United States v. Frazier-El

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4462
CLINTON BERNARD FRAZIER-EL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-469-WMN)
Argued: September 24, 1999
Decided: March 2, 2000
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
Frank J. MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Senior Judge Magill joined. Judge Murnaghan wrote a dis-
senting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Denise Charlotte Barrett, Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Tarra R. DeShields-
Minnis, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: James Wyda, Federal Public Defender, Jeffrey E. Risberg,
Assistant Federal Public Defender, Baltimore, Maryland, for Appel-
lant. Lynne A. Battaglia, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
Clinton Frazier-El was convicted of possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g), and sentenced to 188
months imprisonment as an armed career criminal under 18 U.S.C.
§ 924(e). On appeal, he contends that the district court erred in (1)
refusing to allow him to dismiss his court-appointed attorney and pro-
ceed pro se; (2) instructing the jury on the mens rea requirement of
§ 922(g); and (3) sentencing him as an armed career criminal. For the
reasons that follow, we affirm.
I
Clinton Frazier-El purchased a 20-gauge shotgun from a Wal-Mart
department store in Catonsville, Maryland, in November 1996, indi-
cating on the required firearms transaction form that he had never
been convicted of a crime punishable by imprisonment for a term
exceeding one year. When a routine examination of Wal-Mart fire-
arms sales records revealed that Frazier-El had been convicted of a
battery and sentenced to a term of five years, law enforcement offi-
cers obtained a warrant for Frazier-El's arrest. They executed the war-
rant at Frazier-El's apartment on December 9, 1996. At the time of
his arrest, Frazier-El was holding the shotgun that he had purchased
at Wal-Mart a month earlier. He told law enforcement officers that he
had "papers for the gun" and that, while he knew he was prohibited
from possessing a handgun, he did not know he was prohibited from
possessing a "long gun."
Following Frazier-El's arrest and the appointment of Jeffrey Ris-
berg, a federal public defender, as his counsel, Risberg filed a motion
2
for a psychiatric evaluation of Frazier-El's competence to stand trial.
At the April 1997 hearing on this motion, Frazier-El told the court,
"I would prefer to have Ms. Watts represent me at this time and I am
requesting the dismissal of Mr. Risberg as my attorney on these par-
ticular grounds and issues." Frazier-El explained that he wanted to file
dismissal motions based on the fact that he "was ordained a conse-
crated sheik under the prophet," a fact that Risberg considered "irrele-
vant." Frazier-El also stated, "I do not want to be represented by a
public defender who thinks that the only defense that I have is to
plead insanity or mental incompetency." The district court responded,
"I have denied your motion to replace Mr. Risberg with Ms. Watts."
At that point Frazier-El announced that Risberg"no longer represents
me or speaks for me." The district court directed Risberg to remain
as Frazier-El's attorney "in this proceeding for the purpose of this
hearing today."
After Dr. Neil Blumberg, a court-appointed psychiatrist, testified at
the April 1997 hearing that Frazier-El "was not competent to stand
trial" at that time because he was suffering from"schizophrenia para-
noid type along with cocaine abuse, prior history of cocaine abuse,"
Frazier-El stated:
I dismissed Mr. Risberg before this proceeding started in
terms of bringing Dr. Blumberg to the witness stand and
have him ask questions. . . . I at this particular point repre-
sent myself and I would like to cross-examine Dr. Blumberg
since I am representing myself in this hearing.
The court, refusing to grant Frazier-El's request, explained the nature
of the hearing and then committed Frazier-El to the custody of the
Attorney General for hospitalization, treatment, and further evalua-
tion. When the court indicated that the decision was in Frazier-El's
best interest, Frazier-El responded, "I think this case could be more
properly handled with another public defender."
Eight months later, after Frazier-El's hospitalization, a second
competency hearing was conducted during which the court concluded
that Frazier-El was competent to stand trial. The court adopted the
conclusions of the "Camp Butner Evaluation Team," which evaluated
and treated Frazier-El. The report concluded that Frazier-El "has an
3
understanding of the adversarial nature of criminal law and verbalizes
an accurate understanding of criminal process, procedural protection
of his rights, and the roles of courtroom personnel." The report indi-
cated, however, that Frazier-El persisted in his view that the United
States government does not have authority over him because "he is
a Moorish national." The report explained:
We do not view his belief system to be delusional in nature,
as it is loosely based on the doctrine of the Moorish Science
Temple of America, a recognized organization in the United
States. Mr. Frazier-El appeared to have exaggerated, added
to, and distorted the doctrine to benefit himself. We attribute
that behavior to his personality disorder and not to a severe
mental illness.
During this hearing, Frazier-El spoke at length about the fact that
members of the Moorish Science Temple were not subject to the
United States courts and that the Moors were "being incarcerated and
treated as slaves as federal contraband property." Frazier-El com-
plained that his attorney Risberg worked for the federal government
and had "never worked in my interest." When he sought to have Ris-
berg removed as counsel, the court denied the motion.
At a motions hearing conducted on January 20, 1998, the day trial
was scheduled to begin, Frazier-El again expressed his dissatisfaction
with appointed counsel. He complained that Risberg had refused to
file motions arguing that Frazier-El, as "an officer in the Moorish Sci-
ence Temple," was not subject to the court's jurisdiction. The follow-
ing colloquy ensued:
The Court: Is it your position that any attorney-- that you
would ask for a new attorney in every instance
where the attorney would refuse to file the
motions; is that your position?
* * *
The Court: Your position is that the Court has no jurisdic-
tion over you, is that right? That this court has
no jurisdiction over you; is that your position?
4
Frazier-El: Well, yes, sir.
The Court: In other words, if you should represent your-
self, you would want to argue that; is that cor-
rect?
Frazier-El: That would be one of the issues.
The Court: Just a minute. If I understand it, I have been
advised this morning that in the event the
Court does not excuse Mr. Risberg and appoint
new counsel, you want to represent yourself;
am I correct?
Frazier-El: Yes, sir.
The Court: And you would argue that this Court has no
jurisdiction, in representing yourself; is that
correct?
Frazier-El: That would be one of the issues, Judge, yes, it
would.
* * *
The Court: If I do not dismiss Mr. Risberg, did you want
to represent yourself? . . . . You want to repre-
sent yourself?
Frazier-El: Yes, sir.
The Court: You want to present -- your basic argument
would be that this Court has no jurisdiction
over you; is that right?
Frazier-El: That is one of the basic arguments.
* * *
5
The Court: In other words, if new counsel were appointed
and refused the same as Mr. Risberg, to pro-
ceed the way you desired, you would want
another new counsel; is that correct? You want
a lawyer who will take the position precisely
that you are suggesting this morning; is that
right? That is what you want?
Frazier-El: Yes, sir. . . . If that is at all possible.
The court denied Frazier-El's motion to substitute counsel and his
request to represent himself. In doing so, the court stated its belief that
Frazier-El's efforts to substitute counsel and, failing that, to proceed
pro se represented efforts "to argue matters which would not be per-
mitted by the court." The court continued:
He would argue that this Court has no jurisdiction and the
Court has ruled that that motion and that argument is abso-
lutely frivolous.
I think Mr. Frazier-El is in a position where he is not
competent because of arguments he has made to represent
himself. However, the Court is absolutely convinced that
Mr. Frazier-El understands the nature of the proceedings
and is able, if he so desires -- he is an intelligent man --
to assist in his own defense, if he so desires.
I think Mr. Frazier-El is trying to argue in this Court not
applicable legal principles but positions taken by an organi-
zation whose position is very well known to the courts of
this country. Therefore, the motion, Mr. Frazier-El, to repre-
sent yourself will again be denied based on the matters
which you have presented.
Trial commenced the next morning, with Risberg acting as defense
counsel. On January 22, 1998, the jury returned a verdict of guilty,
and the court, having determined that Frazier-El had three prior con-
victions for "violent felonies," sentenced Frazier-El as an armed
career criminal under 18 U.S.C. § 924(e). This appeal followed.
6
II
As his principal argument on appeal, Frazier-El contends that the
district court denied him his right to represent himself in violation of
the Sixth Amendment. See Faretta v. California , 422 U.S. 806, 819
(1975) (holding that the Sixth Amendment implicitly provides an
affirmative right to self-representation).
Although the Sixth Amendment guarantees a criminal defendant
"the Assistance of Counsel for his defence," U.S. Const. amend. VI,
Faretta held that it also protects an implied inverse right of self-
representation. And the right of self-representation generally must be
honored even if the district court believes that the defendant would
benefit from the advice of counsel. See 422 U.S. at 834; see also
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). Because an exer-
cise of the right of self-representation necessarily entails a waiver of
the right to counsel -- a defendant obviously cannot enjoy both rights
at trial -- the exercise of the right of self-representation must be eval-
uated by using many of the same criteria that are applied to determine
whether a defendant has waived the right to counsel. An assertion of
the right of self-representation therefore must be (1) clear and
unequivocal, see Faretta, 422 U.S. at 835; United States v. Lorick,
753 F.2d 1295, 1298 (4th Cir. 1985); (2) knowing, intelligent and vol-
untary, see Godinez v. Moran, 509 U.S. 389, 400-01 (1993); United
States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997); and (3)
timely, see United States v. Lawrence, 605 F.2d 1321, 1325 n.2 (4th
Cir. 1979).
The particular requirement that a request for self-representation be
clear and unequivocal is necessary to protect against "an inadvertent
waiver of the right to counsel by a defendant's``occasional musings
on the benefits of self-representation.'" United States v. Arlt, 41 F.3d
516, 519 (9th Cir. 1994) (quoting Adams v. Carroll, 875 F.2d 1441,
1444 (9th Cir. 1989). This protection against an inadvertent waiver of
the right to counsel is especially important because"representation by
counsel does not merely tend to ensure justice for the individual crim-
inal defendant, it marks the process as fair and legitimate, sustaining
public confidence in the system and in the rule of law." Singleton, 107
F.3d at 1102.
7
The requirement that a request for self-representation be clear and
unequivocal also prevents a defendant from taking advantage of and
manipulating the mutual exclusivity of the rights to counsel and self-
representation. A defendant who vacillates at trial places the trial
court in a difficult position because it "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." Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1995)
(en banc) (quoting Cross v. United States, 893 F.2d 1287, 1290 (11th
Cir. 1990)). In ambiguous situations created by a defendant's vacilla-
tion or manipulation, we must ascribe a "constitutional primacy" to
the right to counsel because this right serves both the individual and
collective good, as opposed to only the individual interests served by
protecting the right of self-representation. Singleton, 107 F.3d at
1102; see also id. at 1096; Fields, 49 F.3d at 1029; United States v.
Gillis, 773 F.2d 549, 559 (4th Cir. 1985).
At bottom, the Faretta right to self-representation is not absolute,
and "the government's interest in ensuring the integrity and efficiency
of the trial at times outweighs the defendant's interest in acting as his
own lawyer." Martinez v. Court of Appeals of Cal., 120 S. Ct. 684,
691 (2000) (holding that Faretta does not require that a criminal
defendant be allowed to represent himself on direct appeal).
With these principles in hand, we now turn to Frazier-El's conten-
tion that he was improperly denied his right of self-representation in
this case. Any review of this contention must be considered against
the background of Frazier-El's overarching contention that, as an "of-
ficer in the Moorish Science Temple," he was not subject to the juris-
diction of a United States district court. Beginning with his very first
hearing, Frazier-El repeatedly instructed his counsel to assert that
defense and to subpoena witnesses who were members of the Temple.
His dissatisfaction with his appointed counsel resulted from counsel's
advice to Frazier-El that his arguments were meritless and irrelevant.
And because of this advice from appointed counsel, Frazier-El alter-
natively sought representation by counsel who would assert the
defense or self-representation.
Frazier-El's first expression of his desire to represent himself came
at the first competency hearing, during which he repeatedly insisted
8
that he had dismissed counsel and that he would represent himself at
the hearing. This hearing, however, was conducted for the sole pur-
pose of evaluating Frazier-El's competence to stand trial. The court
heard expert testimony that Frazier-El suffered from paranoid schizo-
phrenia and that he was incompetent to stand trial at that time. The
Supreme Court has made clear that the standard of competence for
waiving counsel is identical to the standard of competence for stand-
ing trial. See Godinez, 509 U.S. at 396-97. Therefore, the district
court's refusal to permit Frazier-El to represent himself until the issue
of competency was determined was clearly justified.
At Frazier-El's second competency hearing, he again expressed
dissatisfaction with Risberg and sought to have him removed as coun-
sel. Significantly, however, Frazier-El did not express any desire to
proceed pro se at this hearing.
Finally, on the day of trial, Frazier-El again sought to have Risberg
removed as counsel and substitute counsel appointed. Through ques-
tioning, the court elicited the underlying motive for Frazier-El's
expression of dissatisfaction with appointed counsel-- namely, the
frustration he felt as a result of Risberg's unwillingness to file frivo-
lous motions based on Frazier-El's membership in the Moorish Sci-
ence Temple:
The Court: In other words, if new counsel were appointed
and refused the same as Mr. Risberg, to pro-
ceed the way you desire, you would want
another new counsel; is that correct? You want
a lawyer who will take the position precisely
that you are suggesting this morning; is that
right? That is what you want?
Frazier-El: Yes, sir. . . . If that is at all possible.
The court also ascertained that Frazier-El's alternative request for
self-representation -- should his request for substitute counsel be
denied -- was a manipulative effort by Frazier-El to assert the
defenses himself. Thus the court said, "If I do not dismiss Mr. Ris-
berg, did you want to represent yourself?" Frazier-El responded affir-
9
matively, agreeing that he wanted to represent himself in order to
present his jurisdictional argument.
The right of self-representation 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."
Wiggins, 465 U.S. at 176-77; cf. Martinez, 120 S. Ct. at 689 (noting
that with the increased availability of competent counsel, the histori-
cal reasons for recognizing the right "do not have the same force").
The right does not exist, however, to be used as a tactic for delay, see
Lawrence, 605 F.2d at 1324-25; for disruption, see Faretta, 422 U.S.
at 834 n.46; for distortion of the system, see Singleton, 107 F.3d at
1102; or for manipulation of the trial process, see Lawrence, 605 F.2d
at 1325. A trial court must be permitted to distinguish between a
manipulative effort to present particular arguments and a sincere
desire to dispense with the benefits of counsel. The circumstances
surrounding Frazier-El's purported waiver of his right to counsel and
the assertion of his right to proceed without counsel in this case sug-
gest more a manipulation of the system than an unequivocal desire to
invoke his right of self-representation. Taking the record as a whole,
see Singleton, 107 F.3d at 1097, we are satisfied that the district court
was justified, when confronted with Frazier-El's vacillation between
his request for substitute counsel and his request for self-
representation, in insisting that Frazier-El proceed with appointed
counsel. See Martinez, 120 S. Ct. at 691 (in the context of an asserted
Faretta right, recognizing the government's interest in "ensuring the
integrity and efficiency of the trial").
In denying Frazier-El's intermittent requests to represent himself,
the district court stated that "Mr. Frazier-El is. . . not competent
because of arguments he made to represent himself." If this particular
statement by the court was intended as an explanation for its refusal
to permit Frazier-El to proceed pro se, as Frazier-El now contends, it
was an error of law. See Godinez, 509 U.S. at 399 ("[T]he compe-
tence that is required of a defendant seeking to waive his right to
counsel is the competence to waive the right, not the competence to
represent himself"); Faretta, 422 U.S. at 836 (defendant's technical
legal knowledge "not relevant to an assessment of his knowing exer-
cise of the right to defend himself"). But we must assume that the
court's statement that Frazier-El was "not competent because of argu-
10
ments he made to represent himself" refers only to the legitimacy of
the request and the arguments advanced, rather than to Frazier-El's
ability to make a knowing election of self-representation and waiver
of counsel. This assumption is confirmed by what the court said next:
"Frazier-El understands the nature of the proceedings and is able, if
he so desires -- he is an intelligent man -- to assist in his own
defense, if he so desires."
III
Frazier-El next contends that the district court erred in refusing to
give the following proposed jury instruction on the mens rea require-
ment of 18 U.S.C. § 922(g):
For the government to prove this element beyond a reason-
able doubt, you must find that the defendant knew that the
firearm he possessed was of a type he was prohibited from
possessing.
He argues that this instruction was necessary "because § 922(g) does
not prohibit a felon from possessing all firearms." Therefore, he main-
tains, for the jury to find that he knowingly possessed a firearm, "it
should have been required to find that he knew that the firearm bore
the characteristics that brought it within the scope of § 921(a)(3), i.e.,
that the defendant knew that the firearm was of the type that he was
prohibited from possessing."
Section 922(g) makes it unlawful for any person"who has been
convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year . . . to . . . possess in or affecting commerce,
any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign com-
merce." 18 U.S.C. § 922(g). "Firearm" is defined to mean "any
weapon (including a starter gun) which will or is designed to or may
readily be converted to expel a projectile by the action of an explo-
sive." 18 U.S.C. § 921(a)(3)(A). That section, however, specifically
excludes "an antique firearm" from the definition of firearm. Id. The
mens rea requirement of § 922(g) prescribes that the defendant act
"knowingly" in committing the violation. 18 U.S.C. § 924(a)(2).
11
The district court instructed the jury on the mens rea requirement
of § 922(g) as follows:
The government also must prove that Mr. Frazier-El acted
knowingly. This means that he possessed the firearm pur-
posely and voluntarily, and not by accident, mistake or care-
lessness. It also means that he knew that the weapon was a
firearm, as we commonly use the word. However, the gov-
ernment is not required to prove that Mr. Frazier-El knew
that he was breaking the law.
We believe that the district court's instruction correctly stated the
mens rea required for a violation of § 922(g). Under the district
court's instruction, while the jury would have to find that Frazier-El
knew that his weapon was a firearm, it would not have to find that
he knew the possession of a firearm constituted a violation of law.
The conventional mens rea of criminal statutes, unless Congress
clearly specifies otherwise, requires not that a defendant know that his
conduct was illegal, but only that he "know the facts that make his
conduct illegal." Staples v. United States , 511 U.S. 600, 605 (1994);
see also United States v. International Minerals & Chem. Corp., 402
U.S. 558, 559, 562 (1971) (holding that "knowingly violates" means
knowledge of the "specific acts or omissions which violate the Act").
See generally United States v. Wilson, 133 F.3d 251, 260-64 (4th Cir.
1997).
In this case, Frazier-El may have mistakenly believed that his shot-
gun was a "long gun," exempted from § 922(g). But such ignorance
of the law provides no defense to a statute's violation. See Cheek v.
United States, 498 U.S. 192, 199 (1991). Section 922(g) prohibits the
possession by a felon of all firearms, except an antique. In this case
there is no assertion that Frazier-El thought his shotgun was an
antique. Because his requested jury instruction might suggest to the
jury that Frazier-El had to know that his conduct was illegal, the dis-
trict court did not err in refusing to give it.
It is reversible error to decline a requested jury instruction only if
the requested instruction "(1) was correct; (2) was not substantially
covered by the court's charge to the jury; and (3) dealt with some
point in the trial so important, that failure to give the requested
12
instruction seriously impaired the defendant's ability to conduct his
defense." United States v. Queen, 132 F.3d 991, 1000 (4th Cir. 1997)
(quoting United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995)). In
this case, if Frazier-El's requested instruction is interpreted to cover
only "knowledge" that the defendant possessed a "firearm," it was
adequately addressed by the court's instructions. On the other hand,
if it is interpreted as a request to require knowledge of a violation, it
was properly rejected as a mischaracterization of the law.
IV
Finally, Frazier-El contends that he was improperly sentenced as an
armed career criminal under 18 U.S.C. § 924(e). See also U.S.S.G.
§ 4B1.4. Section 924(e) mandates a 15-year minimum sentence of
imprisonment for a person convicted of a § 922(g) weapons offense
if that person has "three previous convictions . . . for a violent felony
or a serious drug offense." 18 U.S.C. § 924(e)(1). A violent felony is
defined as any crime punishable by more than one year imprisonment
that
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explo-
sives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B). While Frazier-El concedes that he has two
qualifying convictions for assault, he argues that the district court
improperly treated his 1984 conviction for violation of Md. Ann.
Code art. 27, § 36, as a violent felony.
To determine whether a prior conviction constitutes a violent fel-
ony, a sentencing court must determine whether a prior offense
involves the necessary force or risk of injury to another by employing
a categorical approach that relies on (1) the fact of conviction and (2)
the definition of the prior offense. See Taylor v. United States, 495
U.S. 575, 600, 602 (1990); United States v. Coleman, 158 F.3d 199,
201-02 (4th Cir. 1998) (en banc); cf. United States v. Kirksey, 138
13
F.3d 120, 124 (4th Cir.) (same analysis for U.S.S.G.§ 4B1.1), cert.
denied, 119 S. Ct. 122 (1998).
In this case, the 1984 prior conviction that is at issue was for
"Deadly Weapon--Int/Injure" in violation of Md. Ann. Code art. 27,
§ 36, which provides in relevant part:
Every person who shall wear or carry any dirk knife, bowie
knife, switchblade knife, star knife, sandclub, metal knuck-
les, razor, nunchaku, or any other dangerous or deadly
weapon of any kind, whatsoever . . . concealed upon or
about his person, and every person who shall wear or carry
any such weapon . . . openly with the intent or purpose of
injuring any person in any unlawful manner, shall be guilty
of a misdemeanor, and upon conviction, shall be fined not
more than $1,000 or be imprisoned in jail, or sentenced to
the Maryland Department of Correction for not more than
three years.
Md. Ann. Code art. 27, § 36(a)(1). By its terms, this provision creates
a single offense that "may be committed in two ways: with the
weapon carried (1) concealed, or (2) openly with the intent to injure."
Eldridge v. State, 619 A.2d 531, 534 (Md. 1993). The district court
found that Frazier-El's conviction was for a violation of the second
prong, i.e., carrying a weapon with the intent to injure.* Frazier-El
contends that the evidence relied upon by the district judge was insuf-
ficient to make this determination.
_________________________________________________________________
*We do not address whether a conviction under the first prong of
§ 36(a)(1), for carrying a concealed weapon, would be a qualifying pred-
icate offense for § 924(e) purposes because the parties did not argue the
issue and this court has not yet had occasion to consider it. The decisions
of other circuits are split on the issue. Compare United States v. Hall, 77
F.3d 398, 401 (11th Cir. 1996) (carrying concealed weapon "is conduct
that poses serious potential risk of physical injury and, so, falls under the
[§ 924(e)(2)(B)] definition of violent felony"), and United States v.
Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998) (same conclusion under
U.S.S.G. § 4B1.2(1)), cert. denied, 119 S. Ct. 1754 (1999) with United
States v. Whitfield, 907 F.2d 798, 800 (8th Cir. 1990) (risk to others from
carrying concealed weapon "is not so immediate" as to present serious
risk of physical injury).
14
To establish that Frazier-El was convicted of openly carrying a
weapon with intent to injure, the district court relied on Maryland
court records that contained notations describing the 1984 conviction
in two separate documents, respectively, as "Deadly Weapon--
Int/Injure" and "D/W--Int/Injure." Frazier-El argues, however, that
these notations do not clearly indicate which type of weapon offense
was charged. He maintains that the reference to the conviction as
"Deadly Weapon--Int/Injure" describes any§ 36(a)(1) violation and
could refer to either a concealed weapon violation or an open posses-
sion with intent to injure violation. He suggests that the first part of
the notation, "Deadly Weapon," refers to the concealment prong of
the statute and that the second part, "Int/Injure," refers to the
possession-with-intent-to-injure prong. This argument, however,
belies the statutory language. Both prongs of § 36(a)(1) require use of
a "dangerous or deadly weapon," and the distinction between the two
prongs turns on whether the weapon is carried concealed or carried
openly. If concealment were the basis of the offense, the entry would
not include the "intent-to-injure" qualifier. Rather, the comparable
entry would read "Deadly Weapon -- Concealment."
Frazier-El also argues that the length of his sentence -- 89 days --
indicates that the intent-to-injure prong of § 36(a)(1) could not have
been the basis of conviction because § 36(a)(2) imposes a three-year
mandatory sentence "if it shall appear from the evidence that [the]
weapon was carried . . . with the deliberate purpose of injuring the
person or destroying the life of another." Independently of § 36(a)(2),
§ 36(a)(1) criminalizes possession of a deadly weapon with the "in-
tent or purpose of injuring any person." Section 36(a)(2), which
imposes the mandatory three-year sentence, does so only when the
weapon was carried "with the deliberate purpose of injuring the per-
son or destroying the life of another." While the distinction between
an "intent or purpose of injuring" and a "deliberate purpose of injur-
ing" may be elusive, it cannot be doubted that the Maryland legisla-
ture meant the latter to signify a more culpable level of intent. Cf.
Mackall v. State, 387 A.2d 762, 765-66 (Md. 1978) (analyzing "legis-
lative scheme" as manifested in "language and structure" of § 36).
Frazier-El's comparatively short sentence could only imply that the
aggravating factor of § 36(a)(2) was not found. But this conclusion
provides no ground for inferring that the certified records relied upon
15
by the district court misstated the basis for his conviction under
§ 36(a)(1).
Finally, we note that in connection with the same conduct for
which Frazier-El was convicted under § 36(a), he was also found
guilty of both assault and theft, the sentences for which ran concur-
rently with the sentence for the § 36(a) violation. This assault convic-
tion, coupled with the § 36(a) conviction, provides further evidence
that Frazier-El's 1984 conviction had "as an element the use,
attempted use, or threatened use of physical force against the person
of another," 18 U.S.C. § 924(e)(2)(B)(i), or involved conduct that
"presents a serious potential risk of physical injury to another," 18
U.S.C. § 924(e)(2)(B)(ii).
Notwithstanding the assault conviction, however, Frazier-El's
§ 36(a) conviction would still be a predicate offense for 18 U.S.C.
§ 924(e) because a § 36(a) violation requires not only the intent to
carry a dangerous weapon but also the intent to injure another. See
Anderson v. State, 614 A.2d 963, 969 (Md. 1992). Indeed, Maryland's
enactment of § 36(a) was prompted by the recognition that such con-
duct presents a serious risk of injury, not only to a targeted victim, but
also to unsuspecting members of the general public. See Anderson,
614 A.2d at 965. We therefore conclude that the district court did not
err in sentencing Frazier-El as an armed career criminal under the
sentence enhancement provisions of § 924(e).
For the reasons given, we affirm the judgment of the district court.
AFFIRMED
MURNAGHAN, Circuit Judge, dissenting:
The majority opinion correctly recites the constitutional standards
governing the Sixth Amendment right to counsel and the correlative
right under Faretta to waive counsel and proceed pro se. See Faretta
v. California, 422 U.S. 806, 819 (1975) ("Although not stated in the
[Sixth] Amendment in so many words, the right to self-representation
-- to make one's own defense personally -- is . . . necessarily
implied by the structure of the Amendment."). The majority also iden-
16
tifies the responsibilities incumbent upon defendants before undertak-
ing self-representation. Defendants must execute a waiver of their
Sixth Amendment right to counsel that is (1) clear and unequivocal,
see Faretta, 422 U.S. at 835; (2) knowing, intelligent, and voluntary,
see id.; see also Godinez v. Moran, 509 U.S. 389, 400-01 (1993); and
(3) timely. See United States v. Lawrence, 605 F.2d 1321, 1325 n.2
(4th Cir. 1979).
While the majority articulates the constitutional framework accu-
rately, its characterization of Frazier-El's attempted waiver of counsel
is somewhat tenuous. As I read the record, the district court's denial
of Frazier-El's request for self-representation rested on a fundamental
misunderstanding of the "competency" a defendant must demonstrate
before waiving counsel and proceeding pro se. Recognizing the futil-
ity of affirming on this fallible legal foundation, the majority creates
a post hoc rationalization for the district court's ruling. The majority
accomplishes this by redescribing the infirmity in Frazier-El's
request, emphasizing not his incompetence but his failure to waive
counsel in a "clear and unequivocal" fashion. At various points, the
majority also engrafts a fourth "legitimacy" criterion onto Faretta's
three-part framework, arguing that defendants must also have "legiti-
mate" or "sincere" reasons for wanting to proceed pro se. This refor-
mulation of the case is more conceptually sophisticated than the
district court's approach. When applied to the facts of Frazier-El's
case, however, the majority's modified analysis suffers from several
difficulties.
I.
Frazier-El was profoundly dissatisfied with his court-appointed
counsel, in part because his counsel refused to argue that the court
lacked jurisdiction over Frazier-El as "an officer in the Moorish Sci-
ence Temple." Frazier-El initially sought the appointment of new
counsel, which the court denied. As a fallback, Frazier-El requested
that the court permit him to proceed pro se. The court denied this
request as well.
The threshold issue is determining why the district court denied
Frazier-El's pro se request and whether a denial on that basis was
appropriate. The court explained that it was denying the request
17
because Frazier-El's "Moorish national" argument represented an
effort "to argue matters which would not be permitted by this court."
The court continued: "I think Mr. Frazier-El is in a position where he
is not competent because of arguments he has made to represent him-
self. However, this court is absolutely convinced that Mr. Frazier-El
understands the nature of the proceedings and is able, if he so desires
-- he is an intelligent man -- to assist in his own defense . . . ."
(emphasis added).
The district court's conclusion reflects a misunderstanding of the
"competence" defendants must demonstrate before undertaking self-
representation. "Competency" in the waiver of counsel context is co-
extensive with the "competency" necessary to stand trial. See
Godinez, 509 U.S. at 399 (holding that a defendant who waives his
right to counsel need not be "more competent than a defendant who
does not, since there is no reason to believe that the decision to waive
counsel requires an appreciably higher mental functioning . . . ."); see
also Faretta, 422 U.S. at 835-36 (while a defendant choosing self-
representation must do so "competently and intelligently," the defen-
dant's "technical legal knowledge" is "not relevant" to determining
whether he is competent to waive his right to counsel). "Competency"
represents the minimal ability to understand the nature of the trial pro-
ceedings and to assist in one's own defense. See Godinez, 509 U.S.
at 401 n.12 ("The focus of a competency inquiry is the defendant's
mental capacity; the question is whether he has the ability to under-
stand the trial proceedings."). It is the threshold issue in every waiver
of counsel case; for if the defendant is incapable of understanding the
adversary proceeding in which he is involved, no trial is possible,
much less a trial with the defendant conducting his own representa-
tion.
The district court, however, spoke of Frazier-El's lack of "compe-
tence" in the same sentence that it pronounced him capable of assist-
ing in his own defense -- stating, in effect, that the defendant was not
competent to proceed pro se even though he was competent to stand
trial. In doing so, the court improperly applied a heightened standard
of competency for waiver of counsel purposes, requiring defendants
seeking pro se representation to demonstrate an extra measure of legal
capacity exceeding the baseline standard for competency to stand trial.1
_________________________________________________________________
1 The Supreme Court has often spoken of the "knowing and intelligent"
requirement as imposing a "heightened" standard on defendants seeking
18
The district court's conclusion is incorrect as a matter of law, given
that the competency standards in the two contexts are symmetrical.
See Faretta, 422 U.S. at 834 (rejecting judicial paternalism and hold-
ing that a court must respect a defendant's desire for self-
representation as competent even when "he may conduct his own
defense ultimately to his own detriment"); see also United States v.
Arlt, 41 F.3d 516, 518 (9th Cir. 1994) ("[T]he Supreme Court's deci-
sion in Godinez explicitly forbids any attempt to measure a defen-
dant's competency to waive the right to counsel by evaluating his
ability to represent himself [in a tactical sense]."). The court effec-
tively ratchetted up the standard for a valid waiver of the right to
counsel, applying a heightened "competency" analysis that scrutinized
Frazier-El's reasons for seeking pro se representation rather than his
basic capacity to understand the trial proceedings and his rudimentary
cognizance of what waiving counsel would entail.
To its credit, the majority opinion correctly notes that the district
court, when denying Frazier-El's request for pro se representation,
committed "an error of law" to the extent it based its denial on the
feebleness of Frazier-El's proposed arguments and the legal "incom-
petence" these arguments allegedly reflected. Instead of reversing the
district court's error, however, the majority provides a post hoc ratio-
_________________________________________________________________
self-representation. See Godinez, 509 U.S. at 401. In Godinez, however,
the court explained that the heightened standard created by the "knowing
and intelligent" requirement "is not a heightened standard of
competence." Id. Instead, it is a heightened standard of cognizance. See
id. at 401 n.12 (holding that the "competency inquiry" focuses on "the
defendant's mental capacity" and "ability to understand the proceedings,"
whereas the "knowing and voluntary" inquiry determines "whether the
defendant actually does understand the significance and consequences of
a particular decision and whether the decision is uncoerced").
The evidence suggests that Frazier-El did in fact understand the signif-
icance and consequences of waiving counsel and proceeding pro se,
thereby satisfying the heightened "knowing and voluntary" requirement.
Thus, even if the district court was confused about the proper nomencla-
ture and accidentally conflated the "competency" inquiry and the "know-
ing and voluntary" inquiry, its denial of Frazier-El's request was still
improper.
19
nalization for the court's denial of Frazier-El's request for self-
representation. Recognizing that the district court's "competency"
analysis is indefensible, the majority repackages the court's denial of
Frazier-El's pro se request as resting on two different foundations: (1)
Faretta's first requirement that waivers of the right to counsel be
"clear and unequivocal," 422 U.S. at 835, and (2) a manufactured
"fourth" requirement that defendants have sincere and legitimate rea-
sons for seeking pro se representation. The majority's "clear and
unequivocal" analysis is an attack on the form of Frazier-El's request.
Its "sincere and legitimate" analysis is an attack on the reasons why
Frazier-El sought pro se representation.
II.
First, the form of Frazier-El's request. The majority contends that
the district court denied Frazier-El's request for self-representation
because Frazier-El repeatedly equivocated, vacillating between a
desire for new appointed counsel, on one hand, and a desire to pro-
ceed pro se, on the other hand. Whether this accurately describes the
district court's rationale is of course debatable, given that the court
seemed more concerned with the kinds of arguments Frazier-El
wanted to raise at trial than with the certitude of his desire to make
them on his own behalf. Assuming for the moment that the court was
indeed concerned about the clarity of Frazier-El's request for self-
representation, there was nothing equivocal about what Frazier-El
said. It is true that Frazier-El's request was a conditional one that he
phrased "in the alternative," making it more nuanced than an orthodox
waiver of counsel. Nevertheless, Frazier-El's request to represent
himself was perfectly clear and intelligible. Each day people make
countless requests in the alternative ("I'd like some coffee, but if
you're out of coffee I'll take some tea"; "I'd prefer to see a movie,
but if that's not possible, we can go to the museum instead"). Many
languages even have a separate linguistic category called the subjunc-
tive mood to express these sorts of contingent statements. Because
such statements are "conditional . . . not equivocal," Adams v.
Carroll, 875 F.2d 1441, 1445 (9th Cir. 1989), every other federal cir-
cuit to consider the question has come to the sensible conclusion that
requesting self-representation as a "fallback" or "alternative" to a pri-
mary request for new appointed counsel does not automatically render
the alternative request unclear or equivocal for purposes of Faretta.
20
See Adams, 875 F.2d at 1444-45 (conditional nature of request for
self-representation does not make it equivocal or provide evidence of
vacillation, in view of the "earnestness and frequency of [defendant's]
requests to represent himself"); Johnstone v. Kelly, 808 F.2d 214, 216
n.2 (2d Cir. 1986) ("A request to proceed pro se is not equivocal
merely because it is an alternative position, advanced as a fall-back
to a primary request for different counsel.") (citations omitted);
Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994) ("[A] defendant
is not deemed to have equivocated in his desire for self-representation
merely because he expresses that view in the alternative [and] simul-
taneously requests the appointment of new counsel . . . ."); and United
States v. Baker, 84 F.3d 1263, 1264 (10th Cir. 1996) (rejecting gov-
ernment's argument that defendant did not make clear and unequivo-
cal request; request for advisory counsel did not diminish right to self-
representation).
While the majority does not embrace the common sense position
that prevails in other federal circuits, I do not read its opinion as creat-
ing a categorical rule that every request stated in the alternative is pre-
sumptively an equivocal one. Instead, the majority implies that courts
must look to the policies underlying the "clear and unequivocal"
requirement to determine whether a particular request for self-
representation complies with Faretta. Thus, on the majority's theory,
not every request stated in the alternative violates the "clear and
unequivocal" requirement -- only that sub-set of requests stated in
the alternative violating the policies the requirement embodies.
III.
The majority seems to have three different theories about why pro
se requests stated in the alternative violate the "clear and unequivo-
cal" requirement, vitiating a defendant's request for self-
representation: (1) conditional requests increase the risk of an inad-
vertent waiver of the right to counsel; (2) conditional requests are
often a manipulative tactic for delay, disruption, and distortion of the
system; and (3) conditional requests are often a strategic ploy to
create grounds for reversible error on appeal.
First, the majority argues that a request stated in the alternative
may increase the risk of "an inadvertent waiver of the right to counsel
21
by a defendant's ``occasional musings on the benefits of self-
representation.'" Arlt, 41 F.3d at 519 (quoting Adams, 875 F.2d at
1444). In the instant case, however, Frazier-El's request for self-
representation reflected a deep-seated, persistently held conviction,
not an "occasional musing" on the benefits of proceeding pro se. In
separate pretrial proceedings spread out over the course of a year,
Frazier-El repeatedly told the court that he wanted to represent him-
self. At the initial hearing regarding his competency to stand trial,
Frazier-El told the court several times that he wanted to dismiss his
lawyer and represent himself. Frazier-El reasserted his right to self-
representation at the second competency hearing when he sought to
discharge his counsel, Mr. Risberg. Finally, before the start of the pre-
trial motions hearing, Frazier-El again sought to represent himself and
repeatedly responded "yes" when the court asked him if that was his
desire. Thus the concerns raised in Arlt (amorphous gestures toward
self-representation leading to an inadvertent waiver of the right to
counsel) are simply not present in the instant case. If there is an infir-
mity in Frazier-El's request, it must therefore lie elsewhere.
The majority's second theory is that pro se requests stated in the
alternative are not "clear and unequivocal" when they are a device for
delay, disruption, and distortion of the system. See majority op. at 8.
A defendant's duplicitous motivations for stating a pro se request,
however, have nothing to do with the request's clarity and unequivo-
cality. I suspect the majority would counter that a pro se request
engendered by ulterior motives (such as the desire to delay, disrupt,
or distort) is not "clear and unequivocal" in the sense that it is tainted
with an agenda, rather than being a pure, unalloyed request. This is
a creative gloss on the "clear and unequivocal" requirement. What the
majority is really doing, however, is grafting a fourth "sincerity," or
"legitimacy," criterion onto the trilogy of factors governing waiver of
the right to counsel under Faretta. See majority op. at 10 ("A trial
court must be permitted to distinguish between a manipulative effort
to present particular arguments and a sincere desire to dispense with
the benefits of counsel.") (emphasis added).
The questionable pedigree of the majority's "sincerity" thesis is
best illustrated by the cases the majority cites in support of it. One of
the cases has nothing to do with waiver of the right to counsel at all.
The two others are factually distinguishable from the instant case. For
22
example, the majority cites United States v. Lawrence, 605 F.2d 1321,
1324-25 (4th Cir. 1979), as authority for its claim that alternative
requests for self-representation are invalid when used as a tactic for
"delay." Lawrence did raise concerns about the tendency of self-
representation requests to delay trial proceedings; but the court dis-
cussed the issue under the rubric of the "timeliness" requirement, ask-
ing whether courts should honor requests by the defendant to waive
counsel and proceed pro se after the trial has commenced. The
Lawrence court held that the "timeliness" requirement is designed to
strike a balance between the defendant's right to self-representation
and the system's interest in minimizing disruptions, avoiding incon-
venience and delay, and maintaining the continuity of the trial. Id.Lawrence is therefore a case about late, untimely requests to proceed
pro se, not about pro se requests stated in the alternative. Conse-
quently, it is a red herring in the majority's analysis. Moreover, what
little relevance Lawrence possesses clearly redounds to Frazier-El's
benefit, given that the defendant in Lawrence requested self-
representation only after a year of repeated pretrial court appearances,
see id. at 1325, whereas Frazier-El stated his request from the outset
of the pretrial proceedings.
Equally misleading is the majority's reference to United States v.
Singleton, 107 F.3d 1091 (4th Cir. 1997), for the proposition that pro
se requests stated in the alternative are impermissible when they are
an "instrument to distort the system." Id . at 1102. Like Lawrence,
Singleton was not a case about a pro se request stated in the alterna-
tive. Instead, it involved a request by a defendant to represent himself
in certain spheres of the trial while enjoying the benefits of appointed
counsel in others. In the instant case, Frazier-El wanted either a new
counsel or to represent himself. The defendant in Singleton, however,
wanted both simultaneously -- an "intermediate accommodation" that
involved "selectively employ[ing] his attorney while making his own
defense." Id. The "distortion" of the system that Singleton addressed
therefore arose from a scenario entirely distinguishable from Frazier-
El's conditional request for self-representation. The majority's effort
to export Singleton's "distortion" rationale to the instant case is there-
fore unavailing.
Most problematic is the majority's misleading citation to footnote
46 of Faretta for the proposition that defendants should not use con-
23
ditional pro se requests as a tactic for"disruption of the system." 422
U.S. at 834 n.46. Footnote 46 has nothing to do with conditional pro
se requests. Indeed, it has nothing to do with the propriety of any type
of pro se request. Instead, footnote 46's"disruption" concerns focus
on problems that may arise after a court has already granted a pro se
request, and a defendant who is untrained in the rituals and conven-
tions of legal argumentation represents himself without the normaliz-
ing influence of a lawyer. Footnote 46 of Faretta empowers courts to
deal with potential disruptions and irregularities by preventing pro se
defendants from making a travesty of the court proceedings. Footnote
46, however, says nothing about whether a defendant's disruptive
motivations for making a pro se request constitute a legitimate basis
for denying it.2
_________________________________________________________________
2 The majority also relies on Martinez v. Court of Appeals of Cal., 120
S. Ct. 684 (2000), for the proposition that trial courts have a general,
overarching interest in "ensuring the integrity and efficiency of the trial,"
which often "outweighs the defendant's interest in acting as his own law-
yer." Id. at 691. Martinez, however, is distinguishable. In that case, the
question before the Court was whether the logic of Faretta, which recog-
nized a Sixth Amendment right to represent oneself at trial, also confers
an analogous Sixth Amendment right to represent oneself during appel-
late proceedings. See id. at 687 ("Our conclusion in Faretta extended
only to a defendant's constitutional right to conduct his own defense.
Accordingly, our specific holding was confined to the right to defend
oneself at trial. We now address the different question whether the rea-
soning in support of that holding also applies when the defendant
becomes an appellant and assumes the burden of persuading a reviewing
court that the conviction should be reversed."). Because the Sixth
Amendment "does not apply to appellate proceedings," id. at 690, the
Court held that "any individual right to self-representation on appeal
based on autonomy principles must be grounded in the Due Process
Clause." Id.In the course of its due process inquiry, the Court observed, in dicta,
that "the right to self-representation is not absolute . . . [e]ven at the trial
level . . . ." Id. at 691. The Court then enumerated the various limits on
the Sixth Amendment pro se right recognized in Faretta. For example,
the defendant's request for self-representation must be "voluntary and
intelligent" and "timely." The trial judge"may also terminate self-
representation or appoint ``standby counsel' -- even over the defendant's
objection -- if necessary." Id. Standby counsel may also participate in
24
In short, the majority derives its second theory (the sincerity-based
"delay, disruption, and distortion" argument) from inapposite case
law. Notwithstanding the fact that a defendant's motivation for seek-
ing self representation is irrelevant under the trilogy of factors gov-
erning waiver of the right to counsel, the three cases the majority cites
to support its "sincerity" thesis have nothing to do with the defen-
dant's sincerity at all. The defendant in Lawrence lost because his pro
se request was belated, not because it was insincere. The defendant
in Singleton lost because he sought an impermissible middle ground
between self-representation and representation by counsel. The prob-
lem was what he wanted, not why he wanted it. Faretta is the farthest
afield because it has nothing to do with requests for self-
representation at all, much less the sincerity with which defendants
make such requests.
Even if it had stronger moorings in relevant decisional authority,
the "sincerity" thesis is a weak basis for attacking Frazier-El's
_________________________________________________________________
the trial proceeding, even without the express consent of the defendant,
as long as the participation does not seriously undermine the appearance
before the jury that the defendant is representing himself. See id. (citing
McKaskle v. Wiggins, 465 U.S. 168, 187 (1984)). Finally, the trial judge
is under no obligation to provide instruction to the pro se defendant on
courtroom procedure or to perform any "legal``chores' for the defendant
that counsel would normally carry out." Martinez, 120 S. Ct. at 691 (cit-
ing McKaskle, 465 U.S. at 183-84).
These various limits on the pro se right, the Martinez Court explained,
reflect the "government's interest in ensuring the integrity and efficiency
of the trial," which will "at times outweigh the defendant's interest in act-
ing as his own lawyer." Id. at 691. The"integrity and efficiency" ratio-
nale, however, does not endow trial courts with the power to scrutinize
the "sincerity" or "legitimacy" or a pro se request, as the majority claims.
The only ex ante limit on pro se requests is that they be clear and
unequivocal; knowing and voluntary; and timely. All the other limits
(appointment of standby counsel and termination of self-representation
once commenced) are ex post restrictions. The majority's reliance on
Martinez is therefore misplaced. The ultimate holding of Martinez
addressed the pro se right in an appellate, rather than a trial, setting. And
the Court's dicta regarding the "integrity and efficiency" restriction on
the pro se right in the trial context does not authorize judicial interroga-
tion into the "sincerity" or "legitimacy" of a pro se request.
25
request, which arose not from dilatory or disruptive stratagems but
from a sincere desire to conduct his own defense in the event the
court would not grant him new appointed counsel. The argument that
Frazier-El sought to advance on his behalf (that the court lacked juris-
diction over him as a Moorish national) was indeed a frivolous one.
But Faretta makes abundantly clear that, while pro se defendants
must practice basic decorum while conducting their defense, the tenu-
ousness of their arguments is not a basis for denying them the right
to self-representation. See id. at 834, 836.
IV.
Even though the majority's analytical detour through the "sincer-
ity" thesis is a dead end, the majority has yet another theory as to why
conditional requests for self-representation amount to an insufficient
waiver of the right to counsel. According to the majority, defendants
like Frazier-El often request pro se representation in the alternative
for the express purpose of creating reversible error on appeal. The
strategy the majority imputes to defendants like Frazier-El involves
the defendant's creation of a Catch-22, forcing the court to "``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 without counsel, thereby violating his right to
self-representation." Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir.
1995) (quoting Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.
1990)). Because the denial of the right to self-representation is a
structural defect never amenable to harmless error analysis, see
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984), and Arizona v.
Fulminante, 499 U.S. 279, 310 (1991), the majority is concerned that
artful criminal defendants will manipulate the "mutual exclusivity of
the rights to counsel and self-representation," Fields, 49 F.3d at 1029,
for the deliberate purpose of creating reversible error on review. See
majority op. at 8.
Unlike the "sincerity" thesis, the "reversible error" scenario dis-
cussed in Fields at least has a firmer doctrinal grounding in Faretta's
"clear and unequivocal" requirement. See Fields, 49 F.3d at 1029(describing the "reversible error" scenario as one of the problems the
"clear and unequivocal" requirement helps to combat). Fields, how-
ever, is distinguishable from the instant case. To begin with, the "re-
26
versible error" language in Fields is dicta. The Fields court denied the
defendant's request for pro se representation not because it was a plot
to create reversible error but because the defendant only requested
self-representation once over the course of three letters to the court
and several subsequent hearings. The single request he tendered,
moreover, was a tentative one, qualified by a comment that he "re-
gret[ted] taking this action" and was "reluctan[t]" even to act as co-
counsel "since [his] knowledge of the law[was] limited." Id. at 1033.
By contrast, Frazier-El requested self-representation on multiple occa-
sions, beginning at the outset of the pretrial proceedings. At no time
did he express any reservations about his ability or his desire to pro-
ceed pro se, in the event the court was unwilling to grant his primary
request to have newly appointed counsel.
The defendant in Fields, furthermore, was not genuinely interested
in conducting his entire defense on his own. All he really wanted was
the opportunity to participate in one discrete area of the trial: the
cross-examination of the children he was accused of assaulting. Id. at
1034. In this sense, his request to proceed pro se was really just a pre-
text for a different agenda. Because the court held that the defendant
had no right to cross-examine the children personally, it denied his
request for self-representation, given that his pro se motion was para-
sitic on his desire to engage in the forbidden cross-examination. Id.In short, Fields' discussion of the "reversible error" scenario was
not essential to its holding. Interestingly, however, Fields lends some
credence to a variant of the majority's "sincerity" thesis, even though
the majority does not seem to recognize this and fails to develop its
implications. The Fields court held that a request to proceed pro se
must, at a minimum, be clear and unequivocal, knowing and volun-
tary, and timely. Yet a pro se request could still fail, the court held,
if the defendant's underlying reasons for seeking self-representation
were illegitimate. Id. at 1034. In the instant case, the majority makes
a similar argument when holding that the district court's finding
regarding Frazier-El's "incompetence" referred only to "the
legitimacy of the request and the arguments advanced, rather than to
Frazier-El's ability to make a knowing election of self-representation
and waiver of counsel." See majority op. at 11 (emphasis added). The
suggestion is that Faretta's three-part waiver of counsel framework
may implicitly include a fourth "legitimacy" criterion. This argument,
27
however, is question-begging. It provides no criteria for distinguish-
ing legitimate from illegitimate reasons for seeking self-
representation. And it leaves unanswered the toughest question:
namely, how to reconcile the intuition that certain reasons for seeking
self-representation are improper with the unmistakable command of
Faretta, which held that courts should not be in the business of pater-
nalistically second-guessing the wisdom of a defendant's desire to
proceed pro se, "even where the defendant may ultimate conduct his
defense to his own detriment." 422 U.S. at 834.
Frazier-El's Moorish national argument is clearly a non-starter in
terms of trial strategy. Nevertheless, as the report on Frazier-El's
competency suggested, Frazier-El's argument "is loosely based on the
doctrine of the Moorish Science Temple of America, a recognized
organization in the United States." While Frazier-El had "exagger-
ated" the doctrine for his own benefit, the competency report con-
cluded that the argument was not delusional and was grounded in an
established set of religious creeds. Unlike in Fields, where the court
had a compelling reason for denying the defendant's request to cross-
examine the children he allegedly assaulted, there is no comparable
reason for denying Frazier-El the opportunity to make his Moorish
national argument simply because it strikes more enlightened judicial
minds as utter absurdity.
To focus the inquiry, however, I suggest that this court need not
reach the issue of whether Frazier-El's reasons for wanting to proceed
pro se are analogous to, or distinguishable from, the situation in
Fields. And we certainly need not reach the even thornier antecedent
issue of why some reasons for seeking pro se representation are legiti-
mate and others are not. Sidestepping these difficult conceptual issues
is possible because there is a narrower, more straightforward basis for
granting Frazier-El's pro se request. Even if the Moorish national
argument is improper, Frazier-El made clear that this was not the only
argument he would have advanced during the course of his contem-
plated self-representation. Unlike the defendant in Fields, who con-
ceded "that he desired to proceed pro se for only one purpose," id. at
1034, Frazier-El let the court know that his Moorish national argu-
ment was merely "one of the issues" he would raise at trial. See
majority op. at 4-6. In light of this statement, it was the judge's
responsibility to ask more thorough follow-up questions to determine
28
what else Frazier-El would be arguing during his self-representation.
Instead, the judge (or, more precisely, the majority standing in as a
surrogate for the judge) glibly presumed that Frazier-El's request for
self-representation was nothing more than "a manipulative effort to
assert the [Moorish national] defenses himself." The tenuous quality
of his Moorish national argument, however, was an improper basis for
denying Frazier-El's request for self-representation, given that he was
planning to make other arguments and had other reasons for wanting
to proceed pro se, unlike the defendant in Fields.
V.
There is one final issue worth revisiting, and it deals with the
majority's argument that Frazier-El was surreptitiously trying to
create reversible error by phrasing his request in the alternative. I
argued in the prior section that the "reversible error" scenario in
Fields was dicta. Even if it was not dicta, however, there are better
ways to deal with the "reversible error" problem than by creating a
judicial rule, ex ante, that all pro se requests stated in the alternative
are presumptively disfavored. Indeed, it is possible to combat the "re-
versible error" scenario in a way that both respects a defendant's
Faretta right to self-representation and guards against its abuse. The
Ninth Circuit's opinion in Adams v. Carroll is instructive. Holding
that the conditional nature of a defendant's request for self-
representation does not make it equivocal, the court explained:
This conclusion is reinforced when tested against the pur-
poses underlying the unequivocality requirement. Adams
was not seeking to waive his right to counsel in a thought-
less manner; the trial court engaged him in extensive discus-
sion regarding the difficulties of proceeding in pro per.
Adams nevertheless persisted, choosing to fend for himself
rather than rely on counsel whom he mistrusted. Nor was his
request a momentary caprice or the result of thinking out
loud; he made the same request over and over again, at
nearly every opportunity. Had the request been granted, an
appeal based on the denial of the assistance of counsel
would have been frivolous, in light of the earnestness and
frequency of his requests to represent himself. None of the
purposes served by the requirement would be furthered by
29
treating a conditional request for self-representation as
equivocal.
Id. at 1445.
I also note the significance of the immediately preceding passage.
Right before concluding that the defendant's conditional pro se
request was in fact "clear and unequivocal," the Adams court raised
concerns about defendants concocting a "reversible error" scenario by
phrasing their pro se requests in the alternative -- the exact issue so
worrisome to the majority. In fact, the language from Fields v.
Murray that the majority cites to underscore its"reversible error" con-
cerns is lifted verbatim from Adams, which was decided six years ear-
lier. In effect, the majority selectively borrows language from Adams
that helps it rule against Frazier-El but conveniently ignores the ulti-
mate holding of Adams, which undeniably inures to Frazier-El's bene-
fit -- given the obvious parallels between the nature of the
conditional pro se requests made by the defendants in the two cases.
Had the majority read Adams holistically, rather than in a piece-
meal fashion, it would have seen that the case offers some simple
antidotes to the "reversible error" Pandora's Box that the majority is
reluctant to open. First, Adams suggests that the district court must
conduct a thorough and careful colloquy with the defendant to pin
down precisely what the defendant's wishes are. If a defendant is
making ambiguous gestures toward self-representation, the court must
confront the defendant and force him to make a more exacting state-
ment, ensuring that the defendant understands precisely what his
rights are along with the serious consequences of waiving counsel.
There is no reason that a conditional pro se request should send the
district court into analytical disorientation. Rather than flatly denying
a request for self-representation because the form of the request is a
conditional one, the court should simply frame the conditional request
in clear terms and make the defendant acknowledge on the record that
the court has properly understood the request. For example, the court
should say something to the defendant such as: "You want new coun-
sel; but if I deny you that, you then want to represent yourself. Is that
correct? And you understand that if I deny your request for new coun-
sel and grant your fallback request for self-representation, you thereby
waive your right to counsel and cannot later come back and say that
30
my decision to grant you self-representation was a denial of your right
to counsel. Do you understand that? If so, do you still want to repre-
sent yourself?"
Forcing defendants to articulate their position in such precise terms
is one step toward combating the "reversible error" scenario. The sec-
ond step is even simpler. As long as the district court elicits the pre-
cise contours of a defendant's request, appellate courts will not
countenance arguments by defendants on appeal that the district court
improperly allowed them to proceed pro se. The district court need
not worry about clever defendants manipulating them into "reversible
error" as long as the district court does a sufficient job of engaging
the defendant on the record. See Bartlett, 44 F.3d at 100 ("The entire
procedure requires not only an intricate assessment of the defendant's
intent, knowledge, and capacity, but a strong measure of patience as
well.") (internal quotations omitted). It is no doubt easier when the
defendant makes a simple request to proceed pro se, uncluttered by
conditions and fallback scenarios. By trying to make things easier on
the district court, however, the majority dangerously erodes defen-
dants' fundamental Faretta rights by requiring, it seems, "a Zen-like
persistence in uttering a single mantra," Fields, 49 F.3d at 1044(Ervin, J., dissenting), and the "ability to spout crisp legalese," id.,before a court will grant a request for self-representation.
VI.
While the majority pays nominal deference to the pro se right rec-
ognized in Faretta, the unmistakable subtext of its opinion is that the
right is a nuisance and a constitutional anachronism that courts should
curtail whenever possible. For example, the majority cites Martinez
for the proposition that, "with the increased availability of competent
counsel, the historical reasons for recognizing the right do not have
the same force." See majority op. at 10.
The original historical justification for the pro se right, however,
is but one source of its constitutional legitimacy. Equally important
to the Faretta court was the insight that the self-representation right
grows out of "that respect for the individual which is the lifeblood of
the law." 422 U.S. at 834 (internal quotations omitted). "An unwanted
counsel ``represents' the defendant only through a tenuous and unac-
31
ceptable legal fiction," id. at 821, because it is ultimately the "defen-
dant, and not his lawyer or the State, [who] will bear the personal
consequences of a conviction." Id. at 834.
Unlike the antiquated historical argument for self-representation,
Faretta's "autonomy" rationale is as compelling today as it was cen-
turies ago and is undiminished by the ready availability of competent
counsel in modern times. The Martinez Court recognized as much,
holding that "an individual's decision to represent himself is no lon-
ger compelled by the necessity of choosing self-representation over
incompetent or nonexistent representation; rather, it more likely
reflects a genuine desire to ``conduct his own cause in his own
words.'" Martinez, 120 S. Ct. at 689 (quoting Faretta, 422 U.S. at
823).
To be sure, the pro se right is not without limits. Appellate courts
are not free, however, to superimpose additional layers of restrictions
that reduce the availability of the pro se right. The majority's decision
to do so suggests that it is less concerned with analytical and doctrinal
integrity than with surreptitiously eroding a disfavored constitutional
right.
I respectfully dissent.
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