United States v. Gerritsen ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 06-50552
JACK GERRITSEN, aka Jack D.C. No.
Cerritsen; Jack Geritsen; Jack  CR-05-00466-
Gerrioten; Jack Gerristen; Jack RGK-1
Gerriten; Jack Gerritens; Jack
OPINION
Cerritnes; Jack Gerritson; Pancho
Villa,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
January 13, 2009—Pasadena, California
Filed July 10, 2009
Before: Stephen S. Trott, Andrew J. Kleinfeld, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
8541
8544 UNITED STATES v. GERRITSEN
COUNSEL
Daniel B. Levin, Assistant United States Attorney, Los Ange-
les, California, for the plaintiff-appellee.
Elizabeth A. Newman, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
UNITED STATES v. GERRITSEN 8545
OPINION
IKUTA, Circuit Judge:
Jack Gerritsen was convicted after representing himself in
a federal criminal trial. He argues on appeal that he did not
knowingly and intelligently waive his right to counsel
because, at the time of the waiver, he was not aware of the
maximum penalties he faced and was not informed of the dan-
gers and disadvantages of self-representation. We hold that
Gerritsen waived his right to counsel knowingly and intelli-
gently, and we affirm his conviction.
I
Gerritsen is an amateur-radio enthusiast with a history of
transmitting illegal radio broadcasts. In 2000, Gerritsen was
convicted in a California court for interfering with police
radio communications. He spent a year in state prison for this
offense. Following his release, Gerritsen applied for an
amateur-radio license from the Federal Communications
Commission (FCC). The FCC initially granted the license, but
later revoked it upon learning of Gerritsen’s prior state con-
viction. In addition to revoking his license, the FCC sent Ger-
ritsen a warning letter advising him to discontinue his radio
transmissions and informing him of “severe” criminal penal-
ties if he failed to do so.
But Gerritsen continued to transmit. He proceeded to com-
mit a variety of offenses, including broadcasting over a police
frequency, interfering with a Coast Guard search and rescue
operation, transmitting over a line the Red Cross was using to
evacuate a town downstream of a cracked dam, and interfer-
ing with a Homeland Security disaster preparedness exercise
being conducted over a military radio system.
On May 17, 2005, Gerritsen was charged in a six-count
indictment with: (1) one count of malicious interference with
8546 UNITED STATES v. GERRITSEN
a military radio system under 18 U.S.C. § 1362 (providing a
maximum sentence of ten years); (2) two counts of malicious
interference with a licensed or authorized radio communica-
tion under 47 U.S.C. § 333; and (3) three counts of transmit-
ting without a license under 47 U.S.C. § 301. (Both § 333 and
§ 301 are made punishable by 47 U.S.C. § 501, which pro-
vides a maximum sentence of one year if the defendant has
not previously been convicted under the Communications Act
of 1934, 48 Stat. 1064, and two years if he has been.)
On July 7, 2005, Gerritsen attended a status conference and
learned that the district court could not accommodate his
desire for an early trial date. When the district judge indicated
that the trial would likely be rescheduled from that week to
early November, Gerritsen’s court-appointed counsel told the
court, “I believe [Gerritsen’s] decision is that if that’s the only
date that’s available then he would ask for a shorter date and
ask to represent himself.” The district judge responded: “He
always has the right to represent himself. It’s like asking
somebody to do their own brain surgery but you have a right
to do it. I always advise against it. It’s absolutely your right[,]
if you wish to relieve counsel and represent yourself you may
do so.” After Gerritsen conferred with his counsel he again
expressed his desire to represent himself. The district judge
responded:
You understand that you have a right to have an
attorney and the court has provided one for you and
would continue to provide one for you.
If you wish to waive and give up that right and
you feel comfortable representing yourself that’s
fine. You have got that right.
I’ve got to advise you and I’m sure you under-
stand what I’m about to say, it’s very dangerous and
normally very foolish to represent yourself because
there’s a lot of legal issues that come up. The court
UNITED STATES v. GERRITSEN 8547
cannot help you at all. I treat you just like another
attorney. I would have to be impartial on that.
There may be a lot of things that you may or may
not realize or a lot of pitfalls that you might . . . be
getting into trouble on. And it might affect the deci-
sion on this case, which could be adverse to you, you
understand?
Gerritsen replied, “I do, Your Honor.”
The district judge then asked the prosecutor to state what
the maximum penalty would be. The government correctly
listed each charge against Gerritsen but incorrectly stated that
the total maximum penalty was 22 years of imprisonment.
After this recitation, the district judge addressed Gerritsen:
“So I want to make sure . . . before you make that final deci-
sion you understand the maximum possible punishment, in
other words, you’re risking or playing with 22 years of your
life.” When the district judge asked Gerritsen if he understood
that, Gerritsen responded, “I understand, Your Honor.”
The district judge again warned Gerritsen against represent-
ing himself: “I would have to treat you like any other attor-
ney. I can’t help you. I can’t ask questions for you or
participate in the case at all. You would be on your own.” The
district judge then repeated: “If you really want to do that
with the understanding you are looking at 22 years possible
maximum punishment on this and you’re comfortable doing
that, it’s your right.”
In response to the court’s admonitions, Gerritsen
responded, “Your Honor, I do have some experience. I would
like to proceed pro se.” Gerritsen had, in fact, represented
himself in at least nine state criminal cases, including six jury
trials that resulted in convictions.
Following yet another reaffirmation of Gerritsen’s desire to
proceed pro se, the court asked the prosecutor to “state the
8548 UNITED STATES v. GERRITSEN
elements of the charges and the nature of the charges that are
pending so that [Gerritsen] is put on notice.” In response, the
prosecutor recited the elements the government had to prove
for each of the three statutes charged in the indictment. The
district judge asked whether Gerritsen understood the ele-
ments and charges:
THE COURT: Okay. Do you understand those ele-
ments and charges in this case?
THE DEFENDANT: Yes.
THE COURT: If you have questions ask them now.
THE DEFENDANT: I understand Your Honor. I
read the Indictment.
THE COURT: You’re satisfied you understand what
the charges are and what the elements of the charges
are.
THE DEFENDANT: Yes, I do.
The district judge followed by asking Gerritsen if he wanted
more time to speak with his attorney. Even then, Gerritsen
indicated that he “want[ed] to proceed.” Once again, the dis-
trict judge asked, “You wish to waive and give up your right
to have an attorney?” Gerritsen replied, “Yes, Your Honor.”
The district judge concluded by appointing Gerritsen’s former
counsel as standby counsel (who later withdrew, citing ethical
objections). In doing so, the judge told Gerritsen that his for-
mer counsel could not act as advisory counsel. A final time,
the district judge asked if Gerritsen wished to represent him-
self, and once again Gerritsen expressly replied that he did.
The district judge then allowed Gerritsen to proceed pro se.
On October 21, 2005, three and a half months later and six
weeks before trial, the government filed a first superseding
UNITED STATES v. GERRITSEN 8549
indictment, adding an allegation of willfulness to each of the
three counts of violating 47 U.S.C. §§ 301, 501. Gerritsen
appeared before a magistrate judge for his post-indictment
arraignment. At the beginning of the proceeding, the magis-
trate judge asked, “Mr. Gerritsen, do you still intend to repre-
sent yourself?” Gerritsen replied, “Yes, Your Honor.”
Gerritsen then entered a plea of not guilty. Following the plea,
the government asked the court for permission to “go over the
nature of the charges and the maximum penalty.” After
describing the elements of each charge, the government cor-
rectly explained the maximum statutory penalty that Gerritsen
could face:
With respect to the possible penalties, your Honor,
the statutory maximum sentence that the Court can
impose for violation of [18 U.S.C. § 1362] is ten
years imprisonment, a three-year period of Super-
vised Release, and a fine of $250,000 and a manda-
tory Special Assessment of $100. The statutory
maximum sentence that the Court can impose under
[47 U.S.C. § 501] on each of the remaining counts of
the Indictment is one year in prison or two years if
the Defendant has previously been convicted of an
offense under Section 501, a one-year period of
Supervised Release, a 10,000-dollar fine and a 25-
dollar Special Assessment. Therefore, the total maxi-
mum sentence that the Court can impose is 20 years
imprisonment, a three-year period of Supervised
Release, a 300,000-dollar fine and a 225-dollar Spe-
cial Assessment.
This was the first time Gerritsen had been told the correct
statutory maximum: 20 years, not 22. The prosecutor noted
(and the magistrate judge confirmed) that “the Court has
already asked the Defendant if he still intends to represent
himself.” Gerritsen made no further comment regarding his
waiver of the right to counsel, and he continued to act as his
own representative for the remainder of the hearing.
8550 UNITED STATES v. GERRITSEN
Gerritsen represented himself at trial and was convicted. He
was represented by counsel at sentencing. His Guidelines
range was 33-41 months; the district court sentenced him to
84 months in prison, followed by three years of supervised
release.
II
On appeal, Gerritsen does not challenge his sentence.
Instead, he argues that he did not knowingly and intelligently
waive his right to counsel. Specifically, Gerritsen argues that
his waiver of the right to counsel was not knowing and intelli-
gent because, at the time he elected to proceed pro se, he had
not been adequately informed of either: (1) the possible penal-
ties he faced or (2) the dangers and disadvantages of self-
representation. See United States v. Balough, 820 F.2d 1485,
1487 (9th Cir. 1987). Because his waiver was inadequate,
Gerritsen argues, he was convicted in violation of the Sixth
Amendment, and we must reverse his conviction and remand
for a new trial. See United States v. Forrester, 512 F.3d 500,
508-09 (9th Cir. 2008, as amended). We review the validity
of a waiver of the right to counsel de novo. Id. at 506. “[T]he
burden of establishing the legality of the waiver is on the gov-
ernment.” Id.A
[1] The Sixth Amendment states that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend.
VI. The Supreme Court has interpreted the Sixth Amendment
as guaranteeing “that a person brought to trial in any state or
federal court must be afforded the right to the assistance of
counsel before he can be validly convicted and punished by
imprisonment.” Faretta v. California, 422 U.S. 806, 807
(1975). But the Sixth Amendment also guarantees a criminal
defendant the constitutional “right to proceed without counsel
when he voluntarily and intelligently elects to do so.” Id. Spe-
UNITED STATES v. GERRITSEN 8551
cifically, the Constitution does not allow the government “[t]o
thrust counsel upon the accused, against his considered wish,”
id. at 820, in contravention of the “nearly universal convic-
tion, on the part of our people as well as our courts, that forc-
ing a lawyer upon an unwilling defendant is contrary to his
basic right to defend himself if he truly wants to do so,” id.
at 817.
A defendant therefore has two correlative and mutually
exclusive Sixth Amendment rights: the right to have counsel,
on one hand, and the right to refuse counsel and represent
himself, on the other. See United States v. Harris, 683 F.2d
322, 324 (9th Cir. 1982) (“[T]here is a narrow path to be care-
fully treaded between the Faretta right to refuse the assistance
of counsel, and the assurance that the defendant’s refusal of
such services is made with full awareness of the risks of doing
so.”).
[2] Because a defendant who exercises the right to self-
representation foregoes the benefits of exercising the right to
counsel, “the accused must ‘knowingly and intelligently’
forego those relinquished benefits.” Faretta, 422 U.S. at 835.
When a defendant elects to waive the right to be represented
by trial counsel, “[w]arnings of the pitfalls of proceeding to
trial without counsel . . . must be rigorously conveyed.” Iowa
v. Tovar, 541 U.S. 77, 89 (2004) (internal quotation marks
and alterations omitted). “Although a defendant need not him-
self have the skill and experience of a lawyer in order compe-
tently and intelligently to choose self-representation, he
should be made aware of the dangers and disadvantages of
self-representation, so that the record will establish that he
knows what he is doing and his choice is made with eyes
open.” Faretta, 422 U.S. at 835 (internal quotation marks
omitted). The defendant must be aware of “the nature of the
charges and the possible penalties.” Harris, 683 F.2d at 324;
accord Balough, 820 F.2d at 1487. He must also understand
his “constitutional right to have a lawyer perform certain core
functions,” and “the possible consequences of mishandling
8552 UNITED STATES v. GERRITSEN
these core functions and the lawyer’s superior ability to han-
dle them.” United States v. Mohawk, 20 F.3d 1480, 1484 (9th
Cir. 1994) (internal quotation marks and alterations omitted).
The Supreme Court has expressly declined to “prescribe[ ]
any formula or script to be read to a defendant who states that
he elects to proceed without counsel.” Tovar, 541 U.S. at 88;
see also United States v. Erskine, 355 F.3d 1161, 1168 (9th
Cir. 2004) (“[W]e have never required district courts to recite
a particular script when making their inquiry . . . .”). Rather,
“[t]he information a defendant must possess in order to make
an intelligent election . . . will depend on a range of case-
specific factors, including the defendant’s education or
sophistication, the complex or easily grasped nature of the
charge, and the stage of the proceeding.” Tovar, 541 U.S. at
88. Even if the defendant “lacked a full and complete appreci-
ation of all of the consequences flowing from his waiver, it
does not defeat the State’s showing that the information it
provided to him satisfied the constitutional minimum.” Id. at
92 (internal quotation marks omitted). The “information a
defendant must have to waive counsel intelligently will
depend, in each case, upon the particular facts and circum-
stances surrounding that case.” Id. (internal quotation marks
omitted).
[3] Accordingly, although it is “only the rare case in which
an adequate waiver will be found on the record in the absence
of a specific inquiry by the trial judge,” the failure of the dis-
trict court to engage in a colloquy with the defendant cannot
itself be reversible error. Balough, 820 F.2d at 1488 (quoting
United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978)
(alteration omitted)). We have explained that a defendant’s
waiver must be evaluated in light of the record as a whole:
A waiver of counsel cannot be knowing and intelli-
gent unless the accused appreciates the possible con-
sequences of mishandling the[ ] core functions [of
the trial lawyer] and the lawyer’s superior ability to
UNITED STATES v. GERRITSEN 8553
perform them. Our task is to determine from the
record whether the accused understood these risks
when he elected to represent himself. We prefer trial
courts to simplify our review by explaining the risks
of self-representation to the accused. However,
because the test concerns what the accused under-
stood rather than what the court said or understood,
explanations are not required.
United States v. Kimmel, 672 F.2d 720, 721-22 (9th Cir.
1982); see also Balough, 820 F.2d at 1488 (citing cases).
When the district court has not made a waiver inquiry, “we
must consult the particular facts and circumstances surround-
ing that case, including the background, experience and con-
duct of the accused” to determine whether the waiver was
knowing and intelligent. Kimmel, 672 F.2d at 722 (internal
quotation marks omitted); accord Balough, 820 F.2d at 1488.
Our precedents thus apply the Supreme Court’s instruction
that our fundamental task is to determine whether a defendant
who invokes his right under Faretta “knows what he is doing
and his choice is made with eyes open.” Faretta, 422 U.S. at
835 (internal quotation marks omitted). Our “focus should be
on what the defendant understood, rather than on what the
court said or understood.” United States v. Lopez-Osuna, 232
F.3d 657, 664-65 (9th Cir. 2000).
Once the defendant has validly waived the right to counsel,
“although he may conduct his own defense ultimately to his
own detriment, his choice must be honored out of ‘that
respect for the individual which is the lifeblood of the law.’ ”
Faretta, 422 U.S. at 834 (quoting Illinois v. Allen, 397 U.S.
337, 350-51 (1970) (Brennan, J., concurring)). The Supreme
Court has stated that, even if “the right of self-representation
is a right that when exercised usually increases the likelihood
of a trial outcome unfavorable to the defendant,” McKaskle v.
Wiggins, 465 U.S. 168, 177 n.8 (1984), it merits the same vig-
ilant protection as other constitutional rights. “When the
administration of the criminal law is hedged about as it is by
8554 UNITED STATES v. GERRITSEN
the Constitutional safeguards for the protection of an accused,
to deny him in the exercise of his free choice the right to dis-
pense with some of these safeguards is to imprison a man in
his privileges and call it the Constitution.” Faretta, 422 U.S.
at 815 (quoting Adams v. United States ex rel. McCann, 317
U.S. 269, 280 (1942) (alterations omitted)).
Because the right to self-representation protects the “dig-
nity and autonomy of the accused,” Wiggins, 465 U.S. at 177,
we cannot ignore or diminish the importance of this right
merely because the defendant’s efforts at trial were unsuc-
cessful. Nor may we second-guess, after the fact, whether the
defendant would have been better served by counsel. The
Supreme Court has noted that the right of self-representation
allows “the presentation of what may, at least occasionally, be
the accused’s best possible defense.” Id. Most recently, in
declining to overrule Faretta, the Court cited “recent empiri-
cal research” finding that pro se state felony defendants “ap-
pear to have achieved higher felony acquittal rates than their
represented counterparts.” Indiana v. Edwards, 128 S. Ct.
2379, 2388 (2008) (internal quotation marks omitted). In con-
sidering whether Gerritsen has effectively waived his right to
counsel, we must avoid the tendency of hindsight to diminish
the importance of Gerritsen’s corresponding right to self-
representation.
B
Applying these principles to Gerritsen’s claims, we first
consider his argument that his waiver was not knowing and
intelligent because he was not accurately informed of the pos-
sible penalties at the time he elected to represent himself. As
noted above, the prosecutor originally informed Gerritsen at
a status conference that he faced a maximum penalty of 22
years. At the post-indictment arraignment, the prosecutor
informed Gerritsen that he faced a maximum sentence of 20
years.
UNITED STATES v. GERRITSEN 8555
Gerritsen now argues that the maximum penalty he faced
was 15 years, not 20 or 22 years. Gerritsen was indicted for
five counts of violating § 501 (three § 301 violations and two
§ 333 violations). Section 501 increases the maximum prison
sentence for willful and knowing violations of 47 U.S.C.
§§ 301 and 333 from one year to two years for “any person,
having been once convicted of an offense punishable under
this section, who is subsequently convicted of violating any
provision of this chapter punishable under this section.” 47
U.S.C. § 501 (emphasis added). Gerritsen argues that he
lacked a qualifying prior conviction and therefore faced a
maximum of five years’ imprisonment on the five § 501
counts, for a total maximum sentence of 15 years.
[4] We disagree that the prosecutor erred by including the
potential five-year enhancement in calculating the maximum
penalty to which Gerritsen was exposed. A statutory enhance-
ment for a prior conviction is not an element of the crime. It
need not be alleged in the indictment and proven to a jury, but
is determined by the court after the defendant has been con-
victed. See United States v. Fresnares-Torres, 235 F.3d 481,
482 (9th Cir. 2000); see also Almendarez-Torres, 523 U.S.
224, 247 (1998). Before trial, neither the prosecutor nor the
court can authoritatively determine whether sentencing
enhancements will affect the sentencing range; therefore, the
enhancements must be considered potentially applicable to
the defendant. In the analogous context of a Rule 11 plea col-
loquy, in which the district court must ensure that the defen-
dant understands “the maximum penalty provided by law”
before waiving constitutional rights, Fed R. Crim. P. 11(c),
we held that the district court did not err in informing the
defendant that the maximum penalty included possible
enhancements based on prior convictions, United States v.
Barrios-Gutierrez, 255 F.3d 1024, 1027-28 (9th Cir. 2001)
(en banc). We explained that the precise sentence cannot be
determined until the sentencing hearing, because the question
whether a sentencing enhancement for recidivism applies “de-
pends on the later confirmation of whether or not the defen-
8556 UNITED STATES v. GERRITSEN
dant has been convicted of the requisite felony.” Id. at 1027,
1028 n.3. The same reasoning applies here. Accordingly, the
prosecutor did not err in including the potential sentencing
enhancements in his calculation of the maximum possible
penalty provided by law.
[5] Second, Gerritsen argues that even if he had a qualify-
ing prior conviction, and the correct maximum penalty was 20
years, his waiver of the right to counsel was not knowing and
intelligent because he was not correctly informed of the pen-
alty until after he waived his right to counsel. We disagree.
Gerritsen waived his right to counsel in two different proceed-
ings, the July 7 status conference and the October 21 arraign-
ment. Although Gerritsen was not correctly informed of the
possible penalties at the status conference stage, he was
informed of the correct penalties at the arraignment proceed-
ing, and expressly waived his right to counsel during this pro-
ceeding.
In determining whether a waiver is knowing and intelligent,
we have explained that the question “is not, broadly, what the
record reveals about [the defendant’s] understanding of the
possible penalty throughout the different stages of the
proceedings—pre-trial, trial, and sentencing—but specifically
what the defendant understood at the particular stage of the
proceedings at which he purportedly waived his right to coun-
sel.” Erskine, 355 F.3d at 1169 (emphasis in original). In
Erskine, the defendant waived his right to counsel at the hear-
ing in which his first trial was declared a mistrial, and did not
learn of the actual potential penalties (which “quintupled the
stakes of self-representation for Erskine”) until moments
before his second trial was to commence. Id. at 1165.
[6] By contrast, Gerritsen was informed that the correct
maximum penalty was 20 years, rather than 22 years, at the
arraignment hearing, the same stage of the process at which
he waived his right to counsel, and a stage sufficiently early
to give him ample opportunity to reconsider his decision to
UNITED STATES v. GERRITSEN 8557
represent himself in light of the correct penalty information.
Under the totality of the circumstances, and focusing on what
Gerritsen understood, not what the court said or understood,
we conclude that Gerritsen’s waiver of the right to counsel
was adequate because Gerritsen understood the correct poten-
tial penalties “at the particular stage of the proceedings at
which he purportedly waived his right to counsel.” Id. at
1169.
Gerritsen contends that his waiver at the arraignment hear-
ing was not knowing and intelligent because he stated his
intent to represent himself immediately before he was
informed of the correct possible penalties, instead of immedi-
ately after. We decline to take such a hypertechnical approach
to our after-the-fact evaluation of Gerritsen’s assertion of his
constitutional rights. The record shows that Gerritsen learned
that the possible penalty was 20 years, rather than 22 years,
just minutes after he reiterated his intention to assert his right
of self-representation; he subsequently gave no indication that
this two-year error affected his decision but persisted in his
self-representation with a full appreciation of the nature of the
penalties he faced.
The Supreme Court has directed us to take a “pragmatic
approach to the waiver question,” and we are mindful of its
warning not to establish rigid requirements that must be met
before a defendant is deemed to have effectively waived
counsel. Tovar, 541 U.S. at 90, 92 (rejecting the state court’s
per se rule on waivers, and stating that the state court “over-
looked our observations that the information a defendant must
have to waive counsel intelligently will depend, in each case,
upon the particular facts and circumstances surrounding that
case” (internal quotation marks omitted)); cf. Illinois v. Gates,
462 U.S. 213, 231, 235-36 (1983) (disapproving of the “com-
plex superstructure of evidentiary and analytical rules” and
“rigid demand that specific ‘tests’ be satisfied” for determin-
ing whether an informant’s tip provides probable cause for a
search or seizure). We must bear in mind that we are evaluat-
8558 UNITED STATES v. GERRITSEN
ing not only the waiver of one constitutional right, but the
effective invocation of another. See Faretta, 422 U.S. at 817(“[F]orcing a lawyer upon an unwilling defendant is contrary
to his basic right to defend himself if he truly wants to do
so.”). Based on the record before us, we conclude that Ger-
ritsen understood the potential penalties at the stage in the
proceeding when he waived his right to counsel. To hold oth-
erwise would place too great a burden on his right to self-
representation, and would be contrary to the approach man-
dated by Tovar.
C
[7] Gerritsen further argues that his waiver of the right to
counsel was not knowing and intelligent because he was not
adequately informed of the “dangers and disadvantages of
self-representation.” Faretta, 422 U.S. at 835. While the dis-
trict court did not engage in a lengthy colloquy with Gerritsen
on this issue, the court did highlight for Gerritsen many of the
key disadvantages of proceeding pro se that we have previ-
ously identified. See United States v. Hayes, 231 F.3d 1132,
1138-39 (9th Cir. 2000) (providing guidance on how a district
court could describe the “dangers and disadvantages” of self-
representation, as required by Faretta). The district court
warned Gerritsen that he would be treated “like any other
attorney,” and that the court would not help him or “ask ques-
tions for you or participate in the case at all.” Cf. id. at
1138-39 & n.4 (advising the district courts to tell prospective
pro se litigants, “you will have to abide by the same rules in
court as lawyers do. . . . you will be given no special privi-
leges or benefits, and the judge will not help you”). The dis-
trict court informed Gerritsen that he would be facing difficult
legal issues, that he would be at a disadvantage due to his
ignorance of the law, and that he would face numerous “pit-
falls” that could affect the outcome of his case. Cf. id. at 1139
& n.4 (advising the district court to tell a prospective pro se
litigant that the government is represented by “a trained,
skilled prosecutor who is experienced in criminal law and
UNITED STATES v. GERRITSEN 8559
court procedures,” and the defendant will be exposed to the
dangers and disadvantages of not knowing litigation proce-
dure.)
Gerritsen claims, however, that the district court’s discus-
sion fell short of the Sixth Amendment’s requirements
because the district court did not advise him of his right to
have a lawyer perform certain “core functions” or ensure that
he “appreciate[d] the possible consequences of mishandling
these core functions and the lawyer’s superior ability to han-
dle them.” Mohawk, 20 F.3d at 1484 (quoting Kimmel, 672
F.2d at 721). Gerritsen focuses on the district court’s failure
to advise him, in detail, that he would be handicapped in
selecting a jury, making an opening statement, introducing
admissible evidence, conducting direct and cross-examination
of witnesses, making motions to protect his rights on appeal,
and making an appropriate closing argument. See Hayes, 231
F.3d at 1138-39.
As discussed above, it is well established that the district
court had no obligation to recite a particular script in order to
advise Gerritsen of a lawyer’s core functions. See Tovar, 541
U.S. at 92; Erskine, 355 F.3d at 1168. Although “[a] waiver
of counsel cannot be knowing and intelligent unless the
accused appreciates the possible consequence of mishandling
[the lawyer’s] core functions,” the question before us is “what
the accused understood rather than what the court said or
understood.” Kimmel, 672 F.2d at 721-22. Accordingly,
“[o]ur task is to determine from the record whether the
accused understood these risks when he elected to represent
himself.” Id. at 721. Doing so requires us to look to “the par-
ticular facts and circumstances surrounding that case, includ-
ing the background, experience and conduct of the accused.”
Id. at 722 (internal quotation marks omitted); accord Balough,
820 F.2d at 1488.
[8] The record in this case establishes that Gerritsen had
extensive prior experience representing himself in jury trials.
8560 UNITED STATES v. GERRITSEN
The Presentence Report (PSR), which Gerritsen does not con-
test, reveals that he represented himself in at least six jury tri-
als in California municipal courts between 1990 and 2005,
and at least one federal civil action.1 Based on this record, in
light of his extensive pro se litigation experience, we conclude
that Gerritsen was well aware of the core functions of a law-
yer when he elected to represent himself. Lawyers arguing
misdemeanor criminal jury trials in Los Angeles County
Municipal Courts in the 1990s performed the same core func-
tions as lawyers in federal criminal trials: they selected juries,
introduced and objected to evidence, cross-examined wit-
nesses, made motions, and preserved legal issues for appeal.2
1
According to the PSR, Gerritsen represented himself in misdemeanor
jury trials twice in Huntington Park Municipal Court in 1990 and 1993,
once in South Gate Municipal Court in 1998, twice in Downey Municipal
Court in 1999, once in Long Beach Municipal Court in 1999, and once in
“Rio Hondo Muni. Crt.” in 2005. Because California merged its Municipal
and Superior Courts in 2000, see People v. Superior Court, 28 Cal. 4th
798, 804-05 (2002), there was no “Rio Hondo Municipal Court” in 2005,
and so we do not rely on this seventh jury trial in our analysis. The federal
civil action stemmed from an incident, described in the PSR, in which
Gerritsen alleged that he was kidnapped and beaten by Mexican consular
officials as a result of his protesting outside the Mexican consulate in Los
Angeles. See Gerritsen v. Consulado General de Mexico, 989 F.2d 340,
342-43 (9th Cir. 1993) (describing the case’s procedural history, including
two pro se appeals to this court). Further, our judicial records reflect that
Gerritsen represented himself as a plaintiff or petitioner for writ of habeas
corpus in at least five additional federal civil actions in the Central District
of California, one of which went to trial before a jury. Gerritsen v. City
of Los Angeles, No. 93-5817 (C.D. Cal. filed Sept. 27, 1993); Gerritsen
v. City of Bell Prosecutor, No. 93-5870 (C.D. Cal. filed Sept. 29, 1993)
(habeas petition); Gerritsen v. City of Bell, No. 94-03931 (C.D. Cal. filed
June 13, 1994); Gerritsen v. City of Bell Gardens, No. 95-1271 (C.D. Cal.
filed Mar. 1, 1995); Gerritsen v. United States, No. 97-2720 (C.D. Cal.
filed Apr. 21, 1997) (jury trial). However, because the parties do not refer-
ence these additional five proceedings, we do not rely on them in making
our ruling.
2
Under the California municipal court rules in effect throughout the
1990s, counsel for each party in criminal trials made motions, examined
prospective jurors, and proposed jury instructions. See Cal. Rules of Court
UNITED STATES v. GERRITSEN 8561
Cf. Erskine, 355 F.3d at 1168 (same core functions except for
opening and closing statements). Based on Gerritsen’s actual
litigation of six jury trials, he undoubtedly had a clear idea of
the “possible consequences of mishandling these core func-
tions and the lawyer’s superior ability to perform them.”
Kimmel, 672 F.2d at 721. Such firsthand experience provides
more insight into the pitfalls of self-representation than any
admonition from a court could possibly convey. Accordingly,
based on the record before us, we conclude that Gerritsen was
“aware of the dangers and disadvantages of self-
representation” when he waived his right to counsel. Faretta,
422 U.S. at 835.
III
The right to represent oneself, like the right to counsel, is
secured by the Constitution. “[F]orcing a lawyer upon an
unwilling defendant is contrary to his basic right to defend
himself if he truly wants to do so.” Id. at 817. Our inquiry,
then, must always address the fundamental question whether
a defendant truly wants to represent himself, i.e., whether “his
choice is made with eyes open.” Id. at 835. We have been
instructed by the Supreme Court not to require a “formula or
script” for evaluating a defendant’s assertion of his right to
self-representation and concomitant waiver of his right to
counsel; our approach must be “pragmatic.” Tovar, 541 U.S.
at 87 n.9, 88.
[9] Gerritsen’s argument, at base, is that the district court
made technical errors in the manner in which it gave him
information and took his waiver, and that these technical
501.5, 516.1, 516.2, 517 (West 2000). Parties appearing before municipal
courts were responsible for preserving issues for appeal. See, e.g., People
v. Komatsu, 212 Cal. App. 3d Supp. 1, 5 (App. Dep’t Super. Ct. 1989)
(discussing waiver of issues in an appeal from municipal court). The Cali-
fornia Rules of Evidence also applied to municipal courts. See Cal. Evid.
Code § 300 (West 1995 & Supp. 2009).
8562 UNITED STATES v. GERRITSEN
errors entitle him (after exercising his right to self-
representation and losing at trial) to claim he never validly
waived his right to counsel in the first place. Gerritsen argues
that he did not fully understand what he was giving up when
he asserted his right to self-representation because the district
court failed to ask him “do you intend to represent yourself”
one last time, and because the district court failed to spell out
to him what he already knew: that lawyers in jury trials pick
jurors, examine witnesses, object to evidence, and give open-
ing and closing statements. We will not strain the Supreme
Court’s Faretta case law to so hold, nor will we burden the
rights of future defendants who wish to invoke their Sixth
Amendment right to self-representation. Because Gerritsen
was aware of the possible penalties he faced and the dangers
and disadvantages of self-representation when he waived his
right to counsel at his arraignment on October 21, 2005, we
conclude that his waiver was knowing and intelligent. We
therefore AFFIRM his conviction.