
the trial court."); United States v. Norris , 780 F.2d 1207, 1211 (5th Cir.
1986) ("[A] defendant does not have the right to a hybrid representation,
in which he conducts a portion of the trial and counsel conducts the bal-
ance."); United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981)
("A criminal defendant does not have an absolute right to both self-
representation and the assistance of counsel."). In general, however,
these cases lack substantial reasoning, relying instead on the statement
in McKaskle that there is no constitutional requirement for a court "to
permit ``hybrid' representation of the type . . . actually allowed," which
in that case consisted of both defendant and attorneys making arguments
before the court and both defendant and attorneys participating in exami-
nation of witnesses. 465 U.S. at 183.
16
of his own defense amounted to a denial of ``effective assistance of
counsel,'" id. at 835 n.46, even though a long line of cases has clearly
established that the right to representation by counsel means the right
to effective assistance of counsel. By implication, at least, this indi-
cates a waiver of the right to "effective assistance" by assertion of the
right to self-representation.
Singleton's position would negate both of these conclusions. He
would argue that to proceed pro se, a defendant would need only to
assert his desire to participate in the presentation of his case, but need
not be forced to give up his right to "assistance" from an attorney.
But, if the right were a constitutional one, the defendant would have
a right to make certain that any assistance of counsel that he received
was effective -- even if the assistance were merely advisory. To insti-
tute such a regime, however, would redefine the role of counsel and
would put courts in a nearly impossible position for determining what
constitutes effective advice. A defendant could always argue that the
attorney failed to advise him of everything that might improve his
chances of winning or that the advice he received was unsound. The
Constitution does not require such a manipulable and unwise arrange-
ment.
The due process values which the Sixth Amendment protects pro-
vide additional support for the conclusion that the Constitution does
not require a continuum of representational rights. In countless cases
involving various aspects of the right to representation by counsel --
appointment for trial, effective assistance, appointment for first appeal
as of right -- the Supreme Court has emphasized the crucial role of
defense counsel in maintaining the integrity of our judicial process.8
_________________________________________________________________
8 See, e.g., Gideon v. Wainwright, 372 U.S. 335, 344 (1963) ("The right
of one charged with crime to counsel may not be deemed fundamental
and essential to fair trials in some countries, but it is in ours. From the
very beginning, our state and national constitutions and laws have laid
great emphasis on procedural and substantive safeguards designed to
assure fair trials before impartial tribunals in which every defendant
stands equal before the law."); Powell v. Alabama, 287 U.S. 45, 69
(1932) ("If in any case, civil or criminal, a state or federal court were
arbitrarily to refuse to hear a party by counsel, employed by and appear-
ing for him, it reasonably may not be doubted that such a refusal would
17
The provision of competent counsel for the defense not only improves
the chances that the truth will be discerned and thus that individual
verdicts will be correct, it also ensures that the mighty prosecutorial
power of the state is justly exercised. Thus, representation by counsel
does not merely tend to ensure justice for the individual criminal
defendant, it marks the process as fair and legitimate, sustaining pub-
lic confidence in the system and in the rule of law. In this sense, the
Sixth Amendment right to counsel serves important public purposes.
By contrast, the right to self-representation identified in Faretta is
concerned primarily with individual rights. Although, as the Supreme
Court's many decisions regarding the right to counsel indicate, a pro
se defendant most likely increases his risk of an unfavorable outcome,
self-representation champions individual freedom of choice. See
Faretta, 422 U.S. at 820. "The right to appear pro se exists to affirm
the dignity and autonomy of the accused and to allow the presentation
of what may, at least occasionally, be the accused's best possible
defense." McKaskle, 465 U.S. at 176-77.
Because the right to counsel serves both individual and collective
good, it is appropriate to ascribe it a constitutional primacy which the
more individualistic right of self-representation does not command.
While respecting the right to self-representation requires the sacrifice
of the systemic benefit of using trained defense lawyers as an addi-
tional guarantee of judicial fairness and legitimacy, the Sixth Amend-
ment does not require that the defendant be permitted to use counsel
as an instrument to distort the system. Yet, this is the door which Sin-
gleton's request would require us to open.
_________________________________________________________________
be a denial of a hearing, and, therefore, of due process in the constitu-
tional sense."); Douglas v. California, 372 U.S. 353 (1963) (holding that
Fourteenth Amendment requires appointment of counsel on first appeal
as of right); Anders v. California, 386 U.S. 738 (1967) (same); Penson
v. Ohio, 488 U.S. 75, 84 (1988) ("The paramount importance of vigorous
representation follows from the nature of our adversarial system of jus-
tice. This system is premised on the well-tested principle that truth -- as
well as fairness -- is ``best discovered by powerful statements on both
sides of the question'").
18
We can foresee irreconcilable differences arising from the varying
obligations of lawyer and defendant if the defendant were to have a
constitutional right to have counsel appointed for any role he sees fit.
As an officer of the court, the lawyer has obligations, including the
duty of disclosure, the duty to ask only appropriate questions, and the
duty not to suborn perjury, which have not been considered person-
ally binding on the defendant. In addition, the lawyer's duty of
attorney-client confidentiality could be seriously compromised by a
system in which the defendant selectively employs his attorney while
making his own defense. And in a case in which these conflicts or
mere differences of strategy bubbled to the surface before the jury, the
last hope of properly presenting the relevant facts to the trier of fact
could quickly be obscured by the side show of internecine strife
between the defendant and his counsel.
As the Court noted in McKaskle, "A defendant does not have a
constitutional right to choreograph special appearances by counsel."
465 U.S. at 183. In this case, Singleton had the opportunity to proceed
through the representation of competent counsel, at no cost to himself.
He was also granted the opportunity to waive that right and to proceed
pro se. But the district court was under no constitutional obligation
to provide him any intermediate accommodation.9
Challenging the logic and the limits of the district court's ruling
which denied him appointed counsel if he exercised his Faretta right
to self-representation, Singleton offered "to hire" advisory counsel.
During his dialogue with the court, he asked, "Are you telling me I
can't hire Mr. Yamamoto to advise me, to assist me?" When the court
asked whether Singleton was going to hire him, Singleton responded
affirmatively, apparently seeking to persuade the court to allow him
to use appointed counsel as he pleased. The court, surely recognizing
that Singleton had not "hired" counsel, advised Singleton of his con-
stitutional right to have an attorney, who will"run the case," and his
freedom to waive that right and represent himself. The court summa-
_________________________________________________________________
9 We do not mean to suggest that a district court should hesitate to
appoint standby counsel when the court in its discretion believes it
appropriate. See Faretta, 422 U.S. at 834 n.46 (noting that a trial judge
"may -- even over objection by the accused-- appoint a ``standby' coun-
sel to aid the accused if and when the accused requests help . . .").
19
rized, "He will be your attorney or you will represent yourself. You
make up your mind." The court properly defined the limits of Single-
ton's constitutional rights and, we believe, properly exercised its dis-
cretion over the courtroom.
Singleton, apparently seeking to avoid the choice of alternatives
provided by the Sixth Amendment, was exploring his range of options
through the use of retained counsel to argue for his proposed hybrid
arrangement. But the court was not willing to consider hypothetical
questions. Singleton had already filed an affidavit swearing to his
indigence in order to obtain Yamamoto's assistance as appointed
counsel, and he provided no evidence that he had"hired" Yamamoto
or anyone else.
Singleton argues now that the district court erred in refusing to
consider his hybrid proposal under a retained counsel arrangement.
We need not resolve whether Singleton's dialogue before the district
court was merely argumentative because we believe the court acted
well within its broad discretion in denying, absent a constitutional
requirement, an arrangement under which retained counsel would
play a supportive role to a pro se defendant during trial. A trial judge
has broad supervisory power over his courtroom and may within that
discretion insist that a trial before him, if orchestrated or guided by
an attorney, be presented in accordance with the ethical, professional,
and prudential rules of trial conduct. And in order to be so satisfied,
the judge has discretion to insist that in the courtroom counsel, not the
client, take over completely and act as the spokesperson of the
defense's case. Thus, the district court, having properly recognized no
constitutional right to have advisory counsel support Singleton in the
courtroom during trial, had discretion, should Singleton have retained
counsel, to insist that Singleton's case be presented in court either by
his attorney or by himself, but not by a combination of the two.10
_________________________________________________________________
10 Even though we do not address whether a defendant who validly
asserted his Faretta right could hire an attorney to serve as a legal expert
consultant, in a nonparticipatory role, we do note that litigants with
financial resources may hire any number of experts. Moreover, various
state and federal statutes provide methods for indigent defendants to
secure testimonial experts in a variety of fields. But the circumstances
under which the Constitution requires provision of such experts remain
20
In summary, we are satisfied that in the case before us Singleton
knowingly and intelligently waived his Sixth Amendment right to
counsel and that, in light of Singleton's untimely assertion of his right
to proceed pro se, the district court did not abuse its discretion in con-
ditioning its acceptance of Singleton's request in a way designed to
minimize disruption to the ongoing trial. In reaching these conclu-
sions, we reject Singleton's contention that the Constitution requires
that he be provided with a hybrid type of representation.
VI
Singleton also appeals the calculation of his prior criminal history
under U.S.S.G. § 4A1.2 for sentencing purposes.
In calculating Singleton's criminal history, the district court found
that Singleton's two prior state convictions for cocaine distribution
were separate sentences and were not "related" as defined by U.S.S.G.
§ 4A1.2. In arguing that his prior convictions were related and, there-
fore, should be treated as one sentence for purposes of computing
prior criminal history, Singleton introduced evidence to support a
finding that his two prior convictions were part of a single common
scheme or plan as provided in application note 3 for U.S.S.G.
§ 4A1.2. That note states that where prior offenses were not separated
_________________________________________________________________
few. See Ake v. Oklahoma, 470 U.S. 68 (1985) (once defendant demon-
strates that sanity is likely to be significant issue at trial, due process
requires availability of psychiatrist to assist in preparation and presenta-
tion of his defense; however that right does not guarantee the psychiatrist
of defendant's choice); Williams v. Martin, 618 F.2d 1021 (4th Cir.
1980) (where a substantial question regarding the cause of death required
expert testimony to explain, state court's refusal to furnish pathologist to
defendant charged with murder violated equal protection). Furthermore,
those cases which have found a constitutional right to expert witnesses
have involved cases in which the expert assistance was otherwise
unavailable to the defendant. In the case of legal expertise, however, the
Sixth Amendment right to representation by counsel makes legal exper-
tise available to the defendant. And just as Ake did not guarantee the
defendant the expert of his choice, the Sixth Amendment does not abso-
lutely guarantee an indigent defendant his counsel of choice. See United
States v. Gallop, 838 F.2d 105 (4th Cir. 1988).
21
by an intervening arrest, "prior sentences are considered related if
they resulted from offenses that (1) occurred on the same occasion,
(2) were part of a single common scheme or plan , or (3) were consoli-
dated for trial or sentencing." U.S.S.G. § 4A1.2 application note 3
(emphasis added). Singleton does not dispute that his prior sentences
occurred on different occasions and were not consolidated for trial.
He argues, rather, that the district court appeared to assume that the
convictions which met neither of these criteria could not constitute a
common scheme or plan.
Our cases clearly establish that "common scheme or plan" is a sep-
arate basis for finding prior sentences to be related. See, e.g., United
States v. Breckenridge, 93 F.3d 132, 138 (4th Cir. 1996); United
States v. Fonville, 5 F.3d 781, 784-85 (4th Cir. 1993); United States
v. Rivers, 929 F.2d 136, 139-41 (4th Cir. 1991). Because the district
court did not make a separate inquiry as to whether the prior cocaine
offenses constituted a common scheme or plan, we remand this case
to the district court to enable it to evaluate this factor under the stan-
dards we have established in our cases.
CONVICTION AFFIRMED;
REMANDED FOR RESENTENCING
22